It Happened on April 20th

"It is the law of England, Mr. Clarke; we must not call it murder," said Lord Ellenborough.

The Case of Ashford v Thornton is Concluded, 1818

In this case, it's not the crime that's interesting -- it's the trial.


In the United States, we're so used to the law's prohibition against double jeopardy that we sometimes forget that this has not always been the case. It certainly wasn't the case for Abraham Thornton, when, in 1818, he was accused for the second time for the murder of Mary Ashford.


Abraham Thornton was 24 years old, a heavy-set, healthy man. Some said he was a good-looking man; some thought his looks repulsive. On the 26th of May, 1817, he attended a party (a feast and dance) at The Three Tuns, a public house in Warwickshire, England, where he happened to notice a young woman named Mary Ashford.


Mary Ashford was 20 years old, and worked as a housekeeper for her uncle in Warwickshire, England. She was attending the party with a female friend. Thornton asked who she was, and when told her name, he claimed that he had been intimate with her sister on three occasions, and declared that he would be so with Mary, also. At the end of the evening, Thornton, Mary, and Mary's friend all left the pub together.


The next morning, Mary's body was found drowned in a water-filled pit. Thornton, who had been seen leaving with Mary, was questioned. He admitted having sexual intercourse with Mary, but denied killing her. When he was searched, blood was discovered on his underclothing. He was promptly arrested and charged with rape and murder.


Naturally, this was an emotionally-charged trial and local opinion was strongly against Thornton. Pamphlets were published arguing his guilt. Poems were written about him. When the day of the trial arrived, the courthouse was packed -- with men, since, due to the sensational nature of the crime, women were not admitted to the trial.


As it turned out, Thornton had a pretty good defense. He had been spotted at several locations by several different individuals that night and together they made a pretty good alibi. In order to have done what it was claimed he had done, he would have had to chase Mary down, rape her, kill her, put her body in the well, and then travel three miles -- all in under five minutes.


The blood proved to not be much of a mark against him either. An autopsy showed that Mary had died by drowning, and the only lacerations on her body were in her genital area and not inconsistent with consensual sex. In addition, she had been a virgin, and was menstruating at the time of her death.

After 10 hours of testimony, and another two hours of closing arguments, the jury was called on for its decision. They didn't even leave the box, and took less than six minutes to acquit Thornton.

Naturally, the public was outraged at the verdict. The public had already decided Thornton was guilty, and they wanted a guilty verdict. Across the country, newspapers chimed in, and a collection was taken up to persecute, er, prosecute Thornton further.


Now, all this brings up the really interesting part of the case. At that time it was possible, if a defendant was acquitted, for an individual to bring a private appeal to court, and prosecute again.

This is exactly what Mary's brother, William Ashford did. Thornton was again charged with Mary's rape and murder, and a trial was scheduled.


We can never know exactly what Thornton was thinking, but it stands to reason that he must have thought that, with public opinion so very strongly against him, he stood little chance of a fair jury trial. In any event, his answer in court to the charges this time was, "Not guilty; and I am ready to defend the same with my body."


Trial by Battle was an ancient custom, brought to England by the Normans, and it was still on the books. In cases of retrials by private prosecution for murder (and also treason and certain felonies), it allowed the accused to force the plaintiff to settle the matter by person combat. Thornton was challenging Ashford to a literal fight to prove his innocence.

The Ccurt of the King's Bench

The Battle did not necessarily have to be to the death, although it could be. If the defendant lost but still lived, he would be hanged immediately. If the plaintiff lost, the defendant was a free man. If the plaintiff cried craven ("I am vanquished"), he was declared infamous, lost the rights of a freeman, and was liable for damages. If the defendant could hold the plaintiff off from sunrise to sunset, he was declared the victor.


There were certain conditions under which a plaintiff could decline the challenge. If the plaintiff was a woman, over 60 years old, a minor, blind, lame, a Peer of the Realm, a priest, or a Citizen of London, he was not required to fight. Also, the defendant could be denied the right to Trial by Battle if he was taken in the act of committing the crime, had tried to escape, or if there was extremely strong evidence of his guilt. None of these conditions applied in the case of Ashford v Thornton.

The prosecution argued that Thornton should not be allowed to add the murder of the brother to the murder and rape of the sister, but the Lord Chief Justice, Lord Ellenborough answered, "It is the law of England, Mr. Clarke; we must not call it murder." The prosecution then argued that the evidence was so strong against Thornton that the Right to Trial by Battle must be denied. The court wasn't having any of that, either. Ashford must accept Thornton's challenge, or give up the prosecution. Ashford, who was a slightly-built youth of 22, gave up the case.


The following year a bill was passed by Parliament outlawing both private appeals and Trial by Battle. It was rushed through, with all three of the required readings taking place in one night, since it was thought that another pending case was likely to have a similar outcome.


Thornton, who found public opinion toward him so hostile that he was forced to leave England, booked passage to New York on the Independence, but passengers were outraged when they found out who he was and demanded that he be put ashore. He later managed to leave on the Shamrock in September, 1818. He found work in the United States as a bricklayer, and died in Baltimore around 1860.