There is no mistake in the title of this article. Trial by combat was quite legal in Britain, until the last full year of the Regency. Essentially, trial by combat was a type of duel which was sanctioned by the courts, as had been the case since the Middle Ages. In Britain, this practice was not officially abolished until two hundred years ago, this month, when Parliament took up the issue, at the request of the Attorney General for England and Wales. A Regency author might find inspiration in any or all of the aspects of this situation for an upcoming story of romance.
The abolition of trial by combat . . .
Wager of battle, which was how trial by combat was more generally known in Britain, had not been part of Anglo-Saxon law or culture. It had it origins in Germanic law and was incorporated into English Common Law by the Normans when then invaded the country, in 1066. Wager of battle was considered an honorable means by which to settle differences between two defendants in a criminal or civil trial. However, there were some defendants who were ineligible to participate in trial by combat. Those defendants who were caught in the act of committing the crime, attempted to escape from prison, or if the evidence of their guilt was overwhelming, did not have the right of challenge. In addition, if the plaintiff in a trial was female, over sixty years old, a minor, or physically incapacitated, they had the right to decline the defendant’s challenge and the case would then be decided by a jury. Curioiusly, residents of London were considered to be exempt from this practice and could not be compelled to accept a challenge to trial by combat. There were dangers for defendants, if they chose wager of battle. In general, trial by combat was to the death. Should a defendant survive the battle, but they were defeated, they would be immediately hanged. However, if the defendant defeated his opponent, or was able to hold off their opponent for the day, from sunrise to sunset, he would be considered exhonerated and would be given his liberty.
The instances of trial by combat began to diminish in England when trial by jury was introduced in the thirteenth century. The emergence of the legal profession at about that same time helped to further reduce those combat trials. Lawyers were not eager to lose business, or to see potential clients lose their lives a wager of battle. Therefore, most lawyers actively encouraged their clients to choose trial by jury instead, naturally, allowing their lawyer to represent them before the court. From then on, only a few parties, usually hot-headed members of the aristocracy, engaged in trial by combat. The last know trial by combat took place at Dublin Castle, during the reign of Queen Elizabeth I. There were several more wagers of battle which were planned over the course of the sixteenth and seventeenth centuries, usually between important aristocrats. These battles were avoided because the soverign of the time was able to step in and resolve the issue before the defendants took up their weapons. Late in the seventeenth century, and at least twice in the eighteenth century, proposals were put before Parliament to abolish trial by combat. But there were enough members who objected that the practice remained legal in Britain, right through the turn of the nineteenth century.
Sadly, the impetus to abolish trial by combat in Britain had its roots in the rape and murder of a young woman in Warwickshire. Mary Ashford was just twenty years old, attractive and friendly, when she went missing on the night of Whit Monday, in May of 1817. That evening, with friends, she had attended an assembly at Tyburn House, a coaching inn located along the Chester Road. The following Tuesday morning, 27 May 1817, a group of workmen found the young woman’s body in a marl pit filled with brackish water, not far from the village of Erdington, where Mary’s family lived. There was some evidence that the girl had been raped, but there was no clear evidence of how she had lost her life. It was known that a young man from the area, bricklayer Abraham Thornton, had accompanied Mary home from the assembly at Tyburn House. Initially, the couple had been walking along the Chester Road, around midnight, with Mary’s friend, Hannah Cox and Hannah’s beau, Benjamin Carter. Mary had told her friends that she intended to spend the night at her grandfather’s house, rather than walk all the way back to her uncle’s house, where she lived and worked as his housekeeper. At about half-past four on Tuesday morning, Mary came to the cottage of Mrs. Butler, Hannah’s mother, in order to change from her party clothes into to her working clothes, which she had left there the previoius evening. Mary left the house ten or fifteen minutes later, after she had changed. That was the last time anyone saw her alive.
Abraham Thornton had gotten something of a reputation as a bad boy who enjoyed the ladies. It turned out that he and Mary had spent most of the night together, under a tree, on the edge of a recently harrowed field. The following day, he was arrested for the rape and murder of Mary Ashford. While in custody, Thornton was questioned by several authorities and, though he admitted having consensual sexual intercourse with her, he resolutely and steadfastly denied doing anything to harm Mary or taking her life. He repeatedly asserted that she was alive the last time he saw her, in the wee hours of the morning. However, because Mary had been well-liked in the community and was thought to be a respectable young woman, an "honest" girl, those who heard Thornton’s version of that Monday night were certain he must have forced himself on Mary against her will. Yet, Mary Ashford was her usual cheerful self, and made no mention of any attack or assault by anyone, when she visited Hannah Cox at her mother’s house early on Tuesday morning to change into her work clothes. When her body was found, she was wearing those same work cloths, a simple pink gown and a red spencer.
Despite the fact that there were several witnesses who could provide Abraham Thornton with an alibi for the time during which it was believed that Mary Ashford was killed, he was eventually brought to trial for her murder, in August of 1817. Thornton’s defense attorney, Edward Sadler, described those investigating the case as "persecutors" rather than prosecutors, since it was clear they held great animosity against Thornton. Many of them were also close to the Ashford family and were determined to see Thornton convicted of the crime in order to give the family some sense of justice. However, there was very little real evidence against Thornton. Once all the testimony had been heard during the trial, after a very brief deliberation, during which they did not even leave the jury box, the members of the jury found Thornton not guilty of the charges of rape and murder.
Mary Ashford’s family was outraged that the man they believed violated and murdered her was acquitted. They all refused to accept the verdict of the jury. However, English law would allow only Mary’s legal heir to seek justice for her by way of a private appeal. Her father and other hardy male members of her family were prohibited from bringing a case against Abraham Thornton. Therefore, as Mary’s legal heir, her younger brother, William Ashford, filed a private appeal against Abraham Thornton, in the spring of 1818. Thornton was once again arrested and imprisoned, in anticipation of the Ashford v Thornton trial. On the opening day of the court case, Abraham Thornton claimed right of wager by battle, and for good measure, threw down a yellow leather glove, in lieu of a gauntlet, at the feet of William Ashford. One of Thornton’s lawyers for this new trial, William Reader, stepped forward and explained to the court that he and his colleagues had recommended that their client claim wager by battle as the best method by which to deal with this new trial. They did so because there was so much prejudice against Thornton in the community that he had little hope of an impartial trial or a fair verdict.
In court, Ashford and his lawyers argued that the evidence against Thornton was so comprehensive that Thornton was not eligible to participate in trial by combat. However, the court carefully considered the request and came to the conclusion that the evidence against Thornton was not strong enough to prevent him from engaging in trial by combat. And, since the practice had never been officially abolished in England, they decided that, unlike a duel, trial by combat was a legal option for the defendant, if he was willing to risk his life to prove his innocence. In the end, William Ashford, who was only a teenager at the time, and not physically strong, was not allowed to choose a champion to fight for him and he had to refuse to participate in a wager by battle. Therefore, Abraham Thornton was duly considered not guilty and was once again released from prison. The Ashford family, and many others living in the area, believed that Thornton, a big and very strong man, had evaded justice twice, the second time by the physical strength which had enabled him to violate and murder Mary in the first place. It may come as no surprise that soon thereafter, Abraham Thornton left England and settled in the United States.
The Ashford v Thornton trial was the talk, not just of the town, but of the whole country. People all over the British Isles, from the aristocracy to the working classes, were discussing the case. In fact, all that talk may have given another defendant similar ideas, as it is known that, early in 1819, the courts were dealing with another request for trial by combat. However, the participants in that case have never been identified and in the end, there was no trial by combat for them, or anyone else. It is believed that this second case caused grave concern for Samuel Shepherd, the serving Attorney General for England and Wales. Shepherd was becoming increasingly apprehensive that this practice might set a trend in the courts. Therefore, Mr. Shepherd submitted a bill for consideration by Parliament. This proposed bill called for the abolition of wager of battle, or trial by combat. In addition, it also called for the elimination of the right of private appeal of verdicts in public jury trials. Shepherd believed the second part of his proposal was equally important, since it was likely that trial by combat was most often going to be invoked in such private court cases.
Shepherd submitted his proposed bill to Parliament, through the proper authorities, early in 1819. However, it took quite some time for it to work its way through the Parliamentary process. There were many discussions of both issues, as quite a number of members of Parliament had differing views with regard to both aspects of the proposed changes to what was essentially English Common law. Eventually, enough members of Parliament were able to reach a consensus that the bill was finally passed, in June of 1819. The statute, identified as 59 George III., c. 46, read, in part, "all appeals of treason, murder, felony, or other offenses shall cease," and that there should no longer be any wager of battle allowed in either criminal or civil controversies. There would never again be an instance of wager of battle or trial by combat anywhere in Britain.
[Author’s Note: For those of you who would like more detail on the Ashford case and the aftermath which brought about changes in English law, a book on the topic was published last year: The Murder of Mary Ashford: The Crime that Changed English Legal History, by Naomi Clifford.]
Some literary scholars believe that the Ashford v Thornton trial had a significant impact on the work of Walter Scott. Though Scott had been flirting with medieval subject matter in his poetry since the beginning of the century, he focused most of his longer works on the more recent, local history of Scotland. Yet, in December of 1819, at the end of the same year in which Abraham Thornton threw down his leather "gauntlet," Scott published Ivanhoe, the first of his novels to be set in the Middle Ages, and which comes to a dramatic climax in a trial by combat. A number of historians are also of the opinion that all of the notoriety surrounding the Ashford v Thornton trial turned many minds in Regency Britain back to the Middle Ages. Certainly, Gothic tales, and even decoration, became increasingly popular in the wake of the trial.
Dear Regency Authors, might the events surrounding the Ashford v Thornton trial provide some historical embellishments for an upcoming tale of romance set the last year of our favorite decade? Will some of your characters discuss, or even argue over, the news reports about Abraham Thornton’s claim of trial by combat? Perhaps the heroine, a governess, has to deal with the wild fantasies of her charge, a young woman who has taken to dreaming of men in armour fighting over her? The again, might the hero be a member of Parliament who has to deal with the issue of abolishing wager of battle and the right of private appeals of public jury verdicts? How might that play out in the story? Are there other ways in which the Ashford v Thornton trial or the Parliamentary act to abolish wager by battle and the right private appeals of public jury verdicts might serve the purpose of a Regency romance?