Was there ever actually a “right to trial by combat”? If so, when, where, and how was that right invoked and administered?

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mikedash

There certainly was, and as it was last invoked in a British court as recently as 1817, we have a very good idea how it worked.

The case we need to look at was a notorious one in its time, though it is largely forgotten now. Abraham Thornton, a strongly-built builder's son aged 24, met Mary Ashford, 20, at a dance held in May 1817 in Erdington, a village some way outside Birmingham. At the end of the evening, she agreed to let him walk her home. The next morning her body was hauled from a flooded pit not far from her home. Thornton was the obvious culprit, and he was suspected of rape and arrested for murder. The case against him was strong, but not absolutely conclusive (the key evidence was a line of muddy footprints which were much disturbed before the police could get a look at them), and at the end of his trial he was found not guilty.

Ashford's family was outraged and sought further legal remedies. Thornton could not be charged again for the same crimes – the law of double jeopardy forbade that – but their lawyers advised them there was a legal remedy still open for them, the so-called Appeal of Murder. This was a piece of law, dating back to Norman times, which allowed a private party to appeal a not guilty verdict in a small number of cases, including those involving murder, treason, and Writs of Right – a form of trial that determined the rights to pieces of land – the appeal in this case being lawful because the prosecuting party had changed. All British felonies, as you may well know, are prosecuted by the crown, and not the families of the victims.

The Appeal of Murder operated under a rather different system of rules than those which applied to a crown prosecution. A case could only be brought by the victim's heir, which in this case was Mary Ashford's brother. It had to be brought within a year and a day of the crime being committed. And, most pertinently for your query, while it had since at least 1650 been customary for the appellee in an Appeal of Murder to face a second jury, the statute books still allowed for the old Norman remedy in such cases to be carried out. This was a trial by battle.

The idea of fighting, rather than trusting his chances to a jury, appealed to Thornton. He was young, brawny and an experienced fighter, while William Ashford was a "meek young labourer... a timid weakling of 21" who looked to have little prospect of victory in a trial by battle. When the appeal was heard at Westminster on 17 November 1817, and the Clerk of the Crown Office asked the question:

Abraham Thornton, are you guilty or not guilty of the said felony of murder whereof you stand appealed?

Thornton took out a pair of leather gauntlets, pulled one onto his left hand, and then produced a slip of paper written by his lawyer and read out:

Not guilty; and I am ready to defend the same with my body!

He then threw down the right gauntlet onto the floor of the court, thereby offering battle to William Ashford.

As I mentioned, this procedure had not actually been carried out in an English court for more than 150 years, and it caused considerable consternation. Ashford's counsel, Nathaniel Clarke, protested that

it would appear to me extraordinary indeed, if the person who had murdered the sister should, as the law exists in these enlightened times, be allowed to prove his innocence by murdering the brother also, or, at least, attempting to do so.

He was rebuked by one of the judges, Lord Ellenborough, who pointed out

It is the law of England, Mr Clarke – we must not call it murder.

The exact stipulations of the law may be of some interest at this point. As revised in the time of Henry VII, the statutes governing the Appeal of Murder set out the following conditions for a trial by battle:

The combat must be staged upon the worst plot of ground, 60 feet square, that could be found within the limits of the King's Bench, and in the presence of that Bench's judges. The two parties ... were to be clothed in leather, and armed with staves. Before fighting, they must make an oath on the Bible that they had used no sorcery nor witchcraft which might give them an unfair advantage. They would then fight until one was killed or yielded – if need be, until sunset.

There were several possible outcomes of such a trial. If Thornton was to kill Ashford, he would go free. If Ashford yielded, he would forfeit all his rights as a free man and become, effectively, an outlaw. Should Thornton yield, he would be immediately hanged.

The outcome of all this was – from the legal point of view at least, though certainly not from William Ashford's – rather unsatisfactory. When the court reconvened four days later, Ashford's lawyer submitted that his client "prayed no further judgement" – that is, had thought through his chances and decided not to continue with the prosecution. Several legal authorities have argued that, even if he had attempted to press ahead at this point, Thornton's lawyers would have been able to successfully argue that, in failing to pick up the gauntlet the appellee had hurled to the ground, Ashford had in any case already declined battle. The proceedings then rumbled to a close with another piece of legal theatre: Thornton was formally arraigned under the laws governing Appeal of Murder, and pled to the Attorney General "autrefois acquit", that he had already been acquitted.

This plea was accepted and he walked free. (Gould notes at this point that "Lord Ellenborough tactfully suggested that he should leave by the back entrance, and thus escape the attentions of a large and ferocious mob which had gathered at the front of the building to give him a warm reception.") He emigrated to the US, where he is thought to have changed his name and lived on in the Baltimore area until 1860. Ashford died in Birmingham in 1867. As for the Appeal of Murder, the Attorney General took immediate steps to introduce a bill which abolished Wager of Battle under English law, and this passed in June 1819. Abraham Thornton thus became the last man to offer battle in an English court.

Sources

Anon, Full Report on the Trial of Abraham Thornton for the Wilful Murder of Mary Ashford (1867)

Rupert T. Gould, "Abraham Thornton offers battle," in Enigmas (1929)

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