Apr 202016
 

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On this date in 1819 Ashford v Thornton (106 ER 149), an English law case in the Court of King’s Bench was concluded. The case was unusual in that it upheld the right of the defendant, on a private appeal from an acquittal for murder, to trial by combat – known in English law as “wager of battle (or battel).”

In 1817, Abraham Thornton was charged with the murder of Mary Ashford. Thornton had met Ashford at a dance, and had walked with her from the event. The next morning, Ashford was found drowned in a pit, with little outward signs of violence. Although public opinion was heavily against Thornton, the jury quickly acquitted him, and also found him not guilty of rape. Mary’s brother, William Ashford, launched an appeal, and Thornton was rearrested. Thornton claimed the right to trial by combat, a medieval usage that had never been repealed by Parliament. Ashford argued that the evidence against Thornton was overwhelming, and that he was thus ineligible to wage battle.

The court decided that the evidence against Thornton was not overwhelming, and that trial by battle was a permissible option under law; thus Thornton was granted trial by battle. Ashford declined the offer of battle and Thornton was freed from custody. Appeals such as Ashford’s were abolished by statute in 1819, and with them the right to trial by combat.

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Trial by combat was a procedure which had been brought to Britain by the Normans; it was not present in Saxon law. It was authorized in “appeals of murder”, that is, retrials by private prosecution following an acquittal for murder. If the plaintiff (in an appeal of murder, the next-of-kin of the deceased) requested such a retrial, the defendant could respond with the “wager of battle,” requiring the plaintiff to settle the matter by combat, with the outcome to be ordained by God. Such an appeal, and such an offer of battle could also take place following an acquittal for treason or certain other felonies. Appeals of murder acquittals were uncommon, had to be brought within a year and a day of the death, and were generally tried by jury. In 1815, three years before Ashford v Thornton, an appeal of murder was brought in Dublin in O’Reilly v Clancy, and the defendant demanded the wager of battle. Chief Judge William Downes (later Lord Downes), faced with this case, asked:

Can it be possible that this “wager of battle” is being seriously insisted on? Am I to understand that this monstrous proposition as being propounded by the bar—that we, the judges of the Court of King’s Bench—the recognized conservators of the public peace, are to become not merely the spectators, but the abettors of a mortal combat? Is that what you require of us?

No combat took place in Ireland; the case was settled as Clancy agreed to plead guilty and was transported for life.

It is uncertain when the last actual trial by combat in Britain took place. While some references speak of such a trial being held in 1631, records indicate that King Charles I intervened to prevent the battle. A 1638 case is less clear; the King again stepped in and judges acted to delay proceedings. No record survives of the outcome of the case, but no contemporary account speaks of the trial by combat actually taking place. The last certain judicial battle in Britain was in Scotland in 1597, when Adam Bruntfield accused James Carmichael of murder, and killed him in battle. The last in England occurred in 1446: a servant accused his master of treason. The master drank too much wine before the battle and was killed by the servant.

The wager of battle was not always available to the defendant in an appeal of murder. If the defendant was taken in the mainour (that is, in the act of committing his crime), if he attempted to escape from prison, or if there was such strong evidence of guilt that there could be no effective denial, the defendant could not challenge. Similarly, if the plaintiff was a woman, above 60 years of age, a minor, lame or blind, he or she could decline the challenge, and the case would be determined by a jury. Peers of the realm, priests, and citizens of the City of London could also decline the battle if challenged. If the actual battle took place, it would occur in judicial lists, 60 feet (18 m) square, following the taking of oaths against witchcraft and sorcery. If the defendant was defeated, and if he was still alive, he was to be hanged on the spot; not even the King could pardon him from the divine judgment against him. However, if he defeated his opponent, or if he were able to fend off his opponent from sunrise to sunset, he would go free. If the plaintiff said the word craven (“I am vanquished”), and gave up the fight, he was to be declared infamous, deprived of the privileges of a freeman, and was liable for damages to his successful opponent.

Proposals to abolish trial by battle were made in the 17th century, and twice in the 18th, but were unsuccessful.  In 1774, as part of the legislative response to the Boston Tea Party, Parliament considered a bill which would have abolished appeals of murder and trials by battle in the North American colonies. It was successfully opposed by MP John Dunning, who called the appeal of murder “that great pillar of the Constitution”. Writer and MP Edmund Burke, on the other hand, supported the abolition, calling the appeal and wager “superstitious and barbarous to the last degree”.

Thornton

Thornton

The acquittal of Thornton was met with outrage in Warwickshire, and across the country. Newspapers published letters and comments which were extremely hostile toward Thornton. The leading papers in this campaign were the Lichfield Mercury and the Independent Whig, but even The Times expressed delight when it learned that the case would be further pursued. Funds were obtained from contributors, and a local solicitor prevailed on Mary’s brother, William Ashford, to bring an appeal of murder against Thornton. William Ashford was described as “a plain country young man, about twenty-two years of age, of short stature, sandy hair, and blue eyes”. A writ of appeal was issued on 1 October 1817, and Thornton was arrested on a warrant issued pursuant to that writ. As the appeal was to be tried before the King’s Bench in London, Thornton was taken to London on 28 October. Supporters of the Ashford family did their best to find evidence to upset his alibi. They had little success. On 6 November, the case first came before the Court, but was quickly adjourned until the 17th when Thornton’s lawyer indicated that he had just been instructed, and needed more time to advise his client as to his plea. The initial hearing was little attended, apparently because the public did not realize the notorious Thornton would be there in person.

The Warwickshire magistrate, Bedford, was now acting as solicitor for William Ashford. At first, he saw no reason for uneasiness in the appeal. However, on 11 November, he wrote to his clerk,

I am sorry to say that difficulties have been started likely to occasion much trouble and perhaps ultimate defeat. it seems the Appellee [Thornton] has the option of waging Battle and of challenging the Appellor [William Ashford] in single combat which if not accepted by the Appellor the suit is lost and, if accepted, and the Appellee can hold out from sun rise to sun set, then he wins the contest and claims his discharge, otherwise his election subjects him not only to a good threshing [sic] but also the pain of death into the bargain. It is rumoured here that is the plea intended to be set up by the Def. and unless we can devise any means by arguement  to induce the Court not to allow it, I am very apprehensive our poor little Knight will never be able to contend the Battle with his brutish opponent.

When the case came to be heard in the King’s Bench on 17 November, a huge crowd packed Westminster Hall to such an extent that counsel had great difficulty in entering. When Thornton was called upon for his plea, he responded, “Not guilty; and I am ready to defend the same with my body.” He then put on one of a pair of leather gauntlets. Thornton threw down the other for William Ashford to pick up and thus accept the challenge, which Ashford did not do. Instead, his counsel, Nathaniel Clarke, argued that Thornton should not be able to compound his murder of the sister with an attempt to murder the brother, to which the Lord Chief Justice, Lord Ellenborough responded, “It is the law of England, Mr Clarke; we must not call it murder.” Clarke then argued Ashford’s youth and lack of bodily strength as a reason not to allow the battle. Thornton’s lawyer, in reply, stated that Ashford’s counsel should not waste the Court’s time by arguing that trial by battle was unwise because of Ashford’s physical condition, but should file responsive pleadings and allow the case to move forward. He also noted that he and his co-counsel had advised Thornton to wage battle out of concern that with the “extraordinary and unprecedented prejudice” against the defendant, a fair jury could not be obtained. The matter was adjourned to 22 November to allow Ashford’s counsel to file pleadings.

At subsequent hearings, each side submitted replications (affidavits) with his version of the evidence. Ashford sought for the Court to rule that the evidence against Thornton was strong and that the defendant was thus ineligible to wage battle; Thornton sought the opposite. Much of the case was argued between 6 and 8 February 1818, but one of Ashford’s counsel, Joseph Chitty, asked for and received more time so he could reply to the other side’s arguments, and the matter was adjourned until 16 April. Chitty then responded but was so often interrupted in his argument by the judges that when he sat down, according to Sir John Hall in his book on the affair, “it was clear to everyone in Court that his client had lost his case”.

The judges conferred for about a quarter of an hour, and then delivered judgment seriatim (one after the other). All four ruled for Thornton, holding that the evidence against him was not so strong as to oust his right to battle. Lord Ellenborough stated that

The discussion which has taken place here, and the consideration which has been given to the facts alleged, most conclusively show that this is not a case that can admit of no denial or proof to the contrary; under these circumstances, however obnoxious I am myself to the trial by battle, it is the mode of trial which we, in our judicial character, are bound to award. We are delivering the law as it is, and not as we wish it to be, and therefore we must pronounce our judgment, that the battle must take place.

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After the other judges delivered their judgments, Lord Ellenborough concluded,

The general law of this land is in favour of the wager of battle, and it is our duty to pronounce the law as it is, and not as we may wish it to be. Whatever prejudices may exist therefore against this mode of trial, still as it is the law of the land, the Court must pronounce judgment for it.

However, Lord Ellenborough indicated that Ashford could ask that Thornton be allowed “to go without a day”, that is, be released without obligation to return to court. The matter was adjourned until 20 April for Ashford to consider his options, whether to allow Thornton’s release or meet him in battle. On 20 April, Ashford’s counsel indicated that he had no objection to Thornton’s discharge, so long as no action would be taken against his client. With the appellant reassured on that point, the appeal was dismissed. Thornton was then given a pro forma arraignment on the murder charge, to which he interposed a plea that he was acquitted previously. The plea being accepted, the case was ended, and Thornton was freed. With an angry mob outside, Thornton left (at Lord Ellenborough’s direction) through a side door.

In June 1819, Lord Eldon, the Lord Chancellor, introduced a bill to abolish private appeals following acquittals, and also abolish trial by battle. The act passed in great haste, with all three of the required readings of the bill in the House of Lords passing on one night. According to Sir Robert Megarry, who wrote of Ashford v Thornton in 2005, the haste was due to a wager of battle being made in another case, though the names of the parties are not known. The act, which was recorded as 59 Geo. III, Chapter 46, recited, “whereas appeals of murder, treason, felony, and other offences, and the manner of proceeding therein, have been found to be oppressive; and the trial by battle in any suit, is a mode of trial unfit to be used; and it is expedient that the same should be wholly abolished.” The Act abolished appeals of murder and other offences, and enacted in section 2: “that from and after the passing of this act, in any writ of right now depending, or which may hereafter be brought, instituted, or commenced, the tenant shall not be received to wage battel, nor shall issue be joined nor trial be had by battel in any writ of right; any law, custom, or usage to the contrary notwithstanding.”

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Scholars have argued that Ashford v Thornton inspired the judicial combat which is the climax of Sir Walter Scott’s Ivanhoe. Scott mentioned the case in his other writings, discussed it with his friends, and backdated the dedication to the book two years to the date of Thornton’s wager of battle. An attempt was made in 1985 to claim trial by combat, brought by two brothers in Scotland who were accused of armed robbery, on the grounds that the abolition did not apply in Scotland. The attempt failed when the defendants could offer no evidence to defeat the statutory presumption that Parliamentary acts apply to the entire United Kingdom. In 2002, a 60-year-old man, faced with a £25 fine for a minor motoring offense, appeared before magistrates and demanded trial by combat against a champion to be nominated by the Driver and Vehicle Licensing Agency. He contended that trial by combat was still valid under European human rights legislation. Magistrates fined him £200, with £100 costs (presumably for being an idiot and wasting the court’s time).

If you are going to do battle from sunrise to sunset, it would be a good idea to eat appropriately a and head of time. Carbohydrate loading, commonly referred to as carb-loading or carbo-loading, is a strategy used by endurance athletes, such as marathon runners, to maximize the storage of glycogen (energy source) in the muscles and liver. Carbohydrate loading is generally recommended for endurance events lasting longer than 90 minutes. Many endurance athletes prefer foods with low glycemic indices for carb-loading due to their minimal effect on serum glucose levels. Low glycemic foods commonly include fruits, vegetables, whole wheat pasta, and grains. Many marathoners and triathlon participants have large pasta dinners the night before the race. Since muscles also use amino acids extensively when functioning within aerobic limits, meals should also include adequate protein. Large portions before a race can, however, decrease race-day performance if the digestive system has not had the time to process the food fully.

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If I get in the spirit of carb-loading I usually eat linguine with clam sauce. This is one of those recipes that I haul out routinely because it is quick and easy, although you can dress it up to make it fancier for guests if you want.

My usual (simple) version is to set a large pot of salted water to boil and then cook the pasta until al dente. Linguine is my preference, but I’ll use whatever is on hand. This morning I made penne. Whilst the pasta is cooking put a jar of small clams plus their juice in a wide, deep pan and set it to simmer. Add one or two cloves of garlic minced fine, some fresh parsley chopped small, and a little extra virgin olive oil. Simmer very gently as the pasta cooks. The proportions are up to you.  I like a lot of garlic.  Drain the pasta and add it to the clam sauce. Remove from the heat and stir to mix thoroughly. Serve in a heated bowl. It is not customary to add cheese but you can add a few flakes of dried hot peppers to individual servings.

If you want a fancier dish, use fresh whole clams. Poach them in a little clam juice in a covered pan until they open. Add garlic, parsley and olive oil to the poaching water. Remove the clams with a slotted spoon and add the cooked, drained pasta to the liquid. Serve the pasta with the clams in their shells on top.

 Posted by at 11:56 am

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