By Ryan Keating
On 26 May 1817, Mary Ashford, a 20-year-old general servant and housekeeper, attended a dance at the Tyburn House in Warwickshire. Also in attendance was a 24-year-old labourer, Abraham Thornton. According to witnesses, Thornton was heard using ‘gross and obscene language’, boasting that he would become intimate with Mary. Later, they danced together, and at around 12 midnight were seen walking together towards Erdington. Around 4am, Mary visited her friend Mary Butler’s house to fetch some clothes; she ‘appeared in good health and…composure of mind’ at this time. Mary, at about 15 minutes later, was then seen ‘walking alone’ towards Sutton Coldfield where she lived.
At 7am she was ‘found dead in a pit of water’ in a field. Upon examination, it was found that she had drowned. However, prior to this the victim had sustained injuries; her arms bore bruises and there was blood present upon her ‘thighs and private parts’ and upon the grass near the pit. The examination showed that shortly before her death ‘some man had forcibly had carnal knowledge of the body’ and that Mary had been a virgin before the incident. Thornton was examined: his undergarments were ‘stained with blood’, and he admitted that he and Mary had sex the previous night ‘by her own consent’. There was a public outcry when Thornton was acquitted at his first trial. William Ashford, Mary’s younger brother, raised an appeal of murder, resulting in Thornton being brought to trial a second time. Here, the key incident of the case occurred: Thornton declared himself not guilty, casting his glove onto the floor and stating, ‘I am ready to defend the same with my body’. This was an exceptionally outdated legal custom; a wager of battle. Ashford argued that evidence of Thornton’s guilt was so strong as to negate his right to battle. However, the court held that Thornton would not be prevented from exercising this right. Ashford relented and therefore Thornton went free.
The Appeal of Murder originates from the Statute of Gloucester which, according to the Ashford judges, states that the next-of-kin of the deceased victim may trigger a retrial by private prosecution following a murder acquittal; this had to be brought within a year and a day of the victim’s death, but could be answered by battle. Trial by battle was a mode of trial imported to England by the Normans under William the Conqueror – it was non-existent in prior Saxon law. As Dyer notes, ‘no one had claimed this right since 1638’, signalling the case of Ashford v Thornton as a legal landmark. The court managed to outline exceptions where trial by battle cannot be invoked; these included situations where the appellant was an infant, 60+ years old, or female. Furthermore, if it could be shown that the accused was caught with the murder weapon, or escaped custody, or if there was such a ‘great… presumption of guilt’ of the accused that could not be denied, the right to battle could not stand.
Therefore, the key legal question was, in the judges’ view, whether Ashford’s counterplea was able to show ‘grounds for a violent presumption of guilt’ so as to effectively prevent Thornton from being allowed to wage battle. Lord Ellenborough stated that the evidence given, when accounting for the ‘the pursuit…the rape and lastly the murder’ which all ‘must have taken some time’ was not concurrent. Thornton ‘must…have left the pit [at] the very period of time when he is seen talking with…John Haydon…more than two miles and a half from the pit’. This, in his view, made it ‘not only improbable, but impossible that he could have committed the murder’. He concluded that ‘the general law of the land is in favour of the wager of battel, and it is our duty to pronounce the law as it is, not as we may wish it to be’. Therefore, it was ruled that Ashford take Thornton up on his battle wager lest Thornton be allowed to ‘go thereof without day’. The case had a significant impact on the state of the law; not only was the forgotten practice of trial by battle deemed still valid by the court, it led to an immediate legislative response. As Dyer notes, ‘Ashford v Thornton provoked Parliament to prohibit not only wager of battle but also the archaic form of appeal…no one can deny the renown of the case’.
Reaction and Context
In the national legal sphere, there was a general disbelief that such a primitive custom was upheld by the court. One commentator, Henry Crabb Robinson, noted that there was ‘astonishment…at beholding before our eyes a scene acted which we had read as one of the disgraceful institutions of our half-civilised ancestors’. It could be argued that the legal system which at the time had been thought of as refined and civilised, had, in allowing the wager of battle to stand, exposed its violent foundations. On a more personal level, the case seemed to encapsulate prevailing notions of chivalry and virtuousness among men and women of Regency era Britain. As Anna Clark notes, chivalry had become ‘an increasingly important component of manliness’ at that time. Thornton’s supposed actions no doubt presented a threat to this idealised concept among men, perhaps that Thornton had betrayed the ‘ideal’ male stereotype. Indeed, Dyer notes that ‘several gentlemen…immediately began to explore ways in which this injustice could be righted’. The similarly popular notion of woman’s’ ‘virtuousness’ was also surrounded the narrative of the case; Schoenfield describes how newspapers emphasised that ‘the human form was not capable of being moulded into finer symmetry’ than Mary Ashford; she was portrayed as an angelic figure, the embodiment of the ‘ideal’ woman of her time. These two popular ideals, chivalry and virtue, contextually framed the public’s reaction to the case leading to the case becoming a national sensation; Clark notes how ‘polemicists conducted a pamphlet war over Thornton’s guilt, local ballads celebrated Mary Ashford’s virtue, and playwrights established rural crime into a plot for Birmingham and London stages’.
The success of trial by battle in Ashford was an example of the law aiding the strong over the weak, particularly in regard to ‘strong’ men over ‘weaker’ men. The principle of a wager of battle reinforces this idea. Dyer notes how Ashford ‘was only a teenager…his lawyers pointed out to the court that he was ‘of weak body’’; contrasting Thornton who was described as well-built and powerful. There is force in the argument that the court’s decision to allow battle facilitated a culture where men of physical prowess could rest easy when committing violence, safe in the knowledge that they could rely on their physical gifts to escape punishment. Indeed, the court would have sent a worrying message to men like Ashford, who would incredulously have to worry about how well they could fight when deciding to seek justice.
The law undoubtedly abetted an imbalance here – Dyer notes how ‘in effect, Thornton was rescued by his own strength – which had apparently enabled him to rape and kill Mary Ashford in the first place’. However, this could be rebutted in that Thornton may not have resorted to battle if not for the fact that he had been stereotyped as a monster; William Reader, of Thornton’s Counsel, told the court that they had recommended battle only due to ‘the extraordinary…unprecedented prejudice disseminated against him throughout the country’. This indicates that Thornton, rather than using his strength as a ‘sword’ to protect against punishment, was instead using his strength as a ‘shield’ to ensure he had a chance of avoiding a biased ruling. To this effect perhaps, the court’s decision did not aid the ‘stronger’ man over the weak – we must remember that Thornton was acquitted at his original trial, yet Ashford was in a powerful position in being able to raise an appeal of murder, and have Thornton seized and subject to immediate re-trial; perhaps it was Thornton, not Ashford, who was the vulnerable party here. However, it remains that Thornton was able to rely on his physical strength at Ashford’s expense, and the fact that the law facilitated this suggests that there was a serious imbalance at the time regarding which ‘type’ of man the law actually protected.
Ashford v Thornton is also an example of women being forgotten or excluded from legal and public discourse. There is an extraordinary gap in the history of this case in that the perspectives during the time were entirely male dominated. The case itself reflected this; women were ‘excluded from the…trial’ due to the graphic nature of the evidence, implying that they were not or should not be able to bear the knowledge of the details of the crime. Not only this, but women were again excluded from active participation in the public discourse and debates that followed the trial; their participation was reduced to that of passive observers, mentioned only when subject to warnings from male commentators. Anna Clark notes how ‘even Mary Ashford’s chivalrous defenders turned her fate into a warning…attempting to restrict the labour and amusements of young working women to the patriarchal household’. This suggests that, rather than focusing on justice for Mary, many of the criticisms of the case came from those who wished to use Thornton’s crime as a method of scaring women of the time back into their ‘proper place’, in the home, or at work. This can be evidenced by the portrayals of Mary as a virtuous maiden against Thornton as a monstrous beast, who would only be met by women such as Mary who venture too far astray from their domestic lives; as Clark stated, ‘by elevating Mary Ashford’s murder into myth, these melodramatic depictions ultimately reinforced patriarchal assumptions and concealed the reality of male violence’.
Ultimately, the male dominated discourse surrounding the case served to protect male culture at the time from criticism, especially from female voices. For women similar to Mary, during this time, the case reinforced the idea that justice would not come through equal discourse on the causes of the crime; instead they would be elevated to saint-like figures, and used as symbols of virtue to serve as warnings to other women not to venture too far from domestication.
Clark A, Women’s Silence, Men’s Violence: Sexual Assault in England, 1770-1845 (Pandora 1987)
Dyer GR, ‘‘’Ivanhoe’’, Chivalry, and the Murder of Mary Ashford’ (1997) 39 Wayne State University Press Criticism
Sadler T and Crabb Robinson H, Diary, Reminiscences and Correspondence of Henry Crabb Robinson (Macmillan 1869)
Schoenfield M, ‘Waging Battle: ‘‘Ashford v. Thornton, Ivanhoe’’ and Legal Violence’ (2000) 23 Prose Studies 61