8:12 pm

trial by battel

I've picked up an app for my iPod that lists significant stuff that happened in ye olde times on whatever date, "On This Day" I think it's called, If I can avoid being distracted I'll gin up a link.

So anyway, on this very day in 1818 "The case of Ashford v Thorton was concluded, with Abraham Thornton allowed to go free rather than face a retrial for murder, after his demand for trial by battle was upheld."

Fat lot I knew about 1818, that this sort of thing was still going on, in 1689 James II, formerly of England, was besieging Derry, I suppose because he was out of things to do, not being king anymore and all, but back to the point, in 1818 some guy with a whizbang of a lawyer was insisting on his right to challenge his accuser on a field of combat.

I hied me over to the wikipedia link to see what was up with that.* Not terribly surprisingly, the judges in this case were all of a flutter about this move, but they kinda figured they had to go along with it. There were rules about it: the challenge could not be issued if the evidence was really solid, or the defendent had been caught in the act, or the plaintiff was either a woman or over sixty, and some other things, and it could only be done if the defendent had already been tried and acquitted and the plaintiff appealed.

So here's some interesting bits:

It is uncertain when the last actual trial by battle in Britain took place. While some references speak of such trials 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 record speaks of the trial by battle 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, and the master drank too much wine before the battle and was slain by the servant. The servant was later hanged in an unrelated matter.

It's obvious why the king or the judges would be antsy about this method of resolving disputes: it bypasses the king's law. Judgement is in God's hands.** You can't tell me it was due to the authorities being shy of killing people, because they weren't. They didn't like it because the outcome was no longer up to them.

It's worth noting such challenge wasn't available to a defendent upon initial trial, but only if the verdict had set for acquital and the plaintiff appealed. I'm actually not surprised by Thorton saying in essence, "Oh, fuck it all, I'll fight the bastard, maybe then he'll leave off."

Some fun facts about trial by combat:

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.

On the spot!

However, if he defeated his opponent, or if he were able to fend off his opponent from sunrise to sunset, he would go free.

So it's hard cheese for a defendent in summertime, sunrise in England coming then by five in the morning and sunset holding off till ten at night. What you want, if you're an indifferent pugilist, is a midwinter setting. Yes, it's colder than you'd ever think possible, but if you can stay warm and out of pike's reach you have a shot at sitting by your fire for years to come.

I can't begin to speak to Thornton's actual guilt or innocense in this instance, and I won't try. In 1819 Parliament worked fast to close that door, seemingly because a number of ears pricked up at hearing trial by battle might still be viable. They also at the same time put down private judicial appeals, which was what led to Thornton being in the dock a second time. And lastly, it doesn't look like Thornton was ever before or since attainted with rape or murder.

The things you can run across while fooling with your iPod.


*I'll get to Derry someday, I'm guessing they survived.

** Or, if you like, left up to the whimsical notions of an uncaring universe, might makes right, yadda yadda. Whichever, the authority of the king's government has been set aside. I'm telling you, Charles would have noticed this in a flash. James? Not so much.

tagged: , | 2 Comments


  1. posted April 22, 2010 at 11:45 am

    A probably apocryphal story I heard is that in the 1890’s, a defendant asked for trial by battle, and the prosecutor in turn asked for trial by ordeal.

  2. posted April 22, 2010 at 12:47 pm

    Probably is apocryphal. But very, very funny!