A Brief History
On April 20, 1818, accused British murderer Abraham Thornton was set free after his accuser refused to fight him in a “trial by combat.”
Digging Deeper
Thornton had walked a girl home from a dance, and the next day the girl was found drowned in a pit. Thornton was charged with murder but was acquitted at trial. This is where things begin to get a bit different from the American idea of due process. As was his right based on an archaic English law, the brother of the dead girl, however, insisted that Thornton be retried. Thornton, however, invoked another medieval English law that allowed accused murderers, traitors and other felons the option of trial by combat in cases of retrial.
The accuser, a William Ashford, had demanded the retrial on the grounds of overwhelming evidence and thought therefore that trial by combat was unnecessary, but the judge ruled the evidence not so “overwhelming” and granted the trial by combat. Just four years previously, a judge in Ireland had refused to entertain the idea. For his part, Ashford declined the opportunity to engage his sister’s alleged murderer in combat, and Thornton was thus freed. Just one year later, in 1819, the British Parliament repealed the outdated law. Thornton would move to the United States and died in 1860.
It is unclear as to when the last fight in lieu of trial took place, with possible last cases in the 1630s. The last cases known to have taken place with certainty were in Scotland in 1597 where the accused murderer was killed in battle and in England in 1446 where a servant killed his master.
Trial by battle was not afforded everyone, as those caught in the act or with overwhelming evidence against them would have to stand conventional trial anyway. No option to battle it out was given to accused persons who had tried to escape or if the accuser was a woman over 60, a minor or a handicapped person. Interestingly, noblemen and citizens of London were exempt from having to do battle with the accused. Another rule was that if the defendant was beaten in battle but did not die, he was to be hanged immediately.
Not only could an accuser (plaintiff) also be killed in battle, but if both combatants were still alive after 24 hours of battle or if the accuser admitted defeat by uttering the word “craven,” the defendant would be declared innocent and the accuser would be declared “infamous” and lose his rights as a freeman and be stuck with a bill for damages. It seems this rule was instated to prevent accusers from making frivolous and unfounded accusations.
Attempts to repeal this medieval law before 1819 had been met with defeat, with proponents proclaiming the right to a judicial duel a “great pillar of the constitution.”
Question for students (and subscribers): What do you think of the concept of trial by combat? Remember, it was only offered as a second trial following an acquittal. It certainly does have an air of gallantry about it as depicted in movies and television productions such as HBO’s Game of Thrones. Do you wish this option were still legal? Please let us know your thoughts in the comments section below this article.
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Historical Evidence
For more information, please see…
Neilson, George. Trial by Combat. The Lawbook Exchange, Ltd., 2009.
The featured image in this article, a contemporary depiction of Abraham Thornton, was published before January 1, 1926 and it is anonymous or pseudonymous due to unknown authorship. It is in the public domain in the United States as well as countries and areas where the copyright terms of anonymous or pseudonymous works are 95 years or fewer since publication.
You can also watch a video version of this article on YouTube.
