THE LEGAL LOOPHOLE may not be one of humanity’s greatest inventions, but it’s one of the most satisfying, which is why it features in so many fictional stories. You can see people clinging to a belief that loopholes will save them anywhere you look for it: in sovereign citizens who believe they have discovered a secret legal system that will allow them to escape criminal penalties; in law professors who believe conservative Supreme Court justices will consider themselves bound by precedent; in conservatives who believed Mike Pence could overturn the 2020 election, and in liberals who believed the electoral college could overturn the 2016 election. It never works, but isn’t it pretty to think it could?
Or rather, it almost never works; every now and then, someone hits the jackpot. A spectacular example of finding and exploiting a forgotten loophole was the case of West Midlands bricklayer Abraham Thornton, who was plausibly accused of rape and murder, but had charges against him dropped after he successfully lodged the demand that the Court of King’s Bench (at the time, the highest court in the English legal system) grant him trial by combat. In the popular imagination, trial by combat is a medieval thing—The Last Duel is set in 14th century France—but Thornton managed this in 1818, after the invention of the steam locomotive.
Thornton’s legal saga began on the night of May 27, 1817, when he attended a dance at a pub in the West Midlands officially named The Three Tuns, but known locally (and ominously) as the Tyburn House. (The original building was torn down and replaced in 1930 but the Tyburn House is still there; they now serve chicken sizzling fajitas.) The evening’s events were told and retold in minute detail the months that followed: at an inquest, a trial, and an appeal, which were not only covered in the Birmingham and London newspapers, but also in pamphlets and books about the case.
At the dance, Mary Ashford, a young woman of about 20 who lived nearby in Langley–the first newspaper reports of her death specified that she was “respectable”—caught Thornton’s eye. According to later testimony, after asking who she was, he was heard to brag something to the effect that he had “been intimate with her sister three times and will with her or I’ll die for it.”
Ashford, who had arrived at the pub with her friend Hannah Cox, danced with Thornton during the party, and if she was troubled by his attentions, she didn’t express it to anyone there. Cox and Ashford had previously agreed to leave the dance early, but when the appointed time arrived, Cox had to send another friend to fetch Mary from the dance floor. Cox and Ashford left the pub together, in the company of Thornton and Cox’s friend (and future husband) Benjamin Carter, and the group began walking toward Erdington, where Cox lived.
After accompanying the other three a short distance, Carter returned to the pub. Hannah Cox peeled off at the road to Erdington, inviting Mary to spend the night at her house. Mary declined, and then she and Thornton were alone.
Some hours later, Mary came to Hannah’s house, saying she had spent the night at her grandfather’s. She changed out of her dress and headed out on foot toward her uncle’s house, where she worked as a housekeeper. According to Cox, she was not behaving as if anything was wrong, and she laughed about the disheveled state of her hair.
A few hours after that, a local worker found a set of women’s clothes neatly folded at the edge of a deep pit full of water. Finding bloodstains on the clothes and what he described as “a lake of blood” on the grass nearby, he raised the alarm, and after searchers improvised a drag, they brought Mary Ashford’s body to the surface.
Thornton was the prime and only suspect. The first people on the scene discovered footprints in a nearby field that showed a man chasing after a woman, ending at the bloodstains, which were accompanied by the impressions made by someone’s body. The doctor who examined Ashford’s corpse found no signs of fatal injury except for water in her lungs, and concluded she’d been alive when she went into the pit. He also determined she had recently had sex, that she’d gotten her period, and that she’d been a virgin before that night.
Thornton was the prime and only suspect.
The prosecution’s theory depended on circumstantial evidence, but its thrust was simple: Thornton was unable to seduce Ashford after the dance, and so lay in wait for her on her way to work, chased her across a field, raped her, then threw her into the pit to drown. The footprints, and the fact that some of them matched Thornton’s shoes, pointed towards this theory, but the crime scene was not secured from onlookers leaving footprints of their own, and it rained that morning, making the identification dubious at best.
In Thornton’s version of the story, he and Ashford had consensual sex in the area where the blood had been found, after which she left him to go to Hannah Cox’s house to get her clothes and head to work. He claimed to have no idea what happened to her after that. (The most common counter-theories were that she had either committed suicide after being seduced and abandoned, or had simply fallen into the water, possibly while attempting to wash up, and been unable to get out.)
Thornton’s story was not very convincing on its face, and after the inquest, he was charged with willful murder. By the time of his trial on August 8, however, he was able to mount a defense, presenting witnesses who had seen him some distance away near the time of Ashford’s death. This alibi was complicated by the fact that no one’s clocks were synchronized—witnesses gave precise times that were later adjusted by as much as 45 minutes based on how fast or slow each one’s clock was when compared to Birmingham time.
Despite the unsynchronized clocks, the defense was able to convincingly argue that Thornton would have had only about 15 minutes time in which to rape and murder Ashford, dump her body, and cover a distance of three and a half miles. Another point in Thornton’s favor was that, according to one of the witnesses, he volunteered that Ashford had willingly slept with him before anyone had seen the blood on his shirttails and underclothes that made this undeniable. However helpful this may have been for Thornton’s criminal defense, suggesting Ashford had consented to sex was a terrible PR strategy. One of Ashford’s posthumous defenders was particularly incensed: the Rev. Luke Booker, author of A Moral Review of the Conduct and Case of Mary Ashford, who used the murder as a cautionary tale about young women’s behavior. After interviewing locals about Ashford’s reputation (chaste), he concluded that her “acquiescence with Infamy” was an impossibility. As for Thornton, he wrote that Ashford’s “Ruin, independently of her murder, is chargeable on his soul.”
The judge seemed to have been persuaded by Thornton’s defense, however, and his charge to the jury emphasized that Thornton had established an alibi and that it was better a guilty man go free than an innocent man be hanged. Thornton was quickly acquitted of both the rape and the murder—the trial took only one day—and was released from custody.
The public registered this outcome as an outrage. A transcript of his trial was published under the title Horrible Rape and Murder!! The Affecting Case of Mary Ashford, A Beautiful Young Virgin, Who Was Diabolically Raped and Murdered—and that was ostensibly a neutral account of the proceedings; pamphleteers, songwriters, and newspaper editors went further. A Birmingham theater produced a ripped-from-the-headlines play entitled The Mysterious Murder, or, What’s the Clock? A Melo Drama in Three Acts, Founded on a Tale Too True, in which “Abram Thorntree” murders “Maria Ashfield,” one of at least three plays based on the murder.
Rather than being over, Thornton’s legal troubles were about to become even more complicated. In 1817, Great Britain still had laws on the books allowing for what was called an “appeal of murder.” Originally established to discourage the families of slain people from taking revenge on the accused killer, the appeal of murder allowed a victim’s spouse or heir to bring a charge of murder in a proceeding that was entirely independent of prosecution by the Crown. These private appeals could still lead to the death penalty, and they could be brought even against those who had already been found innocent in a criminal trial.
Before Thornton’s case, the most recent private appeal had been nearly 50 years earlier. Nevertheless, William Bedford, a Birmingham solicitor who was the leader of a group of locals seeking justice for Ashford, came up with the idea of filing a private appeal, as a loophole around Thornton’s acquittal. Bedford lacked the family standing to bring the charges himself, however, so his group raised the money for legal fees and drafted Mary’s brother, William Ashford, to be the party responsible for filing the appeal.
William Ashford did not cut much of a figure: He was an illiterate farm laborer who was described by contemporaneous observers as “a slender lad,” and of “short stature.” Although he was about 23, newspapers consistently estimated his age as 17. With the help of Bedford and other locals, he was able to file his appeal, and on Oct. 8, Thornton was arrested once again. His new trial was to be held in London at the Court of the King’s Bench, so on Nov. 6, he was taken there to answer Ashford’s suit.
Given how rare private appeals were, Thornton’s barrister asked for and was granted a short delay to prepare for the case. Thornton, meanwhile, was transferred from Warwick Gaol to Marshalsea, the notorious debtor’s prison Charles Dickens wrote about in Little Dorrit, although he was kept with the political prisoners and not the debtors. In the intervening time, Bedford and his team had uncovered new evidence: a jailhouse snitch who claimed Thornton had confessed to him, witnesses who contradicted the defense’s timeline, and rumors that the original witnesses had been paid off.
On Monday, Nov. 17, Thornton reappeared in court before a crowd of onlookers, ready to answer the charges. Asked once again if he was guilty or not guilty of the murder of Mary Ashford, he took a piece of paper from his barrister and carefully (and nearly inaudibly) read aloud: “Not guilty, and I am ready to defend the same with my body.”
The defendant had met the archaic loophole with an even more archaic loophole of his own. By offering to defend his plea with his body, he was invoking his right to the “wager of battle,” a method of settling legal disputes through mortal combat. Parties to a dispute (or, in some cases, their champions) would battle to the death in a duel fought with the expectation, as William Blackstone, the canonical expert on English law, put it, that “heaven would unquestionably give the victory to the innocent or injured party.”
Imported from the French legal system at the time of the Norman Conquest, trial by combat in England had long since fallen into disuse. Crucially, however, it had never been outlawed, and private appeals were one of the few legal proceedings in which it had historically been available.
Imported from the French legal system at the time of the Norman Conquest, trial by combat in England had long since fallen into disuse. Crucially, however, it had never been outlawed, and private appeals were one of the few legal proceedings in which it had historically been available. At the time of Thornton’s trial, it had been more than 200 years since the last indisputably documented trial by combat had taken place in Great Britain.
In obedience to the procedure, Thornton took a pair of gauntlets—in this case, thumbless, fingerless bags made out of kidskin for the occasion but of questionable usefulness in combat—put one on and threw the other to the floor. (Thornton’s solicitor kept one of the gauntlets, which was auctioned at Christie’s in 2019.) The drama of the ceremonial gesture was somewhat spoiled by the fact that he hit William Ashford in the head with the gauntlet, but Thornton had correctly observed the ancient forms, and no one in the courtroom was sure how to proceed.
Everyone was sure of one thing, however: If Abraham Thornton and William Ashford were allowed to fight, Thornton would kill Ashford. It was simply a matter of size, as the Times’ description of Thornton made clear:
…his natural thickness is greater than common, but his excessive corpulency has swollen his whole figure into a size that rather approaches to deformity. His face is swoln and shining, his neck very short and very thick, but his limbs are well proportioned.
Even Ashford’s supporters had little faith in his ability to defend himself. William Bedford, in a letter about the case, wrote that he was “very apprehensive our poor little Knight will never be able to contend the Battle with his brutish opponent.” Ashford’s barrister, Nathaniel Clarke, put it to the court: “It would appear to me a very extraordinary and astonishing circumstance that a person, in these enlightened times, charged with the crime of murder, should be permitted to repel that charge by committing another murder.”
At this, the judge chastised him for using the word “murder,” remarking, “It is the law of England, Mr. Clarke, we must not call it murder,” a succinct expression of the appeal of loopholes. If you are technically following the rules, nothing you do can be wrong, even if other people die.
As for the rules in question, the “wager of battel” was so archaic and out-of-use that the combatants were required to swear they had not made use of “enchantment, sorcery, or witchcraft” before fighting. According to Blackstone, the fight was to be conducted in a sixty foot square arena, with both combatants armed with wooden batons and leather shields. Combat began at sunrise and lasted all day. If Thornton died or surrendered, he would be judged guilty of murder and immediately hanged. If he killed Ashford or managed to stay alive until the first stars came out, he would be judged innocent and set free. If Ashford surrendered, by calling out “craven,” Thornton would again be found innocent, and Ashford would lose his rights as a citizen for bringing false charges of murder.
To accept Thornton’s challenge, Ashford would have picked up the gauntlet Thornton had thrown, but his lawyers advised him not to do so, and eventually it was left in the custody of the court. Clarke continued to argue against trial of combat, until Thornton’s barrister reminded the court that the only allowable response was a counter-plea, not an oral address.
The court granted another delay, and Ashford filed his counter-plea, repeating most of the evidence presented at the original trial. But the case had run out of loopholes. The right to a trial by combat could only be denied in cases where guilt was absolutely certain—i.e., the defendant had been caught in the act—or if the plaintiff was one of the people explicitly exempted from combat: women, clergy, peers of the realm, the infirm, the blind, the very old and very young, or, oddly enough, citizens of London, who were not expected to have been trained in combat. Ashford met none of these criteria, and so despite the fact that no one wanted to watch Thornton beat Ashford to death, the justices could not find a way to deny Thornton’s plea.
In the end, the only way Ashford could escape with his life was to drop the suit entirely. After months of legal wrangling, Ashford’s lawyers told the court on April 20, 1819 that, given that the court had granted Thornton trial by combat, they had nothing else to argue. Thornton pleaded not guilty one final time, and was released.
Now one of the most hated men in England, he had to leave the court by a private door to avoid crowds. After spending the summer at home in Castle Bromwich, where his father was dying of tuberculosis, he took a ship out of Liverpool in September. (He had to book passage twice, because on his first attempt to leave, the other passengers refused to share a ship with him.) In America, he disappears from the historical record, although he is said to have died in Baltimore in 1860. There’s no consensus as to whether or not he was guilty: Sir John Richard Hall, in a book about the trial from 1926, believed he was innocent. More recently, Naomi Clifford, whose 2018 book about the trial dives deeper into primary sources, concludes he was guilty. Anyone who knows for sure has been dead for more than a century.
The most telling thing about Thornton’s case, however, is what happened afterward. The very same day Thornton was set free, the Attorney-General said he would introduce legislation to end trial by combat and private appeals. Mary Ashford, meanwhile, had been transformed into a cautionary tale for young women before the legal proceedings were even finished. The Reverend Luke Booker, author of A Moral Review of the Conduct and Case of Mary Ashford, raised money for a tombstone, which, according to its inscription, was erected “As a Warning to Female Virtue and a humble monument to Female Chastity,” and went on to note the deceased had “incautiously repaired to a Scene of Amusement without proper protection.” There was also a poem.
On July 19, 1819 before Thornton had even left England, private appeals and trial by combat were abolished; the loophole was permanently closed. As for the pit where Ashford drowned, there was no great hurry to do anything about it: it was still there in 1901, and Hall noted in 1926 that it had only recently been filled in. Abraham Thornton might have found a way to get away with murder, but they don’t let you do that particular trick anymore. On the bright side, anyone who wants to is still free to drown in a ditch.
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