chapter 39) persons maliciously accused of treasonable words were

tried before the constable and marshal, and although they might be “old and weak, maimed or infirm,” yet compelled to fight against appellants “young, strong, and hearty.” See _Rot. Parl._, III. 420, cited Neilson, _Trial by Combat_, 193. On the other hand, the Statute 1 Henry IV. c. 14 provided that no appeals should in future be held before Parliament, but only before the Court of the Constable and Marshal.

Footnote 773:

See 3 Henry VII. c. 1, s. 11. This statute emphasized how the injured party, with the right of appeal, was “oftentimes slow and also agreed with, and by the end of the year all is forgotten, which is another occasion of murder.”

This remedied the more recent evil, but revived the old injustice; the same statute enacted that acquittal should not bar the right of appeal of the wife or nearest heir of a murdered man. Thus, once again, a man declared innocent by a jury might find himself still exposed to a second prosecution. This unjust anomaly remained without formal redress until the nineteenth century; and in 1817 the British public was startled to find that a long-forgotten legal procedure of the dark ages still formed part of the law of England. The body of a Warwickshire girl, Mary Ashford, was discovered in a pit of water under circumstances which suggested foul play. Suspicion fell on Abraham Thornton, who had been in her company on the night when she disappeared. After indictment and trial at Warwick Assizes on a charge of rape and murder, he was acquitted. The girl’s eldest brother, William Ashford, was not satisfied by what was apparently a perfectly honest verdict. He tried to secure a second trial, and with this object claimed the ancient right of appeal of felony, which the judges did not see their way to refuse. Ashford’s attempt to revive this obsolete procedure was met by Thornton’s revival of its equally obsolete counterpart. Summoned before the judges of King’s Bench, he offered to defend himself by combat, throwing down as “wager of battle” a glove of approved antique pattern. The judges had to admit his legal right to defend himself against the appeal “by his body,” and Thornton thus successfully foiled the attempt to force him to a second trial, as the court never contemplated the possibility of a medieval judicial combat being actually fought in the nineteenth century. The appeal was withdrawn and the proceedings terminated.[774]

Footnote 774:

See _Ashford v. Thornton_, 1 B. and Ald. 405-461.

The unexpected revival of these legal curiosities of an earlier age led to their final suppression. In 1819 a Statute was passed abolishing proof by battle alike in criminal and in civil pleas; and the right of appeal fell with it.[775]

Footnote 775:

See 59 George III. c. 46.