One of the last battles judicially fought upon English soil was that between Sir James Parker and Sir Hugh Vaughan, before Henry VII., in 1492. The battle was the result of a quarrel about certain arms given by the King to Vaughan. The fight occurred at Richmond and resulted in the victory of Vaughan over Parker. The former’s spear penetrated the helmet of Sir James and cleaved his tongue from his mouth and he died in a short time from the wound inflicted.[55] The last trial by battle that was waged in the court of common pleas at Westminster,[56] occurred in the thirteenth year of Queen Elizabeth, A. D. 1571. This was the celebrated case of Lowe vs. Paramour, reported by Sir James Dyer[57] and also by Sir Henry Spelman,[58] who was himself a witness of the trial. The battle occurred in Tothill-fields, Westminster, “_non sine magna juris consultorum perturbatione_,” reports Sir Henry Spelman.[59] In the last English case wherein the right of trial by battle was recognized, two citizens of the laboring class elected to decide their cause by the wager of battle, in 1818. The case was that of Ashford vs. Thornton.[60] The facts giving rise to the appeal by Abraham Thornton, in 1817, are briefly told. Mary Ashford, of Warwickshire, was drowned, under circumstances directing suspicion of foul play, against Thornton. He was arrested for her murder and tried and acquitted by a jury, but public sentiment was so aroused against him that the dead girl’s brother, instituted an appeal for murder against Thornton, and while this proceeding, after a jury trial, was quite unusual, the court held that the proceeding was proper. Thornton demanded the right of trial by battle, and the court held that he was entitled to such a trial, but before the trial, in April, 1818, the appeal was withdrawn and Thornton was discharged. Upon the legality of the proceeding of trial by battle, however, the case proceeded to judgment, before the Court of King’s Bench and Lord Ellenborough, for the court, decided that: “The general law of the land is in favor of the wager of battle and it is our duty to pronounce the law as it is and not as we may wish it to be; whatever prejudice, therefore, may justly exist against this mode of trial, still, as it is the law of the land, the court must pronounce judgment for it.” That this judgment was right, few, if any, lawyers would question, as the repeal of existing laws is a legislative, not a judicial function; it is the province of the courts to expound and apply, not to repeal laws regularly enacted and recognized by the legislative branch of government and although an absurd law may remain unenforced, because over-looked, it is none the less a law, although not enforced, until repealed by the proper department.