When asked to name the oldest law still in force what would you say? Would you stand by that answer if you were given the above date?
In most cases the answer would be the Magna Carta and most people would. So what if I said that the Magna Carta in force today was enshrined into statute in 1297, some thirty years after the above date – any ideas now?
The answer is the Statute of Marlborough.
Of the original twenty-nine sections, four remain in force today and there is a proposal that two of those sections should be repealed as they no longer serve a useful function following the introduction of The Tribunals, Courts and Enforcement Act 2007. The provisions of the 2007 Act effectively abolished distress and replaced Chapters 4 and 15 of the Statute of Marlborough with a statutory procedure for debt recovery.
Despite the Act being passed, the transitional implementation meant that until 2014, Chapters 4 and 15 were, in part, still in force. Now that Part 3 of the 2007 Act has been fully implemented, the Chapters can be considered in the next Repeals Act.
It is therefore of interest that there are two sections of this historic statute that have not been modernised in subsequent legislation, or at least have not been updated to such an extent that the Law Commission feels satisfied that it can be repealed.
Chapter One forbids an individual to seek revenge for the non-payment of debt without the permission of the courts, i.e. you cannot take someone’s house without following the correct legal process. Whilst this is a well-established principle, it is hard to believe that subsequent legislation has not dealt with this in full and as a result, the Chapter remains in force.
Chapter Twenty-Three prevents tenants from making waste, alienating or selling their land without permission. There has been some debate over whether or not the principles of the Chapter have been fully implemented in subsequent legislation due to the substantial changes that have occurred in this area over the centuries. With no definitive answer, the Chapter will remain on our statute books.
Whilst the reality is that the Statute of Marlborough has little day to day impact on litigation or business, it is sometimes helpful to look back on the ‘antiquities’ of legislation in order to understand where the current statute or common law has been derived from and in some instances, how little has changed in the last 748 years.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.