How laws signed by King Henry III of England at Marlborough Castle will meet their end

Written by Tony Millett.

Effigy of King Henry IIIEffigy of King Henry IIIIf you are an avid and discerning collector of government policy consultations here's a very rare one indeed - it includes references to Henry III of England, Marlborough Castle and some very, very old laws.

The Law Commission is consulting on a new round of statute repeals - tidying up the heap of laws that build up over the centuries and have, for one reason or another, become redundant.  This Repeal Bill will include two of the four remaining parts of the United Kingdom's oldest piece of statute law - it's called the Statute of Marlborough.

The Statute of Marlborough was a set of laws signed by King Henry III of England in 1267 while Parliament was meeting at Marlborough Castle.  In general they were in support of order and of the established powers.  Four 'chapters' (as they were called) of the Statute are still legally valid.

The Law Commission's list of laws ripe for repeal includes a bunch of Finance Acts that are well past their sell by date and a 1964 Act to clear slums and promote house building.  A more recent victim for repeal is the 1997 Act authorising referendums for setting up the Scottish Parliament and Welsh Assembly - as the referendums are now history, the Act is redundant and will be consigned to the footnotes.

The list also includes several laws from the Second World War that aimed to maximise agricultural output and so defeat the U-boats.  The Agriculture (Miscellaneous Provisions) Act of 1943 "now contains no remaining substantive provisions.  Its repeal is proposed on the grounds that it is obsolete."  What a sad way to slide into history.

From the same period, the Treason Act of 1945 will go completely.  It was a 'purely procedural' Act.  But it certainly claims a footnote in history: had it not been passed the prosecution of William Joyce (aka Lord Haw Haw), who broadcast Nazi propaganda to Britain from Germany, might have failed.

One legal authority has said that if the statutory requirement for corroboration had not been repealed by the 1945 Act, William Joyce could not have been convicted on the basis of the evidence offered at his trial.

Marlborough Castle - how it could have lookedMarlborough Castle - how it could have lookedThe Statute of Marlborough has in one instance divided the Commission's legal experts.  

Three of its extant laws  (1,4 and 15) are often called the 'Distress Act'.  These govern the recovery of rent or other money owed (in Medieval and legal parlance 'distresses') making it illegal to do so except through the courts.

Chapter 15 lays down where 'distresses' are forbidden to be taken - including the 'King's Highway' and the 'Common Street'.  In plain language this chapter stops actions to remedy a breach of one person against another being taken in the street etc.   Maybe these chapters were the foundation stone of the solicitors' professional monopoly in dealing with such disputes.

Chapter 23 (sometimes called the 'Waste Act 1267') prohibited tenants 'making waste' (or perhaps as we would say today 'laying waste') to land they hold in tenancy - or 'alienating' or selling it.  

The Law Commission wants to repeal Chapters 4 and 15 as a law of 2007 abolished 'distress' replacing it with a statutory procedure for debt recovery.  So 4 and 15 "no longer serve any useful function."

But Chapter 1 will stay on the statute books as it goes further than the 2007 Act "by making it an offence to take revenge or distress without the authority of the courts, rather than simply acting as an enforcement agent without due authority."   The drafters of the 2007 Act did not get everything right.

Chapter 23 will remain on the statute books because "Opinions differ as to whether or not it serves any useful function today, and as a result it is not suitable for inclusion in a Statute Law (Repeals) Bill."

Those chapters of the Marlborough Statute which have already been repealed included legislation on subjects with Norman legal titles that would delight a crossword setter: including redisseisin, beaupleader, essoins, guardians in socage, replevin - and, in plainer English, resisting the King's officers.

And when someone tells the Law Commission's consultation that Magna Carta (signed in 1215) was an even older piece of Statute Law, they will quickly reply that Magna Carta was only copied into the statute rolls to become law in 1297.

The consultation runs until 27 February 2015.

For a history of Marlborough Castle written by David du Croz for Marlborough News Online - see the Visiting Marlborough section.