What is meant by the “date of legal memory”?
This year marks the 800th anniversary of the Common Law of England.
The Common Law of England is not a codified system. It is, nevertheless, a system which gives high priority to certainty in the law and which therefore venerates precedent. It is a system originating from custom and developed by precedent. These two characteristics give some indication of the historical importance of the “date of legal memory”.
It is a matter of first principle in codified systems of law that it is unnecessary (and, indeed, improper) to look further back than the date of the code for the purpose of discovering legal rules. Conversely, if a legal system takes a relaxed approach to the question of precedent it is, in a sense, “writing on water” and only the litigation of the present is important, not the litigation of the past. (Students may have noticed how an element of this uncertainty has entered English law since the House of Lords decided, in 1966, not to consider itself legally bound by its own previous decisions.) A codified system of law would necessarily accept the date of the code as the “date of legal memory”. In fact, such systems are rare, because those who support the idea of a code tend to resent the creation of any competing body of judge-made law (which, of course, the doctrine of binding precedent would inevitably bring about).
On the other hand, an uncodified system with little or no respect for precedent would, in practice, be a system without any memory at all. It is, therefore, only an uncodified system with a high regard for precedent which needs to light upon some artificial date in its history beyond which it is fruitless to search for customary rules. Once that date has been fixed it remains set as a bench-mark, notwithstanding the passage of centuries. In England (and the Common Law countries of the world) that date is the coronation date of Richard I, September 3 1189.
Why Richard I?
The choice of King Richard’s coronation was arbitrary but not without a logical justification. Richard himself contributed nothing to the growth of English law. The date was fixed in the region of Edward I (1272-1307). Pollock and Maitland state in their History of English Law before the time of Edward I (2nd ed 1898) that this date was probably chosen “because it was just possible that a living man should have been told by his father of what his father had been in the year 1189, and in a proprietary action for land the defendant’s champion was allowed to speak of what his father had seen”. The source of the rule was Edward’s Statute of Westminster I (1275).
It was subsequently repeated in later statutes of Edward’s reign. It is interesting, therefore, to note the influence of disputes about title to land in the development of the date of “legal memory”, even though the limitation period for these disputes cannot remain a fixed historical date. (One man’s title against another man’s title is always a relative idea.) However, it is almost only in the field of land law that reference to 1189 is made nowadays (namely, in disputes about local customary rights).
Why not 1066?
Although the origins of English land law clearly lie in the changes brought about by the Norman conquest in 1066 (prior to which the Kings were “Kings of the English”, and after which they were “Kings of England”), the date of legal memory cannot conveniently be located at so early a date. This is because William I did not attempt to interfere with the administration of local customary justice. The significance of Richard I lies not in what he did but in the fact that he was Henry II’s son and successor. And if anyone can claim the title “father of English law”, that person is Henry II. (Edward I subsequently became known as the “English Justinian” because of the statutory law reforms which he introduced, but unlike the Roman Emperor Justinian, he was a maker of law, not a codifier of it.)
Henry II (1154-1189) was, by any test, a remarkable man. The Oxford History of England refers to him as “essentially a man of action, he was never idle … He never sat down, except when he was riding or eating … His natural abilities, his immense capacity for work, his sound business instinct, his accessibility combined with an easy faculty for remembering facts and faces, all contributed to make him a statesman and diplomat of the first rank” (A L Poole, Domesday Book to Magna Carta).
It was Henry who, inheriting the throne after a period of anarchy, determined to imprint his royal justice upon a fragmented state. The assize system which he introduced involved the King’s Justices travelling the country in circuits, hearing and determining cases, and giving respect to local or general customs only in so far as they were reasonable and consistent with the development of “common law” for the king’s realm. Clearly some limitation to the period of retrospection became necessary as this system of “common law” established itself as a readily available alternative to the rules enforced in the local customary and feudal courts. Magna Carta (1215) testifies to the popularity of justice administered in the king’s courts by requiring a court to be held in one set place, rather than to be available principally in whichever town the king’s court happened to be.
By the reign of Edward I the development of the “common law” was sufficiently well under way to make it possible for the Statute of Westminster I (one of Edward’s measures of law reform) to fix the “date of legal memory” at the coronation date of his grandfather’s brother, Richard I. If a custom could be shown to have existed at this date, at the latest, it was then said to date from “time immemorial” and to be possessed of a sufficient antiquity to be subsumed into the common law, or (in the case of local customs) to have a claim to equal validity with the common law.
800 years on
With the passage of the centuries — even, in fact, of much shorter periods of time — it became rarer and rarer to find evidence of any custom which could show sufficient antiquity to compete with the common law. In the case of local customs, however, the judges were willing to presume that a custom had this antiquity if there was evidence of long usage. This was a rebuttable presumption, and so it was always possible for the party who was opposed to the existence of the alleged custom to prove that, however long the historical usage might be, it could not, in reality, date from 1189. For example, in Simpson v Wells (1872) LR7 QB214, an alleged customary right to hold a market or fair on certain land was defeated by evidence that markets or fairs of the type in question had been authorised by the Statute of Labourers in the 14th century and could not have been held before the passing of that statute. Thus the idea of “time immemorial” was defined by Blackstone (in the 18th century) as “time whereof the memory of man runneth not to the contrary”.
To assist in the proof of ancient local customs (and, indeed, also in their disproof) the common law developed an exception to the rule against hearsay evidence in the case of “declarations as to public and general rights”. It thus became permissible for a witness to relate what a deceased person had told him about the extent of alleged customary rights or to produce documents written by deceased persons about such rights. But it was permissible to do this only if the statement were spoken or written at a time before the litigation in question had commenced. This made it possible for one party or the other to produce ancient records or to call as a witness the oldest living inhabitant of the district, who would then be able to repeat what his grandfather, or some other long-deceased person, had told him about the custom in question.
Even if a presumption of immemorial usage was not justified on the facts of a particular case, it was sometimes possible for the courts to presume that the use was sufficiently long established as not to have been started unlawfully. In such cases, the courts would presume that the right in question had been granted by a Royal Charter or a deed of grant at some date after 1189, but that the charter or deed itself had been lost. This presumption (in fact, it was a legal fiction in many cases) was known as the “presumption of the lost modern grant”. The word “modern” in this context means “after 1189”.
An example of this presumption could be the exclusive rights of a landowner over the fish, shell-fish, etc in tidal waters. If such a right had existed, in fact, over many decades, without anyone challenging it, this might be taken as sufficient ground for presuming that the right had been granted, by royal prerogative, to some predecessor-in-title of the landowner at some uncertain date since 1189.
The presumption of the “lost modern grant”, however, is a method of evading the strictures of the “date of legal memory” — it is not an example of the date being used to decide the issue one way or the other. The fiction of the lost modern grant is based upon the “presumption of regularity”, ie the willingness of the courts to prefer an innocent and regular explanation for disputed facts if there is no evidence one way or the other.
Trade customs
Because of the fast-moving nature of trade and business, the courts have never insisted on any proof of ancient usage before recognising the validity of a trade custom or business practice. Rather it is a question of deciding whether or not the custom is universally recognised in the trade or business in question. Such customs tend to rest for their validity nowadays on the willingness of the courts to enforce them as implied terms in relevant contracts.
