The phrase ‘since time immemorial’ is used to refer to a time in the distant past that was so long ago that people have no knowledge or memory of it – a time that extends beyond the reach of any ancient record. It is often used to emphasise the ancient or unchanging nature of a particular custom, tradition, or phenomenon, conveying the idea that something has been in existence for such a long time that it predates recorded history.
The phrase itself also has ancient origins, and has been used in various cultures and contexts. Along with its use in common parlance, the phrase is also used in legally significant contexts to convey a sense of timelessness, and describes the time required for a custom to mature into common law. Put simply, time immemorial is the time before legal memory.
But how did this phrase originate, and who decided when something could be officially qualified as such?
Law in early medieval England
Up until 1275, law in early medieval England was evolving, and relied heavily on the idea of long use, custom, and royal decrees.
The legal landscape was decentralised, with no unified or systematic legal code for the entire country. Instead, different regions and communities had their own local courts and followed customary laws that had developed over time. These customary laws were often unwritten and passed down through generations, with local courts playing a crucial role in administering justice based on these customs.
From the mid-1000s, the Normans established church courts to try clergy members and exercised control over forests via Forest Laws. At the time, the authority to determine guilt or innocence was considered to rest with God, prompting the Church to demand universal recognition of its authority.
The Church and the country’s nobility, possessing both power and wealth, were regarded as the entities capable of defining ‘punishable’ crimes. Ecclesiastical courts, handling canon law (a set of ordinances and regulations made by ecclesiastical authority) and spiritual offences, played a significant role in both civil and criminal matters.
In certain cases – usually serious crimes – justice was determined through Trial by Ordeal or Trial by Combat. (Trial by Ordeal involved subjecting the accused to a physically or mentally challenging test, with the belief that divine intervention would reveal the person’s guilt or innocence. After 1215, it was replaced by Trial by Jury after intervention from the Pope.)
The king’s authority was also a significant source of law. Royal decrees, charters, and proclamations issued by the monarch were important in shaping legal principles. However, these were often reactive and tended to address specific issues rather than establishing a comprehensive legal code.
Significantly, after a rebellion by his barons, King John was forced to sign the Magna Carta on 15 June 1215, which placed certain restrictions on his royal authority. He would later renege on the deal, which sparked fresh rebellion, but it was ratified by his successor, Henry III. The Magna Carta is seen as one of the founding documents of our democracy.
As England’s legal system became increasingly codified under Henry II, people of all social ranks became interested in the enforcement of their rights. Many cases relied on proving that they had been enjoyed since time immemorial, such as retaining grazing rights on a piece of land, or land ownership.
The problem was how to prove something had happened in a time out of all memory, and by the 13th century this was causing legal issues and irresolvable disputes.
The Statute of Westminster, 1275
The issue was eventually resolved by the Statute of Westminster in 1275 – a series of statutes that legally codified the existing law in England into 51 chapters, addressing various legal issues, including land law, criminal law, and trade regulations.
While the statute didn’t create a fully comprehensive legal code, it contributed to the development of a more unified legal system in medieval England, and over time, subsequent statutes and legal reforms continued to shape the English legal system into a more centralised, coherent, and standardised structure.
The Statute of Westminster replaced the communal regime for enforcing contracts with a framework founded on individual accountability, regional legal jurisdiction, a centralised administration of justice, and personal collateral.
It was originally intended to prevent magnates being deprived of their feudal rights and make succession law easier. Previously, a landowner would need to prove their title back to the Norman Conquest of 1066, when all land was taken into the hands of the Crown. By 1275 it had become too arduous to seek records going back 200 years, meaning there was a strong danger that the king might reclaim the property if the title could not be shown.
“Since time immemorial”
Significantly, Chapter 39 of the Statute of Westminster 1275 ordered that it would not be necessary to go back further than the reign of Edward’s ancestor Richard I, only 86 years – the limit of legal memory. Therefore, although it was not labelled as such at the time, the period in which ‘time immemorial’ continued up until was given a date: 6 July 1189 (the accession of Richard I). After this date, English legal memory – i.e. the period over which the law’s recollection extends – is said to have officially begun.
Edward I issued the Statute of Westminster, and the date he chose was the end of the reign of King Henry II (associated with the invention of the English common law) and the first day of the reign of his great-uncle, Richard I, the Lionheart. Edward had been a crusader (returning from the Ninth Crusade on 2 August 1274 and crowned King of England on 19 August), and it’s likely he chose that date to recall the last great crusading king.
From this point, courts stated that where a long-standing custom exists, it will be presumed to have existed since time immemorial unless it can be proven otherwise.
Whilst Richard I ascended the throne on 6 July 1189 upon the death of his father Henry II, Richard’s coronation took place on 3 September 1189. This led to some confusion as to the exact date set by the Statute of Westminster. Nevertheless, it is the year that is significant; in English law, “time immemorial” officially ends and legal memory begins at 1189 (a metaphorical dividing line between a predominantly oral society and one where the written word was key).
Legal context today
Today, only Chapter 5 (which mandates that ‘There shall be no disturbance of the free elections’) is still in force in the UK as it was originally stated. However, there remain many cases where the law has filled the gap in a case by presuming an action or document exists going back to the “limit of legal memory”.
In English law, “time immemorial” has also been used to specify the time required to establish a prescriptive right. The Prescription Act of 1832 later replaced the burden of proving ‘time immemorial’ for the enjoyment of particular land rights, with statutory fixed time periods of up to 60 years. The City of London has enjoyed such ancient rights and privileges, deriving its power from ‘Time Immemorial’ since at least the time of King Edward the Confessor in the 11th century.
This story is featured in History Hit’s Miscellany: Facts, Figures and Fascinating Finds, published by Hodder & Stoughton, on sale now.