- Paul Anthony Jones
(adj.) impossibly ancient, coming from the distant past
The other day, we tweeted this:
Frankly, it sounds made up:
But, in fact, this bizarre quirk of legal terminology is entirely true.
The word immemorial literally means “unrememberable”, or “beyond memory”. Although it’s occasionally found on its own (Alfred Lord Tennyson’s The Princess, for one), by and large it’s now considered an example of a “fossil” word—namely an archaism that only survives in the language in one fixed expression or cliché, like the beck of “beck and call”, the kith of “kith and kin”, or the riddance of “good riddance”. (Shameless plug: there’s more on that in the new HH book.)
The expression this particular fossil finds itself embedded in dates back a little over 400 years: the Oxford English Dictionary has unearthed the earliest record of time immemorial in a document drawn up by Richard Cosin, a sixteenth century ecclesiastical lawyer, in 1593. But the legal concept of time immemorial—referring to a time beyond legal memory, which can be used to establish long-term rights of ownership—dates back considerably further than that.
During his 35 year reign from 1272–1307, Edward I oversaw the institution of three so-called Statutes of Westminster, a set of formal legal documents that attempted to codify all the laws of England, and thereby establish a new and fully comprehensive English legal system. Ironically, the foundations of this fully comprehensive English legal system were written in French (or rather, Old French), which two centuries after the Norman Conquest was still the language of the law and government in England.
The First Statute was drawn up in 1275, and comprised a total of 51 clauses or “chapters”, each of which set out various rules, writs, laws, and legal definitions. Clause 4, for instance, outlined the legality surrounding shipwrecks:
On a wreck of the sea, it is agreed that when a man, a dog, or a cat escapes alive from a ship, neither the ship nor the boat nor anything that was in them shall be adjudged a wreck.
Clause 5, The Freedom of Election Act, is still in force in England and Wales seven centuries later:
Because elections ought to be free, the king forbids … any man, great or otherwise, to interfere by force of arms or by malicious conduct with the making of a free election.
Clause 34 outlawed slander:
Because many [people] have often invented and told lying tales … it is forbidden … for anyone henceforward to be so bold as to utter or repeat false news or fabrications whence any discord, or intention of discord or slander could arise between the king and his people.
And Clause 39, known as “The Limitation of Prescription Act”, set out to define a standardized cut-off point for legal ownership—a precise date against which all grievances over ownership of land or property could be measured and determined:
No one is to be given a hearing to claim seisin [feudal ownership of land] by an ancestor of his further back than the time of King Richard, uncle of King Henry, the father of the present king.
Effectively, this meant that if you had your ownership of a given property or plot of land challenged by writ of right, all you had to do to quash the challenge was prove that you and your ancestors had maintained ownership of said property since before Richard I became king. The First Statute of Westminster ultimately established the date of Richard’s ascendancy—6 July 1189—as the cut off point for living memory, or the time “whereof the memory of Man runneth not to the contrary”. Anything that occurred before that date was thereby deemed to be beyond living memory, or, in legal parlance at least, time immemorial.
This definition remained in force in England and Wales right through to 1832, when it was finally figured out that being compelled to demonstrate ancestral ownership of something for 643 years could prove somewhat tricky. As a result, shortly before his death William IV passed The Prescription Act, which shortened the legally required length of ownership or use of a contested property to anything between 20 and 60 years, depending on its use.
This remains the standard requirement for disputes of ownership in England and Wales, and consigned the legal definition of time immemorial to the history books. Although the phrase itself—albeit a fossilized one—still lives on.
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