Editing Time immemorial (section)

=== English and American common law ===
[[File:Richard Löwenhez, Salbung zum König.jpg|thumb|upright=1.2|[[Richard I the Lionheart]] being anointed during his [[Coronation of the British monarch|coronation]] in [[Westminster Abbey]] in 1189, from a 13th-century chronicle. Any time before the accession of Richard I is considered "time immemorial" in English law.]]

"Time immemorial" is frequently used to describe the time required for a custom to mature into [[common law]].<ref name=":0">Kunal M. Parker, "[https://scholarship.law.uci.edu/ucilr/vol1/iss3/6/ Law 'In' and 'As' History: The Common Law in the American Polity, 1790–1900]", 1 UC Irvine L. Rev. 587, 594–600 (2011).</ref> Medieval historian [[Richard Barber]] describes this as "the watershed between a primarily [[Oral tradition|oral culture]] and a world where writing was paramount".<ref>{{Citation |last=Barber |first=Richard |title=The Marlborough Mound |date=2022 |url=https://www.cambridge.org/core/product/identifier/9781787446748%23c3/type/book_part |page=62 |editor-last=Barber |editor-first=Richard |chapter=Marlborough Castle in the Middle Ages |edition=1 |publisher=Boydell and Brewer Limited |doi=10.1017/9781787446748.005 |isbn=978-1-78744-674-8}}</ref> Common law is a body of law identified by judges in judicial proceedings, rather than created by the legislature.<ref name=":7">James Apple, "[https://www.fjc.gov/sites/default/files/2012/CivilLaw.pdf A Primer on the Civil-Law System]" ''fjc.gov''. Retrieved 18 May 2022.</ref> Judges determine the common law by pinpointing the legal principles consistently reiterated in [[Precedent|previous legal cases]] over a long period of time.<ref name=":7" />

In English law, time immemorial ends and legal memory begins at 1189, the end of the reign of [[Henry II of England|King Henry II]], who is associated with the invention of English common law.<ref name=":0" /> As common law is found to have a non-historical, "immemorial" advent, it is distinct from laws created by monarchs or legislative bodies on a fixed date.<ref name=":0" /> In English law, "time immemorial" has also been used to specify the time required to establish a [[Easement by prescription|prescriptive right]].<ref name=":8">"[https://www.legislation.gov.uk/ukpga/Will4/2-3/71/contents Prescription Act 1832]", ''legislation.gov.uk.'' Retrieved 18 May 2022.</ref> The [[Prescription Act 1832]], which noted that the full expression was "time immemorial, or time whereof the memory of man runneth not to the contrary", replaced the burden of proving "time immemorial" for the enjoyment of particular land rights with statutory fixed time periods of up to 60 years.<ref name=":8" />

American law inherited the English common law tradition.<ref name=":0" /> Unlike English law, American law does not set "time immemorial", and American courts vary in their demands to establish "immemoriality" for the purposes of common law.<ref>Robert N. Wilentz, "[https://heinonline.org/HOL/LandingPage?handle=hein.journals/rutlr49&div=48&id=&page= Judicial Legitimacy – Judith and Marc Joseph Lecture]", 49 Rutgers L. Rev. 859, 875 (1997).</ref> In ''Knowles v. Dow,'' a [[New Hampshire]] court found that a regular usage for twenty years, unexplained and uncontradicted, is sufficient to warrant a jury in finding the existence of an immemorial custom.<ref>''Knowles v. Dow,'' 22 N.H. [https://cite.case.law/nh/22/387/ 387, 409] (1851).</ref> More often than not, however, American courts identify common law without any reference to the phrase "time immemorial".<ref>''Kimple v. Schafer,'' 143 N.W. 505, 507 ([https://cite.case.law/iowa/161/659/ Iowa 161 659/]).</ref>