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CUSTOM AS LAW IN ENGLISH LAW

Published online by Cambridge University Press:  12 July 2017

Neil Duxbury
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Abstract

This article considers prescription as a customary standard of legal validity which enables judges to identify certain customs as law even though the status of those customs as law cannot be ascribed to a law-making authority. Although claims as to customs having prescribed are often bound up with claims as to the quality (as opposed to the validity) of custom as law, prescribed custom is properly conceived to be a feature of the rule of recognition – a criterion by which a court can identify, and declare, a custom as already existing law as distinct from both custom without the force of law and custom turned into positive law.

Keywords

customary lawcommon lawprescriptionrule of recognition
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Articles
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The Cambridge Law Journal , Volume 76 , Issue 2 , July 2017 , pp. 337 - 359
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Copyright © Cambridge Law Journal and Contributors 2017 

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Footnotes

*

Professor of English Law, London School of Economics.

References

1 Reid, Lord, “The Judge as Law Maker” (1972) n.s. 12 J.S.P.T.L. 22Google Scholar.

2 Hayek, F.A., Law, Legislation and Liberty, integrated 3 vol. ed. (London 1982), I, 73Google Scholar (vol. I, Rules and Order, was first published in 1973).

3 Ibid., vol. I, at p. 78.

4 Ibid., vol. I, at p. 73.

5 Austin, J., Lectures on Jurisprudence or the Philosophy of Positive Law, 2 vols, 5th ed. (London 1885), II, 531Google Scholar.

6 Ibid., vol. I, at p. 36.

7 Hobbes, T., The Elements of Law, ed. Tönnies, F. (Cambridge 1928 [1650]), 151Google Scholar.

8 Austin, Lectures on Jurisprudence, vol. I, pp. 36, 102.

9 See Postema, G.J., Bentham and the Common Law Tradition (Oxford 1986), 223–30Google Scholar.

10 See Hayek, Law, Legislation and Liberty, vol. II, p. 56.

11 Hart, H.L.A., The Concept of Law, 2nd ed. (Oxford 1994), 46Google Scholar.

12 Ibid., at p. 47.

13 Ibid., at pp. 47–48.

14 Ibid., at p. 95.

15 Austin, Lectures on Jurisprudence, vol. II, p. 539.

16 “Austin … held that … customary practices were not law until the courts … recognized them … . Hart reversed Austin on this point. The master rule [sc., the ultimate rule of recognition], he says, might stipulate that some custom counts as law even before the courts recognize it. But he does not face the difficulty this raises for his general theory because he does not attempt to set out the criteria a master rule might use for this purpose”. Dworkin, R., Taking Rights Seriously (London 1977), 42Google ScholarPubMed.

17 Hart, The Concept of Law, p. 45.

18 See Bentham, J., A Comment on the Commentaries and A Fragment on Government, ed. Burns, J.H. and Hart, H.L.A. (London 1977 [1774 × 1776]), 182–84Google Scholar. I use “community custom” to refer to national and local customs as distinct from customs of the legal profession. Local (particular) and national (general) custom, we will see in the next section, are distinct concepts in English law.

19 See Raz, J., “Legal Principles and the Limits of Law” (1972) 81 Yale L.J. 823CrossRefGoogle Scholar, at 852–53; also Lamond, G., “Legal Sources, the Rule of Recognition, and Customary Law” (2014) 59 Am. J. Juris. 25CrossRefGoogle Scholar. Lamond's account is particularly interesting because he sees the difficulties in squaring this line of argument with what is meant to be a positivist legal theory: if customs in foro are accommodated by the rule of recognition, he observes, we have a legal system in which the rule of recognition extends to standards which courts customarily treat as binding but which are not validated by statute, precedent, a constitutional provision or any other posited source of law (ibid., at pp. 34–35). Nevertheless, he appreciates that some squaring has to be done, because judges within municipal legal systems do enforce community customs which conform to “non-source-based” standards of legal validity (p. 35). Rather than invoking the rule of recognition to explain how they do so, he argues that judges understand the non-source-based standard as “authoritatively binding” – to be followed not because of “the merits of the standard itself” but because “it is part of the law” and so is something which they “are duty-bound to apply” (p. 45). To say that judges identify community customs as having legal validity by virtue of their conformity to a standard which is “part of the law” seems to entail acceptance of the rule of recognition (modified to allow custom in foro to feature in its content). The point for emphasis is that Lamond, like Raz, accepts that judges try to identify community custom as law (rather than turn community custom into law) when they declare its conformity to a standard of legal validity which is accepted as customary law of the courts.

20 Under the Prescription Act 1832, s. 2, evidence of 20 years’ continuous and uninterrupted enjoyment of an easement establishes a strong presumption that, at some time earlier, there was a (now lost) grant of the easement to the dominant neighbouring estate and that the holder of that estate enjoys the easement as a prescriptively acquired right. The presumption is practically unassailable because it can only be rebutted by proof that the grant could not have been made in the time before the prescription period but after the year 1189 (about which more later). In any event, once user has run for 40 years, the prescriptively acquired right becomes absolute.

21 Prescription stands as a vivid illustration of how lawyers can accept a standard of legal validity as part of the rule of recognition while disagreeing – not empirically but theoretically – over what is required for that standard to be satisfied. On empirical disagreement (over whether a rule satisfies a criterion of legal validity) as distinct from theoretical disagreement (over what the criterion of legal validity actually is), see Dworkin, R., Law's Empire (London 1986), 4–6 Google Scholar. Hart never denied the possibility of theoretical disagreement over criteria embodied in the rule of recognition: see Hart, The Concept of Law, pp. 245–47.

22 See Duxbury, N., The Nature and Authority of Precedent (Cambridge 2008), 53–57 CrossRefGoogle Scholar.

23 See e.g. Coke, 1 Institutes (Co. Litt.) 254a (“our book cases are the best proofs what the law is”); M. Hale (d. 1676), The History of the Common Law of England, ed. Gray, C.M. (Chicago 1971), 45Google Scholar (“Judicial decisions … are less than a law, yet they are a greater evidence thereof than the opinion of any private persons”); also Jones v Randall (1774) Lofft. 383, 385, per Lord Mansfield (“precedent, though it be evidence of law, is not law in itself”).

24 [Ranulf de Glanvill?], Tractatus de legibus et consuetudinibus regni Angliæ (London 1604 [c. 1187–89]), prologue, 3 (unnumbered). See also H. de Bracton, De legibus et consuetudinibus Angliae (London 1569 [c. 1230–35?]), 1 (“[I]t will not be absurd to refer to English laws (though unwritten) as laws …”).

25 Hale, The History, p. 3.

26 See Blackstone, 1 Commentaries 63–64; also Wood, A., “Custom and the Social Organisation of Writing in Early Modern England” (1999) 9 Transactions of the Royal Historical Society 257CrossRefGoogle Scholar.

27 See Blackstone, 1 Commentaries 79–84.

28 Ibid., at p. 74.

29 Ibid., at p. 68.

30 See Fitzherbert, A., La Graunde Abridgement, 2nd ed. (London 1516), 277Google Scholar. Fitzherbert's primary legal source was the year books, wherein “custom”, absent an indication to the contrary, refers to local rather than general custom.

31 Case of Tanistry (1608) Dav. 28, 31–32 (“custome, in l'entendment del ley, est tiel usage que ad obtaine vim legis, & est revera un binding ley al tiel particular lieu, persons & choses que ceo concern”).

32 T. Hedley, speech to the commons (28 June 1610) in Reed Foster, E. (ed.), Proceedings of Parliament 1610. Vol. 2: House of Commons (New Haven 1966), 170–97Google Scholar, at 175–76 (“Customs are confined to certain and particular places, triable by the country, … whereas the common law is extended by equity, that whatsoever falleth under the same reason will be found the same law”).

33 See Ibbetson, D., “Custom in Medieval Law” in Perreau-Saussine, A. and Murphy, J.B. (eds.), The Nature of Customary Law (Cambridge 2007)Google Scholar, at 173–74 and also 158–61 (where it is shown that the perceived need for tests to ascertain the validity of special customs in derogation from general law is not unique to the history of English law).

34 Coke, 1 Institutes 110b.

35 Finch, H., Law or a Discourse Thereof (New York 1969 [1627]), 77Google ScholarPubMed.

36 Mercantile custom, for example, was more often local custom rather than, as Finch insisted, common law: see J. Baker, “The Law Merchant and the Common Law Before 1700” (1979) in his Collected Essays on English Legal History: Volume III (Cambridge 2013), 1238–44Google Scholar.

37 The common law did not have to be proved but the presumption that a custom was common law could be rebutted. In Section III, this point is raised in relation to customs presumed immemorial. Here, it is worth noting that a custom considered common law could lose this status if it became evident that the custom did not prevail in every locality, even though it prevailed in nearly every locality, throughout the realm. For one such custom (concerning recovery of a decedent's personal property), see Palmer, R.C., English Law in the Age of the Black Death, 1348–1381 (Chapel Hill, NC 1993), 92–93 Google Scholar. On the counter-possibility – of a purportedly local custom turning out to be common law – see Pollock, F. and Maitland, F.W., The History of English Law before the Time of Edward I, 2 vols, 2nd ed. (Cambridge 1968 [1898]), I, 185–86Google Scholar. (There was also the difficulty of establishing whether local customary privileges extended to people from neighbouring boroughs as well as to the borough's inhabitants: see Salt, H.E., “The Local Ambit of a Custom” in Cambridge Legal Essays (Cambridge 1926), 279–94.)Google Scholar

38 See e.g. Reniger v Fogossa (1550) 1 Plowd. 1, 9, per Atkins, apprentice counsel. Coke regularly made the distinction, claiming to find it in Fortescue and Littleton: see e.g. Coke, 1 Institutes 115b; Rowles v Mason (1612) 2 Brownl. 192, 198. For examples in Bracton, see Ibbetson, “Custom in Medieval Law”, pp. 163–64. The author of Britton (c. 1290) alludes to the distinction when remarking on “customs used in the county other than the common law”. Britton, 2 vols, ed. and trans Nichols, F.M. (Oxford 1865), I, 84–85 Google Scholar. This example, along with examples from the year books, can be found in J. Baker, “Prescriptive Customs in English Law, 1300–1800” in J.H. Dondorp, D.J. Ibbetson and E.J.H. Schrage (eds.), Prescription and Limitation (Berlin, forthcoming). I am grateful to Professor Baker for providing me with this paper ahead of its publication.

39 An obvious difficulty with depicting the common law as immemorial general custom is that the customary features of later common-law systems cannot be fitted into the account: for an elaboration of the point with regard to the reception of English common law in America, see Bridwell, R. and Whitten, R.U., The Constitution and the Common Law (Lexington, MA 1977), 15–18 Google Scholar; also Bederman, D.J., Custom as a Source of Law (Cambridge 2010), 105CrossRefGoogle Scholar.

40 See e.g. Gilissen, J., La coutume (Turnhout 1982), 20Google Scholar (“We can define custom as a group of usages of the legal order, which have acquired obligatory force within a given socio-political group, through repetition of peaceable and public acts over a relatively long lapse of time”).

41 As regards legal anthropology, see e.g. Maine, H., Lectures on the Early History of Institutions, 7th ed. (London 1914), 381Google Scholar; Malinowski, B., Crime and Custom in Savage Society (London 1926), 106Google Scholar; Gluckman, M., The Judicial Process among the Barotse of Northern Rhodesia (Manchester 1955), 241–42Google Scholar and also 244. Instances from Roman law and international law are briefly considered below.

42 Usually, but not always: for exceptions in Bracton and in the manorial court records, see Ibbetson, “Custom in Medieval Law”, pp. 164, 167–68.

43 J. Fortescue, “In Praise of the Laws of England” (1468–1471) in his On the Laws and Governance of England, trans. Chrimes, S.B., ed. Lockwood, S. (Cambridge 1997), 26Google Scholar.

44 E. Coke, “To the Reader” (1611) in Eighth Part of the Reports of Sir Edward Coke, Kt (London 1727), 2Google Scholar (unnumbered pages).

45 Wallyng v Meger (1470) 47 Seld. Soc. 38, 38 (Catesby sjt).

46 There is no reason to think that Coke was not being deadly serious when he claimed that the common law dated from 2860 BC, when Brutus came from Troy (E. Coke, “To the Reader” (1602) in Third Part of the Reports of Sir Edward Coke, Kt (London 1738), viii)Google Scholar.

47 P. de Fontaine (d. circa 1289), Le conseil, ou Traité de l'ancienne jurisprudence française, ed. Marnier, M.A.J. (Paris 1846), 492Google Scholar. Something, but not just anything: de Fontaine had in mind judicial opinions. Although Justinian's Code eschewed precedent following (C 7. 45. 13), it was accepted that “customs and usage” should guide judicial rulings “where we have no applicable written law” (D 1. 3. 32 (Julian)). If an opinion had been repeated it was custom, and so, in the absence of written law, it could be cited as legal authority.

48 The number of decades depending on the type of custom; the period appears never to have been less than 10 years, and never more than 40. See Tubbs, J.W., The Common Law Mind: Medieval and Early Modern Conceptions (Baltimore 2000), 26–27 Google Scholar; Plucknett, T.F.T., A Concise History of the Common Law, 5th ed. (Boston 1956), 307–08Google Scholar; Gilissen, La coutume, pp. 29–30.

49 See e.g. Summa Iurisprudentiae Sacrae Universae, seu Ius Canonicum Secundum Quinque Decretalium Gregorii IX, ed. Pichler, R.P. Vitus (Augsburg 1741), 62Google Scholar; Corpus Iuris Canonici, 3 vols, ed. Gibert, J.P. (Lyon 1737), I, 481Google Scholar.

50 See von Savigny, F.C., System des heutigen Römischen Rechts, 8 vols (Berlin 1840–49), IV (1841), 481CrossRefGoogle Scholar.

51 Statute of Westminster I 1275 (3 Edw. 1), c. 39: “en conte de decente en le bref de dreit qe nul ne seit oy por demaunder la seisine son auncestre de plus lointein seisine qe del tens le rey Richard, oncle le piere le Roy qe ore est” (“in making the count of the descent [from the last ancestor in seisin] in a writ of right, no one shall presume to trace the seisin of his ancestor beyond seisin at the time of King Richard, uncle to [Henry III,] the father of [Edward I,] the king that now is”). The idea that Richard I's coronation marked the beginning of legal memory was reinforced by Edward I's investigations into the exercise of jurisdictional franchises, which settled that peaceful enjoyment of such a franchise since 1189 would be an answer in a writ of quo warranto: Statute of Quo Warranto 1290 (18 Edw. 1).

52 The association of a statutory limitation date with the limit of legal memory starts to become particularly evident from around 1300 – see De La More v Thwing (1308–09) Y.B. 176, 178; The King v Wickham Breaux (1313) Y.B. 179, 180 – though there are earlier instances: see Brand, P., “Lawyers’ Time in England in the later Middle Ages” in Humphrey, C. and Ormrod, W.M. (eds), Time in the Medieval World (York 2001), 103Google Scholar, where a case from 1247 is cited in which, during pleading, the accession of Henry I appears to be asserted as fixing the outer limit of the prescription period for the acquisition of an easement; and also Brand, “Limitation and Prescription in the Early English Common Law (to c. 1307)” in Dondorp et al., Prescription and Limitation, forthcoming, where there is cited a case from 1241 (de Columbers v de la Ryvere), in which 1135 was used as the date marking the limitation period for a (pre-Provisions of Merton) claim made by writ of right. (I am grateful to Professor Brand for providing me with the second of these papers ahead of its publication.)

53 From the reigns of Edwards I and II see e.g. (1305) Y.B. 45, per Bereford J.; (1305) Y.B. 431; (1306) Y.B. 206–07; (1308) Y.B. 29 (“du temps dount etc”); (1308–09) Y.B. 129.

54 See e.g. (1294) Y.B. 502, per Metingham C.J. (“… from the time of King Richard, whereof memory runs not higher”); Coventry v Grauntpie (1308–09) Y.B. 71, 73; Noyers v Colwick (1312) Y.B. 141, 142–43.

55 Littleton, T., Tenures, ed. Wambaugh, E. (Washington, DC 1903), 81–82 Google Scholar. (Tenures was first published in 1481, though it was written in the 1450s.)

56 See Littleton, Tenures, p. 82; Carter, S., Lex Custumaria (London 1696), 30–31 Google Scholar; also Wharam, A., “The 1189 Rule: Fact, Fiction or Fraud?” (1972) 1 Anglo-American L.Rev. 262, at 269Google Scholar.

57 The question of whether it had been established was for a jury, and jurors were not instructed that a standard fixed amount of time must pass before they could conclude that a custom had been proved beyond living memory. Sixty years was usually (though not always) considered a sufficient amount of time. Sometimes the period would be shorter. A range of instances is set out in Baker, “Prescriptive Customs”.

58 See Coke, 1 Institutes 113b.

59 See Blackstone, 1 Commentaries 77–8. Although it was accepted that local customs had to be reasonable if they were to bind as law – see e.g. Littleton, Tenures, p. 37; also the Case of Tanistry, p. 32 – a binding local custom was enforced as customary law at variance with the common law (see Littleton, Tenures, p. 81). Since the common law itself was understood to be inherently reasonable (a point considered below), a court which enforced a local custom was in effect allowing a practice deemed reasonable in a locality (typically, a manor) to take priority over a custom considered reasonable throughout the realm.

60 See e.g. J. Davies, “A Discourse of Law and Lawyers” (1615) in Grosart, A.B. (ed.), The Works in Verse and Prose, Including Hitherto Unpublished Manuscripts, of Sir John Davies, 3 vols (Blackburn 1869–76), II, 252Google Scholar.

61 Blackstone, 1 Commentaries 68.

62 See Beaulieu v Finglam (1401) B. & M. 557, 558; also Greer, F.A., “Custom in the Common Law” (1893) 34 L.Q.R. 153, at 157Google Scholar; Tubbs, The Common Law Mind, p. 191.

63 Hayek, Law, Legislation and Liberty, vol. I, pp. 96–97.

64 Ibid., vol. I, at p. 87.

65 See Greer, “Custom in the Common Law”, pp. 159–62.

66 Fortescue, “In Praise”, p. 26.

67 Hale, The History, p. 4; and see also the more nuanced analysis (emphasising that common law “on this side the Norman's entrance” was more likely to be new law as opposed to law “kept up from the time of the Saxons”) in Selden, J., Jani Anglorum facies altera (London 1610), 7–8 Google Scholar (unnumbered pages).

68 Davies, “A Discourse”, vol. II, p. 252; also ibid., at pp. 254–55 (“the common law of the land … is … framed and fitted to the nature and disposition of this people …”); and Hale, The History, p. 30 (“the common municipal law of this kingdom … is singularly accommodated … to the disposition of the English nation, and such as by a long experience and use is as it were incorporated into their very temperament”).

69 See Plucknett, T.F.T. and Barton, J.L. (eds.), St. German's Doctor and Student (London 1974 [1531]), 13–15 Google Scholar.

70 See ibid., at pp. 45–49.

71 See e.g. Colthirst v Bejushin (1550) 1 Plowd. 21, 24, per Morgan sjt; Sharington v Strotton (1566) 1 Plowd. 298, 306, per Thomas Bromley; Finch, Law or a Discourse Thereof, p. 76 (“the common laws of England … may be altered … so long as no alteration is permitted against the … laws of nature and reason”).

72 See e.g. Coke, 1 Institutes 97b; also J. Dodderidge (d. 1628), The Lawyer's Light (London 1629), 91Google Scholar.

73 See The Case of Mines (1568) 1 Plowd. 310, 316 (“the common law, which is no other than pure and tried reason …”).

74 Hedley, speech to the commons (28 June 1610), p. 175.

75 E. Coke, “To the Reader” (1604) in Fourth Part of the Reports of Sir Edward Coke, Kt (London 1826)Google Scholar, v. Cf. Burke, E., Reflections on the Revolution in France, and on the Proceedings in Certain Societies in London Relative to that Event, ed. O'Brien, C.C. (Harmondsworth 1968 [1790]), 193Google Scholar (“the science of jurisprudence … is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns”). Burke lauded Coke as “that great oracle of our law” (ibid., at p. 117).

76 Davies, “A Discourse”, vol. II, p. 252.

77 Bacon, for example, observed that custom-following could be irrational: see F. Bacon, “Of Custom and Education” (1625) in Vickers, B. (ed.), Francis Bacon: The Major Works (Oxford 1996), 419Google Scholar (“We see … the … tyranny of custom … . I remember, in the beginning of Queen Elizabeth's time of England, an Irish rebel condemned, put up a petition to the Deputy that he might be hanged in a with [sc., withe], and not in a halter; because it had been so used with former rebels”).

78 Austin, Lectures on Jurisprudence, vol. II, p. 539.

79 Bentham, A Comment on the Commentaries, p. 218.

80 Austin, Lectures on Jurisprudence, vol. II, p. 539.

81 See Reid, “The Judge as Law Maker”, p. 22.

82 See e.g. Bingham, T., The Business of Judging: Selected Essays and Speeches (Oxford 2000), 27CrossRefGoogle Scholar (“So general is the acceptance of this [sc., Lord Reid's] approach [to the judicial function] today that citation is scarcely necessary”); Lord Neuberger, “Twenty Years a Judge: Reflections and Refractions”, Neill Lecture, Oxford Law Faculty, 10 February 2017, www.supremecourt.uk/docs/speech-170210.pdf, at para. 51.

83 See J. Finnis, “Adjudication and Legal Change” (1999) in his Collected Essays. Volume IV: Philosophy of Law (Oxford 2011), 400Google Scholar; also Simmonds, N.E., Law as a Moral Idea (Oxford 2007), 164–68Google Scholar.

84 See Coke, 1 Institutes 113a–113b; Harrison v Rooke (1625) Palm. 420, 420 (“there is a difference between prescription which goes to the person [va al person], & custom, which is local”). On rights prescribing to corporate entities, see Brand, P., The Making of the Common Law (London 1992), 403–04, 427–34Google Scholar.

85 Rowles v Mason (1612) 2 Brownl. 192, 198. See also Gateward's Case (1607) 6 Co. Rep. 59, 60 (“[E]very prescription ought to have by common intendment a lawful beginning, but otherwise it is of a custom …. [C]ustoms … by common intendment … cannot have a lawful beginning, by no grant, or act, or agreement, but only by Parliament”); Case of Tanistry, pp. 31–32 (“[C]ustom … as … binding law to such particular place … cannot be established by the king's grant”).

86 See e.g. (1306) Y.B. 205; (1305) Y.B. 370.

87 See e.g. (1291) Y.B. 420; (1304) Y.B. 264, per Bereford J. (“they have laid an interruption to your continuance [of the practice which you allege to be local custom], to which … you must answer”); Mabile v Bishop of Lincoln (1311) Y.B. 117.

88 See The Case of the King's Prerogative in Saltpetre (1606) 12 Co. Rep. 12. Local customs, though they had to be proved, could occasion proclamations in the same vein: see e.g. Chichester v Lethbridge (1738) Willes 71, 72–73, per Willes C.J. (“[As to the objection that] there cannot be a prescriptive right for coaches and chariots time out of mind, because coaches and chariots are of modern invention, … the jury [has] … found that there has been a way for coaches and chariots time out of mind …; we cannot take notice judicially whether there have been coaches and chariots time out of mind or not, but must take it to be as the jury have found it”).

89 “The [customary] norm is indeterminate in its application until actually applied… . [I]t is easy to jump to the conclusion that the norm already regulates the present situation when in reality it is still indeterminate in respect to its regulation or nonregulation of the present situation”. Gardner, J., “Some Types of Law” in Edlin, D.E. (ed.), Common Law Theory (Cambridge 2007), 64Google Scholar.

90 Blackstone, 1 Commentaries 69–70, emphasis in original.

91 See e.g. Petyt, W., The Antient Right of the Commons of England Asserted (London 1680)Google Scholar; also Atkyns, R., The Power, Jurisdiction and Priviledge of Parliament; and the Antiquity of the House of Commons Asserted (London 1689)Google Scholar.

92 See G. Garnett, “‘The Ould Fields’: Law and History in the Prefaces to Sir Edward Coke's Reports” (2013) 34 J.L.H. 245, at 258–59, 264 (“[By ‘time out of mind’] Coke … did not mean what by his day was the limit of legal memory – 3 September 1189 – but something less precise, and which potentially reached back before 1189 … . Much of [the historical evidence he chose to use] appears to be adduced tongue in cheek, especially when it came to immemoriality”). On why Coke should have read his historical sources as he did, see I. Williams, “The Tudor Genesis of Edward Coke's Immemorial Common Law” (2012) 43 Sixteenth Century Journal 103, at 115–18.

93 See Bedle v Beard (1606) 12 Co. Rep. 4, where Ellesmere was ruling on a local custom which could be proved to have existed for over three hundred years but which was known not to exist in 1189. Surely “all shall be presumed to be done,” he remarked, “which might make the ancient appropriation good … . God forbid that ancient grants and acts should be drawn in question” because continuous enjoyment over three centuries (“after the death of all the parties, and after so many successions of ages”) fell short of what was “necessary to the perfection of the thing” (ibid., at p. 5).

94 Lord Ellesmere, “The Speech of the Lord Chancellor … Touching the Post-Nati” (1608) in Knafla, L.A. (ed.), Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge 1977), 223CrossRefGoogle Scholar.

95 Ibid., at p. 249.

96 Lord Ellesmere, “A Breviate or Direccion for the Kinges Learned Councell” (1615) in Knafla, Law and Politics in Jacobean England, p. 326.

97 F. Bacon, “Aphorisms on the Greater Law of Nations or the Fountains of Justice and Law” (1614 × 1622), trans. M.S. Neustadt in his “The Making of Instauration: Science, Politics, and Law in the Career of Francis Bacon” (Ph.D. dissertation, Johns Hopkins University, 1987), 281. (“He who holds fast” surely being Bacon's great nemesis, Coke.)

98 Ibid., at p. 286.

99 Verykios, P.A., La prescription en droit international public (Paris 1934), 40Google Scholar.

100 Ibid., at pp. 44–45.

101 Ibid., at p. 50.

102 See ibid., at p. 2.

103 The Paquete Habana, 175 U.S. 677, 686 (1900).

104 Mendelson, M.H., “The Formation of Customary International Law” (1998) 272 Recueil des cours 155Google Scholar, at 176.

105 Ibid., emphasis in original.

106 See Goldsmith, J.L. and Posner, E.A., “Understanding the Resemblance between Modern and Traditional Customary International Law” (2000) 40 Va.J.Int'l L. 639Google Scholar, at 641–54 (where the point is elaborated with regard to Justice Gray's appreciation, in The Paquete Habana, that the fishing vessel exemption had ripened from custom into law).

107 See Finnis, J., Natural Law and Natural Rights, 2nd ed. (Oxford 2011), 244–45Google Scholar.