Institutes: Commentary Upon Littleton "The Memory Of Man Runneth Not To The Contrary"

"The Memory Of Man Runneth Not To The Contrary"

Context: Edward Coke, Lord Chief Justice of England, got part of his legal training, as did most would-be lawyers of the day, by reading earlier court decisions and opinions. One of the standard volumes was Tenures, written in French by Sir Thomas Littleton (1422–1481), which when printed in 1481 represented the earliest published treatise on English law. Coke must have found it difficult to understand because after he was settled in his profession and had become an authority of English Common Law, he prepared a new edition with three columns on each page: Littleton's French version, its English translation, and Coke's annotations and commentary. He called it "Institutes" because, as he said, it was "intended to institute and instruct the student and guide him in a ready way to the knowledge of the National Laws of England." So well did Sir Edward do his task that his annotated edition remained a standard legal text from 1628 when the first edition was published up to the nineteenth century. Various times in his discussions, Coke stresses the reasons back of law; and in Section 170 he discusses how law maintains a situation that has always existed, or has existed as long as the memory of the oldest citizen. This section concerns burgage, a form of privileged tenure of real property in boroughs by which lands are held by kings or lords who receive a certain yearly rent in money or goods. If the system had been set up in the distant past, says Littleton as Coke explains him, as far back as man can remember, the arrangement is still legal. As he comments:

No custom is to be allowed, but such custom as hath been used by title of prescription, that is to say, from time out of mind . . . some have said that time out of mind should be said from time of limitation in a Writ of rights, that is to say from the time of King Richard the first after the Conquest, as is given by the Statute of Westminster . . . And by such a writ, a man may recover his right of the possession of his ancestors, of the most ancient time that any man may by any writ by the law, etc. . . . But they have said that there is also another title of prescription, that was at the Common Law, before any statute of limitation of Writs, etc. And that it was where a custom or usage or other thing hath been used for time whereof mind of man runneth not to the contrary. . . . Where a man will plead a title of prescription of custom. He shall say that such custom hath been used from time whereof the memory of man runneth not to the contrary, that is as much as to say, no man then alive hath heard any proof to the contrary.