Time immemorial

Time immemorial (Ab immemorabili) is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record". The phrase is used in legally significant contexts as well as in common parlance. In law, time immemorial denotes "a period of time beyond which legal memory cannot go," and "time out of mind." Most frequently, the phrase "time immemorial" appears as a legal term of art in judicial discussion of common law development and, in the United States, the property rights of Native Americans. "Time immemorial" is frequently used to describe the time required for a custom to mature into common law. Medieval historian Richard Barber describes this as "the watershed between a primarily oral culture and a world where writing was paramount". Common law is a body of law identified by judges in judicial proceedings, rather than created by the legislature. Judges determine the common law by pinpointing the legal principles consistently reiterated in previous legal cases over a long period of time. In English law, time immemorial ends and legal memory begins at 1189, the end of the reign of King Henry II, who is associated with the invention of the English common law. Because 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. In English law, "time immemorial" has also been used to specify the time required to establish a prescriptive right. 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. American law inherited the English common law tradition. 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. In Knowles v.