I’ve been reading the work of Professor John Stinneford, concerning the role of custom and tradition in determining the meaning of “cruel and unusual punishments” under the Eighth Amendment. It is one of John’s important insights that the meaning is to be determined by practice or general usage. And one of the issues that crops up in determining usage is antiquity, not only in the sense of actual age but of something like untraceable age. In the common law, the phrase, “time immemorial” often is used by learned commentary to describe this second sense of age. The best sort of age, in the law, is not the kind that we, today, can map. It is the kind that transcends our capacity to pinpoint. Here is a bit from Professor Stinneford’s excellent article, Experimental Punishments (notes omitted):
The common-law notion of long usage contains a principle of legal development over time. If a once-traditional practice falls out of usage for multiple generations, it loses its status as presumptively reasonable. If revived, it is to be treated as a new practice and compared to the tradition that has developed up to that time. Similarly, before a new practice can be considered “usual,” it must gain universal reception within the relevant legal community, and it must sustain such universal reception over a period of multiple generations. Only at that point can the practice be considered firmly part of the tradition, for only then can it be said to enjoy the multigenerational consent of the whole people.
The precise amount of time a practice must enjoy universal reception before becoming part of the tradition is not clearly and consistently defined by common-law writers. For example, Blackstone wrote that a practice must have been used universally from time “immemorial” to be considered part of the common law. If anyone could determine a time when the practice was not used, it could not be part of the common law. At the same time, however, Blackstone acknowledged the fact that the English common law had developed over time and had changed as an “intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans … must have insensibly introduced and incorporated many of their own customs with those that were before established.” American common-law thinkers such as James Wilson rejected the idea that a practice had to enjoy “immemorial usage” before becoming part of the common law:
Some writers, when they describe that usage, which is the foundation of common law, characterize it by the epithet immemorial. The parliamentary description is not so strong. “Long use and custom” is assigned as the criterion of law, “taken by the people at their free liberty, and by their own consent.” And this criterion is surely sufficient to satisfy the principle: for consent is certainly proved by long, though it be not immemorial usage.
Despite this lack of precision, there are some things we can say with certainty about the scope and duration of usage a practice must enjoy before we can say that it is clearly part of the tradition. First, reception of the practice must be universal; that is, it must be employed throughout the relevant legal community. Second, the practice must be public. A secret or “underground” governmental practice cannot be said to enjoy the consent of the people “taken … at their free liberty.” Third, the practice must continue to be universally received over the course of multiple generations. The premise of the common law is that multigenerational consensus is more reliably just and reasonable than the consensus of a given moment. As noted above, the number of generations that must receive a given practice before it can be said to enjoy long usage is uncertain. Cases concerning the reverse question–how much time it takes a once-traditional practice to fall out of usage for constitutional purposes–have generally required a century or more of disuse. Similarly, it would seem that a century or more of universal reception would be required to show that a new practice enjoys a stable multigenerational consensus. But in any event, there is no reason to treat long usage as an “on-off” switch. However much time it may take definitively to establish “long usage,” we can at least say that the longer and more universally a public governmental practice is received, the more likely it is to comport with the tradition.
