[ANSTHRLD] baronial service awards

Diane Rudin serena1570 at yahoo.com
Wed May 9 16:31:01 PDT 2007

Francois wrote:

> If only a couple people still remember something how does it remain
> common law?  Especially since it does not seem to have been the
> practice for a while.  

Okay, you asked for it.  Herein follows a discussion of key concepts
of legal history.  Consider yourselves warned.

*Desuetude*  -- “Disuse; cessation or discontinuance of use,
especially in the phrase, ‘to fall into desuetude.’  Applied to
obsolete practices and statutes.”  [Black’s Law Dictionary, Sixth
Edition.  St. Paul, Minnesota:  West Publishing, 1990, p. 449. 
Hereinafer “BLD”.]

All of the leading authorities in legal history that I have consulted
to date agree that desuetude is a concept foreign to common law,
because the very nature of common law – law built upon precedent
– precludes desuetude.  (Complete bibliography available offline to
the curious, although it’ll take a couple of days for me to type
up.)  It is sufficiently foreign to common law that a quick check of
the indices of several leading authorities of English legal history
(of which the most prominent is Maitland) failed to produce a single
volume that included the word.

Desuetude is practiced in countries that follow civil law, which in
this context means “The system of jurisprudence held and
administered in the Roman empire, particularly as set forth in the
compilation of Justinian and his successors … as distinguished from
the common law of England and the canon law.” [BLD: 246]  This is
the legal tradition from which most Continental law is derived, and
is best known to Americans through the laws of Louisiana.  

By contrast, “as distinguished from statutory law created by the
enactment of legislatures, the common law comprises the body of those
principles and rules of action, relating to the government and
security of persons and property, which derive their authority solely
from usages and customs of immemorial antiquity, or from the
judgments and decrees of the courts recognizing, affirming, and
enforcing such usages and customs; and, in this sense, particularly
the ancient unwritten law of England.  …  In a broad sense,
‘common law’ may designate all that part of the positive law,
juristic theory, and ancient custom of any state or nation which is
of general and universal application, thus marking off special or
local rules or customs.” [BLD:276]

Throughout English legal history, it has taken an Act of Parliament
to overturn ancient common law practices.  The parliaments of the
early 19th century were particularly active on the subject of English
legal reform; reformist lawyers were always on the lookout for a good
case to bring to the courts that would focus on some ancient practice
that was still legal, although now repugnant.  Since the courts had
to rule in favor of the precedent, the public outrage would result in
an Act of Parliament to end by statute that which was previously
legal by common law.

As to the issue of spotty application, English legal history is also
replete with instances in which persons ignorant of the law, although
charged with upholding the law, failed to apply the proper precedents
to the cases before them.  This does not void the original law,
although it does complicate the issue of later rulings.  A
professional and thorough legal education is a relatively recent
phenomenon, being a product of the last 200 years or so.   That was
one of the main purposes William Blackstone had in mind when he
published his 4-volume *Commentaries on the Laws of England*, c.
1765: to make the laws of England comprehensible to the educated.  It
is worth pointing out that Abraham Lincoln taught himself law by
reading Blackstone.  Before that, a legal education was basically an
apprenticeship, in which one spent years reading lots and lots of
Latin treatises of up to several hundred years in age, and lots and
lots of books of precedents.  (Yeah, sounds like the SCA College of
Arms at a certain point, doesn’t it?)  However, a legal education
was not at all a prerequisite for being a judge in a local court,
although the English monarchs did tend to appoint learned lawyers as
judges at the great royal courts in London.

Civil law is *made*; common law *happens*.

So, in summation, and to apply all of this to this particular
situation, common law remains the law until overturned by
legislative, not judicial, action.  Spotty application of said laws
results from situations in which those without a thorough legal
education are entrusted with administering a legal system, facets of
which they may be ignorant.  This does not void the original law, but
does result in the sort of confusion with which we are currently
faced in regards to the baronial service order membership status of
B&B’s in fief who were not previously members of the relevant

Historically, in such situations, what is required is a positive
reinforcement of the original ancient law, or for the original
ancient law to be overturned by a specific negative statute.  Such
ruling would not and cannot be retroactive, because in Society law,
armigerous awards, once given, must be resigned by letter to the
Board, or by the Crown requesting Board action.  

As to the situations that have arisen of late (the last decade) in
which the common law was not applied or known, strictly speaking, if
the Crown didn’t know they were giving an award, and the B&B’s
didn’t know they were being given an award, and the populace
didn’t know that an award was being given, then in those few
particular cases, no award was given.


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