Great Britain does not have a written constitution in the way it is referred to in other states – a single written document or series of documents. However, it does have a legal system based on certain written sources that are of great importance and are acknowledged as unwritten constitution or also uncodified one. Nowadays' most important ones are statute law, common law, European union laws, legal treaties and other conventions that are nevertheless bound to other sources of law that date long back in time.
This essay aims to explain the relationship between those sources and to underpin the importance of historical ones to the English legal system today. The set of rules that are now in the bottom of the governing system in England were created by King William I in 1066. At that time England had adopted from the Europe different customs that were practiced in regions. Shire Court, Hundred Court and Franchise Courts enforced those traditional practices in order a more common ruling system to be developed.
Thus, there were Dane law, Mercian law and Wessex law, governing the north and north-eastern England, central England and southern and western England. King William I had faced wide gaps in the legal structure of the state – no common laws throughout the country, no place where they could be made, and no system to govern them. He established a court called Curia Regis and a strong centralized government in Westminster that had no parallel in Europe until then. Members of the crown court, called itinerant judges, went throughout the whole state to gain information about the local governance and practiced customs.
Those that were common in all regions were adopted in the so called common law based on the common needs. The law is nonetheless influenced by the judges' estimation of what they assumed law should be. However, by 1250 there was a common legal system with 'some memorable declaratory and statutory milestones' of 'historic evolution, from Magna Carta to the statute of Westminster'1 . Nowadays custom is a minor source of law used for resolving basic cases of local authority that are taken to courts for their validity to be ensured and thus to be enforced.
There are certain requirements that those ancient practices have to meet. First, it must have existed since time immemorial. The Statute of Westminster 1275 imposed that the customs should have derived since 1189 AD during the reign of King Richard. The custom should have been valid at all times during the evolution of the legal system which means that it should not necessarily have operated, but was practical to have been used. In the case of Wyld V Silver2 evidence was provided that the custom had the force to be exercised which made the custom valid.
Usually, the courts call for the oldest inhabitant of the village to testify information. In Simpson V Wells3 legal documentary evidence was available of the existence of a rule in a statute of the fourteenth century that people were allowed to put a refreshment stand on a footpath. It was proved of this right to have existed during the centuries therefore people are still capable of doing it. Similarly, in the case of Mercer V Deane4 a defendant was seized of building houses on his own property – a beach – because a fisherman claimed that there was a custom rule that enforced him of using the land to dry his nets when fishing.
This was proved by witnesses that stated it existed and was in force for at least 70 years and presumingly earlier. Custom should also have been exercised peaceably, openly and as of right. This means that if the custom has been practiced through permission of certain authority, it is not valid because it is not of a legal right but of certain control. In the case of Mills V Colchester Corporation5 because of the latter circumstances, the court refused to enforce the custom. Moreover, the custom must be reasonable, meaning that there should be no contradiction with the fundamental principles of right and wrong.
In the case of Wolstanton Ltd & Duchy of Lancaster V Newcastle-under-Lyme Borough Council6 the Lord of manor stated that he had a customary right to work on a mine, which was not land of his own, without paying any compensation to the tenant. It was rejected by the House of Lords because of its unreasonable manner. A custom must also be certain, clear, capable of precise definition and relate to a specific locality. What is more, it must not conflict with statute law because of the supremacy of Parliament. Nowadays, it is indeed, quite rare for a custom to be recognized in courts.
Partially it is because it is very hard to trace back a custom and its practice over the centuries. However, there are cases of exception. In the Egerton V Harding7 case the common land was protected from being fenced for straying cattle. Also, in the case of New Windsor Corporation V Mellor8 common land was defended from being built on instead of being used by people for lawful sports. In other words, custom is used as a source of law even though with minor influence if it meets all of the requirements above.