In article ,
Victoria Clare writes:
|
| Eh? No, I don't! I mean time immemorial - i.e. dating back to before
| the earliest records.
|
| I disagree. Early records aren't big on natural features at all, and
| there many years of British history for which we have no written records
| at all, let alone legal documentation and process. It is pure guesswork
| to say that during that time people 'probably' did the same as what they
| did later, or even earlier.

That is "from time immemorial" - nobody can remember a time when it
was not so.

| And 'enshrined in English law for nearly 2 millennia' - are you sure
| about this? The Roman empire is well-documented, but not *that*
| well-documented, so far as I am aware?
|
| Yes, I am sure. And it is that well documented. I can't tell you
| the exact details, but one relevant term is "res nullius".
|
| So far as I was aware, that originally related to deserted, unclaimed or
| abandoned property, or the spoils of war, and the idea was that things
| belonged to the first claimant, who, thereafter, owned them. It may
| relate to wildflowers too, but I haven't yet found any original sources
| for this. I have found mention of 18th and 19th century interpretation
| of Roman law, but that is unlikely to be accurate. Can you give me more
| detail?

Take a look at the references to game. That was res nullius, quite
explicitly. The new Act is comparable to the mediaeval English game
laws.

| My understanding was that woodland would have been 'in use' and would
| belong to a community or an individual (not 'the community' which is a
| modern idea.) You might have got away with removing unimportant plants
| like bluebells, but I suspect an attempt to walk off with something of
| value like pignut would be met with a stick with nails on. And we don't
| know enough about the early medieval period to say for sure that, say,
| bluebells were *not* used for something that would cause the owner of
| the woodland to assert their ownership.

NOT ownership! That is precisely the point. It is rights to gather,
and the relevant laws were those of trespass. Yes, you are correct
that such RIGHTS tended to be owned by a community, when they were
important enough to matter. But the ITEMS were not owned until
gathered.

| There really isn't that much pre-Conquest - not unless this is new stuff
| I am not aware of?

Actually, there is a hell of a lot. You aren't thinking laterally
enough. There may not be enough to tell any of the details, but
there is enough to do a broad categorisation.

| There are letters, edicts, the odd law, histories, charters - but really
| not enough to say exactly what sort of law was actually being used day
| to day in people's lives, particularly as the country was so fragmented
| for so long. Even if you assume that South Britain stuck exactly to
| Roman law as it was c 200 AD (and that Roman law said exactly what you
| say it does) things are pretty certainly going to be different up in the
| Danelaw, for example, or in early Irish-influenced Northumbria.

That's not the point - that is why I said that the DETAILS were
unclear. The records I am referring to are descriptions of what
people were prosecuted for, the behaviour of travellers and so on.

| Unless the thinking has changed radically recently, the Carolingian
| interpretation of 'Roman law' was pretty different to that of the Roman
| Empire, and we really have no idea about 'common law' at all at that
| date - and that goes doubles for isolated Britain.

We have a pretty good idea of what was regarded as important enough
to be regarded as central authority's job to prosecute (i.e. to make
into a crime), as distinct from being left to negotiation.

| (I like Rackham's work, but I think he does have a bit of a tendency to
| say 'we have no mentions of X' and conclude something from that, when
| really the only accurate thing we can conclude is that we have no
| evidence for or against X, and that this is annoying.)

I haven't seen him make a serious mistake there. You are wrong that
you cannot make any more deductions - what you can deduce is that
ONE OF (a) it was not a major presence, (b) it was so universal as
not to be thought about or (c) it was regarded as too unimportant
to be worth mentioning. If you can rule out two of those on other
grounds, you have good evidence for the third.

| Hey, I think we are off topic...

Somewhat ....


Regards,
Nick Maclaren.