Resources of hope: working-class memory in rural England
Published online by Cambridge University Press: 05 June 2014
History is neither the whole nor even all that remains of the past. In addition to written history, there is a living history that perpetuates and renews itself through time and permits the recovery of many old currents that have seemingly disappeared.
Maurice Halbwachs, The Collective Memory (New York, 1980), p. 66.In the latter third of the eighteenth century, attacks on custom and common right quickened in tempo and increased in force. Basing their decisions on ‘notions of absolute property ownership’, central courts allowed full rein to a long incipient hostility to custom. The reasons for this shift were as much political as they were juridical. Enlightenment thinkers expressed a fundamental hostility to the idea that past practice ought to be a guide to future conduct. Eighteenth-century jurists deplored ‘The greater part of customs’ which they saw as ‘transmitted … by a tradition that carries no authority with it … expressed in old obsolete language that is dark and ambiguous, and … sometimes directly contrary to the written laws’. This hostility to the fundamental logic of customary law worked itself out in practical terms, powerfully affecting how central courts dealt with individual cases. Thus, for instance, claims to wide common rights were dismissed as having ‘no rational meaning’. Likewise, jurors felt that the authorities’ unbroken assertion conferred legitimacy upon a customary right ‘however long and without interruption, will confer no legal title to such a right’. A judgment of 1767 stated baldly that ‘no degree of antiquity can give sanction to a usage bad in itself’. Nineteenth-century utilitarianism was, if anything, still more hostile to custom. John Stuart Mill felt that ‘The despotism of custom is everywhere the standing hindrance to human advancement.’
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