SOURCE:Francis Canavan, "Prescription and Government," in Edmund Burke: Prescription and Providence, Carolina Academic Press, 1987, pp. 113-35.

In relating the political order of civil society to the created order of the world, Burke's theory of prescription of government plays an important role. He says explicitly that "the doctrine of prescription … is a part of the law of nature."¹ But as the variety of scholarly interpretations of his doctrine of prescription testifies, what he meant by it and in what sense it is part of the law of nature, is by no means clear, certainly not to all who read Burke.

Paul Lucas has described Burke's theory of prescription as his "idea about the way in which an adverse possession of property and authority may be legitimated by virtue of use and enjoyment during a long passage of time."² The description is accurate so far as it goes. Burke certainly held that if one had held uncontested possession as the owner of a piece of property for a sufficiently long period of time, no earlier title to the property, however valid, could be revived and made to prevail against the occupant's title. Through the passage of time the occupant had acquired a title by prescription, and this in Burke's eyes was "the soundest, the most general, and the most recognized title … a title, which … is rooted in its principle, in the law of nature itself."³ He applied the same principle, by analogy, to the possession of political authority.

Lucas goes on to say that Burke "revolutionized the meaning of prescription"⁴ and that "it was through his conception of prescription that Burke attacked the natural and common laws."⁵ This writer disagrees with Lucas's propositions that Burke attacked the natural law, that he "believed that prescription possessed an immanent justification,"⁶ and that in his mind "time alone became the material and efficient cause of prescription."⁷ This chapter, however, is not a rebuttal of Lucas's contention that Burke's "key and characteristic doctrine of prescription is not to be found in the old writings on the natural law," or in the Roman civil law, the Roman Catholic canon law, the English common law, or the many expositions of the various French "civil" or feudal laws.⁸ All that is intended here is to set forth Burke's doctrine and his reasons for it, whether it is to be found in previous writings or not.

Burke's doctrine of prescription of government, as Fennessy remarks, "is by no means an anti-rational defence of existing institutions, based on feelings of reverence for antiquity. It is a theoretical answer to a problem of political theory."⁹ Burke was not speculating in a vacuum when he spoke of a prescription of government; he was arguing against what he regarded as a false and dangerous theory of the origin and nature of political authority. Burke's defense of authority as prescriptive, therefore, must be understood in the light of the theory to which it was a reply. To try to understand the Burkean doctrine of prescription in itself, without reference to the opposing doctrine, is to run the risk of missing its point.

For the present purpose, what is important is not so much what Burke's opponents really meant as what he thought they meant. There is, in fact, no reason to believe that he seriously misunderstood them, even though for polemic reasons he did reduce their arguments to their simplest and most radical form. It would be hard to oversimplify Thomas Paine's thesis in The Rights of Man, but it was doubtless unfair of Burke to take Paine as the exponent of the view of all the English sympathizers with the French Revolution. Nonetheless, to understand what Burke meant by prescription, we must first understand the position against which he directed the doctrine of prescription, and we must understand it as he did.

He had summarized that position several years before the French Revolution in his Speech on the Reform of the Representation of the Commons in Parliament. Since that speech will be the subject of the following chapter, we may leave full discussion of it until then, and not only that Burke said in it that most of those seeking reform claimed the right to vote for members of Parliament as one of "the supposed rights of man as man."¹⁰ Such an argument, as Burke pointed out, led logically not only to reform of the representation in one house of Parliament, but to popular sovereignty clear across the constitutional board. By the time Burke came to write his Reflections on the Revolution in France in 1790, the argument, as he understood it, had in fact taken that form. "They have 'the rights of men,'" he said, and continued:

Against these there can be no prescription; against these no argument is binding: these admit no temperament, and no compromise: any thing withheld from their full demand is so much of fraud and injustice. Against these their rights of men let no government look for security in the length of its continuance, or in the justice and lenity of its administration. The objections of these speculatists, if its forms do not quadrate with their theories, are as valid against such an old and beneficent government as against the most violent tyranny, or the greenest usurpation. They are always at issue with governments, not on a question of abuse, but a question of competency, and a question of title.¹¹

The point at issue between Burke, on the one hand, and the revolutionists and the whole "natural rights" school of political thought, on the other, was not a question of what made a constitution good or when authority was abused. It was "a question of title." They held that there was one and only one legitimate title to political authority: "the rights of men." Burke's counter-argument was that "prescription … gives right and title."¹² In the passage in which he used that phrase, he was speaking of the title to real estate, but he explained in another place: "Prescription is the most solid of all titles, not only to property, but, which is to secure that property, to Government."¹³ Prescription, according to Burke, gave "right and title" not only to real property but to inherited liberties, religion, and political authority. We therefore do not understand the dispute between Burke and his "rights of men" opponents unless we see that the point at issue was precisely one of the title to political authority.

In the context of this dispute, the "rights of men" were reducible to one: the sovereign right of every individual in the state of nature to govern himself. From this natural right of the individual it followed that society, or at least civil society endowed with the authority to govern, was formed and legitimately could only be formed by a voluntary compact among individuals. The compact brought into being a sovereign people which, being composed of originally sovereign and politically equal individuals, was of necessity governed by majority rule. The people, acting by majority, were the authors and always remained the masters of the society's constitution and government.

Burke explained this doctrine of his opponents in the following terms in the sequel to the Reflections, which he published in 1791 under the title An Appeal From the New to the Old Whigs:

These new whigs hold, that the sovereignty, whether exercised by one or many, did not only originate from the people (a position not denied, nor worth denying or assenting to) but that, in the people the same sovereignty constantly and unalienably resides; that the people may lawfully depose kings, not only for misconduct, but without any misconduct at all; that they may set up any new fashion of government for themselves, or continue without any government at their pleasure; that the people are essentially their own rule, and their will the measure of their conduct; that the tenure of magistracy is not a proper subject of contract; because magistrates have duties, but no rights; and that if a contract de facto is made with them in one age, allowing that it binds at all, it only binds those who are immediately concerned in it, but does not pass to posterity.¹⁴

This theory, according to Burke, rested on two false principles which he restated later in the same work. The first was "that the people, in forming their commonwealth, have by no means parted with their power over it."¹⁵ The other was the "principle of the right to change a fixed and tolerable constitution of things at pleasure."¹⁶ The words to be underscored in this phrase are, once again, at pleasure. The object of Burke's attack was the idea that the will of a majority of the people, told by the head, was its own supreme rule.

Against this notion Burke expounded a theory of political authority derived from an Aristotelian theory of the state set in the framework of the Christian doctrine of creation. "His conception of 'nature' and the 'natural' is in its essence Greek to the core," says John MacCunn. "It is the Aristotelian conception of the organized 'natural' municipal State read into the life of the modern nation."¹⁷ Between the Greek polis and the eighteenth-century national state there is, as the French say, a certain distance, and Burke did not take over Aristotle's Politics in its entirety. Yet he did base his notion of the state on a teleological conception of nature, as the following passage with its Aristotelian echoes reveals:

The state of civil society … is a state of nature; and much more truly so than a savage and incoherent mode of life. For man is by nature reasonable; and he is never perfectly in his natural state, but when he is placed where reason may be best cultivated, and most predominates. Art is man's nature. We are as much, at least, in a state of nature in formed manhood, as in immature and helpless infancy.¹⁸

Hence, while society is indeed a contract, as Burke said in the Reflections, it is no ordinary contract. It is "a partnership in every virtue, and in all perfection."¹⁹ Society has a natural end or purpose, from which its fundamental law is derived, and that end is the full intellectual and moral development of human nature.

Aristotle has said as much. But Burke also saw man as a creature of God "who gave us our nature, and in giving impressed an invariable Law upon it."²⁰ God, as the Creator of human nature, is also the ultimate author of the state. Even though the state might be founded by a voluntary compact among men—"which in many cases it undoubtedly was," Burke was willing to admit²¹—the binding force of the compact nevertheless came from God because "if no supreme ruler exists, wise to form, and potent to enforce, the moral law, there is no sanction to any contract, virtual or even actual, against the will of prevalent power."²²

Therefore, as Fennessy has put it, "the natural foundation of society is, for Burke, the given moral relation between men, imposed and sanctioned by the act of creation."²³ Burke's ideological opponents also acknowledged Nature and Nature's God. "Both he and they," in MacCunn's words, "believe that, behind the struggles and the flux of politics, there is an objective order which (to revert once more to Burke's words) holds all things fast in their place, and that to this objective order men and nations are bound to adapt themselves."²⁴ But for Burke's opponents the objective moral order was the foundation of the natural and imprescriptible rights of men and therefore of the untrammeled sovereignty of the people. Burke's task was to show that, on the contrary, the moral order was the source of political obligations that bound even the people.

To this task he addressed himself with his most closely reasoned argument in An Appeal From the New to the Old Whigs. The objective, divinely-founded moral order, he there argues, is the source of duties as well as of rights, and duties are not subject to the will of those who are bound by them. Some duties are assumed voluntarily, but the most basic ones are not; and even voluntarily assumed duties do not for that reason fail to be obligations.²⁵

"We have obligations to mankind at large," says Burke, "which are not in consequence of any special voluntary pact. They arise from the relation of man to man, and the relation of man to God, which relations are not matters of choice."²⁶ They are consequences of God having created men as human beings whose very nature entails morally binding relationships. Why is a man bound to act morally in his relationships with other men? Because, Burke argues, he is a man—a free, rational, and social being—and his nature as a man obliges him to act according to the relationships inherent in that nature. But why must he respect what is inherent in his nature? Because his nature is created by God who has written His will into it as its constitutive law.

The most basic moral obligations thus rest upon the metaphysics of a created universe and are the source of all subsequent and subordinate obligations: "the force of all the pacts which we enter into with any particular person or number of persons amongst mankind, depends upon those prior obligations." The pacts to which Burke refers are relations among persons established by consent. But other derived and subordinate relations are involuntary, yet nonetheless give rise to "compulsive" duties:

When we marry, the choice is voluntary, but the duties are not matter of choice. They are dictated by the nature of the situation…. Parents may not be consenting to their moral relation [to their children]; but consenting or not, they are bound to a long train of burthensome duties towards those with whom they have never made a convention of any sort. Children are not consenting to their relation [to their parents], but their relation, without their actual consent, binds them to its duties; or rather it implies their consent, because the presumed consent of every rational creature is in unison with the predisposed order of things.²⁷

Two fundamental principles are laid down in this passage. First, that a relationship may be established by consent, as marriage is, yet once established it creates obligations that are independent of and superior to consent. Second, that a relationship established without consent, like that of a child (who did not ask to be conceived) toward his parents, nevertheless creates obligations. What is more, the obligations not only bind the child without his prior consent, they command his consent because "the presumed consent of every rational creature is in unison with the predisposed order of things." The child is obliged by his nature as a rational creature to consent to his obligations to his parents and to other duties that flow from this initial obligation. The consent, of course, cannot become actual until he reaches the age of reason, but in the meantime it is legitimately presumed because it is obligatory and cannot morally be refused.

In Burke's moral universe, therefore, obligation is antecedent to consent and compels consent. We must consent, rationally and freely, to the morally obligatory relationships that are knit into "the predisposed order of things." This order of things is, in its most fundamental meaning, the frame of the world, and, specifically, of the human world as created by God. Derivatively, it is the contingent part of that human world into which a man is born.

To illustrate this last point, one may remark that there is nothing in the nature of man as man that requires that a particular family should exist at a given time and place and in a given social situation. The particular family, therefore, is a contingent reality. Nonetheless, children are born, not to man as man, but to some particular parents who, normally at least, are the founders of a particular family. It is through them that their children get their place in society, with its duties as well as its rights. "Men come … into a community with the social state of their parents, endowed with all the benefits, loaded with all the duties of their situation."²⁸ This situation is, to be sure, contingent inasmuch as it need not have existed. But it does exist, and by existing, it creates obligations for its participants, to which their consent is mandatory.

The root of the obligations is "that the awful author of our being is the author of our place in the order of existence; and that having disposed and marshalled us by a divine tactick, not according to our will, but according to his, he has, in and by that disposition, virtually subjected us to act the part which belongs to the place assigned us."²⁹ The divine act of creation ex tends itself in history through the providence by which God governs the world and establishes particular as well as universal obligations.

If, in this manner, we are "loaded with all the duties" of our family's situation, "so without any stipulation on our own part, are we bound by that relation called our country." For "our country is not a thing of mere physical locality. It consists, in a great measure, in the antient order into which we are born." An order is a relation or, more accurately, a network of relations and, like other human relations, it creates obligations. "The place that determines our duty to our country is a social, civil relation."³⁰

It is immaterial, therefore, that "civil society might be at first a voluntary act." Even if it was, what counts is that "its continuance is under a permanent standing covenant, co-existing with the society; and it attaches upon every individual of that society, without any formal act of his own."³¹ The generation that voluntarily founded a civil society are bound by that to which they consented, as are partners in marriage. Later generations are born into the society, not only physically, but morally: they are born to the covenant or constitution and its legal political obligations. As Fennessy says, for Burke "it was not consent that made the social bond, but a created social bond that demanded the consent of free and rational creatures."³²

These obligations may be conceived, as the men of the eighteenth century commonly did conceive them, as contractual in nature. Even so, Burke argued, a social contract is a moral engagement and does not leave certain members of the society free to change the contract merely because they are the majority:

Neither the few nor the many have a right to act merely by their will, in any matter connected with duty, trust, engagement, or obligation. The constitution of a country being once settled upon some compact, tacit or expressed, there is no power existing of force to alter it, without the breach of the covenant, or the consent of all the parties. Such is the nature of a contract. And the votes of a majority of the people, whatever their infamous flatterers may teach in order to corrupt their minds, cannot alter the moral any more than they can alter the physical essence of things.³³

This was a rather narrowly legalistic argument, however, and leaves the impression that the people are obliged to maintain the social contract merely because contracts are morally binding. Burke's argument rested, however, on the wider and deeper premise that man is by nature rational and, because rational, social. In saying that the Creator willed the state as the necessary means to human nature's full development and perfection, Burke meant that God willed the historically-evolved social order.

The particular form that the state took depended on "the circumstances and habits of every country."³⁴ But once the state, with its particular and historically conditioned form, had come into existence, its constitution became a contingent part of the moral order and was endowed with the binding force of the universal, divinely-willed moral law.

One may feel here that Burke is engaging in intellectual sleight of hand. What justifies this slide from the universal moral order, in all its majesty and perfection, to the constitution of a particular state, with its all too human imperfections, as if they were morally both of one piece? The answer, in Burke's view, is that they are of one piece.

Universal moral imperatives are, as such, abstractions and become actual only in the concrete and particular. As was said above, children are born, not to man as man, but to particular parents in a particular family. They have natural obligations, not, however, to parenthood or to parents in general, but to their parents. So, too, while marriage is a natural relationship and carries with it natural obligations, marriage as such exists nowhere. In the real world, Man does not marry Woman. All that happens or can happen is that John marries Mary. They thereby contract marital obligations that are rooted in the complementary natures of the two sexes. But the obligations are not to the opposite sex as such, but to each other as individual persons.

Similarly, while it is meaningful to say that God wills the state because man's rational nature requires civil society, civil society cannot exist in the abstract and simply as such. If civil society implies moral obligations, those obligations can take concrete form and become actually binding only in a particular state under a particular constitution. "Constitutions," as Burke once put it, "furnish the civil means of getting at the natural."³⁵ Or, as he said in praise of the British constitution, "The foundation of government is there laid, not in imaginary rights of men, … but in political convenience, and in human nature; either as that nature is universal, or as it is modified by local habits and social aptitudes."³⁶ In the created universe, the necessary is realized in the contingent, the universal in the particular, the natural in the conventional. The distinctions among these are valid, but in actual existence they are all of one piece. The universal moral order is the order of a real, historically-existing world.

Burke thus speaks the language of the social contract theory, but with a difference. He begins his most oftquoted passage on the roots of political obligation with the words, "Society is indeed a contract."³⁷ Yet, as C. E. Vaughan points out, with some exaggeration, in Burke's hands the implications of the contract undergo a profound change:

The mere act of consent, which to Locke was all in all, has ceased to be of any importance. It has, in fact, come to stand for something very different; an obligation which is binding upon all men, whether they choose to recognise it or no. It is no longer the consent itself, but the thing to which consent has been given—no longer the contract, but the particular obligation contracted—that counts. Under these circumstances, the consent, the contract, is manifestly no true consent, no contract at all. The consent, so far from being actually given, is tacitly assumed. The contract, so far from being matter of choice, is imposed by the necessities of man's nature.³⁸

The derivation of the bond of civil society from the necessities of man's nature shifts the emphasis, not only from consent to obligation, but also from rights to purposes. With Burke, the inquiry into the source of political obligation no longer begins with men's prepolitical rights in a state of nature, but with the purposes of civil society. The "real rights of men," says Burke, are not the abstract original rights of men, but the benefits that civil society can and should confer on them. They are the goals or purposes of civil society, rooted ultimately in the nature of man and in the creative act of God. These goals are not only men's rights but, as Burke explained in An Appeal, are also the source of their obligations in civil society:

Men without their choice derive benefits from that association; without their choice they are subjected to duties in consequence of these benefits; and without their choice they enter into a virtual obligation as binding as any that is actual. Look through the whole of life and the whole system of duties. Much the strongest moral obligations are such as were never the results of our option.³⁹

To say this is not to deny that men have rights, nor even that these rights are in a valid sense natural. But it is to deny that the authority of civil society derives from the consent of men who were by nature independent of any civil bond and who therefore retain the natural right to make and unmake the civil bond at pleasure. The structure of authority and the form of government are framed, not in the light of the original independence and equality of men in the state of nature, but with a view to the benefits which civil society exists to confer upon them. "Government is not made in virtue of natural rights, which may and do exist in total independence of it…. Government is a contriv ance of human wisdom to provide for human wants. Men have a right that these wants should be provided for by this wisdom."⁴⁰

The constitution of civil society is determined by human needs, not by original rights. Consequently, "the whole organization of government becomes a consideration of convenience,"⁴¹ i.e., of aptitude for satisfying those needs, and "the true statesman … thinks of the place in which political power is to be lodged, with no other attention, than as it may render the more or the less practicable, its salutary restraint, and its prudent direction."⁴² A properly made constitution is one that places power in the hands of those who have the requisite wisdom and virtue to direct society in such a way as to provide for men's genuine needs.

But the needs which civil society exists to satisfy are many and varied, and so its constitution cannot be framed for any single or narrow purpose. "The nature of man is intricate; the objects of society are of the greatest possible complexity; and therefore no simple disposition or direction of power can be suitable either to man's nature, or to the quality of his affairs."⁴³ It is the ends of civil society, not its origins, that shape its constitution, but those ends are complex and so, too, should the constitution be.

But, however complex the ends of civil society, they may be subsumed under one general goal: the good of the people. This goal is the only one that government may legitimately intend: "all political power which is set over men, … being wholly artificial, and for so much a derogation from the natural equality of mankind at large, ought to be some way or other exercised ultimately for their benefit."⁴⁴ End or purpose, however, is a coin the obverse side of which is result or effect. Political power is not justified by the ends it merely intends, but by those it actually achieves. The good of its members is the purpose of civil society but the purpose is morally inadequate unless it becomes an accomplished result.

"The practical consequences of any political tenet go a great way in deciding upon its value," Burke said. "… What in the result is likely to produce evil, is politically false: that which is productive of good, politically true."⁴⁵ It was on this basis that he passed judgment on the French Revolution. "I cannot think that what is done in France is beneficial to the human race," he said. But, he admitted, "if it were, the English constitution ought no more to stand against it than the antient constitution of the kingdom in which the new system prevails."⁴⁶ He used the same criterion for old institutions, but all the more easily because their results were already visible. "Old establishments are tried by their effects. If the people are happy, united, wealthy, and powerful, we presume the rest. We conclude that to be good from whence good is derived."⁴⁷

To summarize, in his critique of the natural rightssocial contract theory Burke shifted the basis of political authority from original rights, individual consent, and the sovereignty of the popular majority to the purposes and achieved results of civil society. Civil society, though in itself an artificial and conventional human construct, has a natural claim on men's obedience because it has a natural and God-given purpose: to serve the needs of human nature. Political obligation is therefore in principle antecedent to political consent. Since, however, civil society as such is an abstraction and has real existence only in concrete and historically-conditioned forms, men are obliged to accept and respect the particular constitution to which they are born. But the obligation, in the concrete, is not absolute and unqualified. That constitution has a claim on men's obedience which in fact has served them well or at least, in the exceptional case of a justified revolution, gives solid promise of doing so.

It is in this intellectual framework, which Burke went to great pains to establish, that we must set his thesis that prescription is a title to political authority. There have been those who found the framework, like the doctrine of prescription itself, mystifying. For example, G. P. Gooch says that "despite his passionate denunciation of metaphysical politics, Burke's own philosophy is suffused with mysticism. His profoundly religious temper led him to regard the moral relations and duties of man and the order of society as of divine institution."⁴⁸ Such language can be used, however, only by those who cannot tell the difference between metaphysics and mysticism. There is nothing particularly mystical about Burke's metaphysics. As Russell Kirk says, his "view of the cosmos may be true, or it may be delusory; but it is not obscure, let alone incomprehensible."⁴⁹ But without it, his doctrine of prescription is indeed incomprehensible.

Burke did not mean by prescription of government—despite what he seemed to say—that government gained authority merely by lasting a long time or that men's rights and obligations in civil society were independent of natural law. He did not mean this even in his Speech on the Reform of the Representation of the Commons in Parliament, where he said that the sole authority of the British constitution was that it had existed time out of mind.⁵⁰

What he was getting at may be gleaned from a speech he wrote for delivery in the Commons in 1792:

The foundations, on which obedience to government is founded, are not to be constantly discussed. That we are here, supposes the discussion already made and the dispute settled. We must assume the rights of what represents the Publick to control the individual, to make his will and his acts to submit to their will, until some intolerable grievance shall make us know that it does not answer its end, and will submit neither to reformation nor restraint.⁵¹

The centuries-old existence of the British constitution was sufficient proof that the nation had already decided where political authority was to be lodged. That decision was not to be reopened with every new generation, but must be taken as right and binding until some intolerable and irremediable grievance showed that government was not answering its end and was refusing to achieve the purpose for which it was instituted.

But the established constitution, however long it has endured, cannot be its own self-sufficient norm of goodness. Burke's position on this point is indicated by his answer to Warren Hastings during the latter's impeachment as the East India Company's Governor-General in India. Hastings had argued that when the Company acquired sovereignty over Indian states, it had accepted despotic and arbitrary power which he, Hastings, exercised in its name. For such was the traditional constitution of Asia and such, given the conditions of Asiatic society, was the only way in which Asiatics could be ruled.

If a prescriptive constitution were established by mere passage of time, Hasting's argument would be conclusive, at least for Burke. But Burke replied that neither the Company nor the British government could have acquired or given arbitrary power, "because arbitrary power is a thing, which neither any man can hold nor any man can give." All power is from God and

is bound by the eternal laws of Him, that gave it, with which no human authority can dispense; … The title of conquest makes no difference at all. No conquest can give such a right; for conquest, that is force, cannot convert its own injustice into a just title, by which it may rule others at its pleasure.⁵²

We notice once again that the unforgivable sin is to claim the right to rule at pleasure. It matters not whether the government be constitutionally democratic or despotic:

Despotism if it means any thing, that is at all defensible, means a mode of government, bound by no written rules, and coerced by no controlling magistracies, or well settled orders in the state. But if it has no written law, it neither does, nor can, cancel the primeval, indefesible, unalterable law of nature, and of nations; and if no magistracies control its exertions, those exertions must derive their limitation and direction either from the equity and moderation of the ruler, or from downright revolt on the part of the subject by rebellion, divested of all its criminal qualities.⁵³

"There is a sacred veil to be drawn over the beginnings of all governments," according to Burke, and he was willing to contend that "prudence and discretion make it necessary to throw something of the same drapery over more recent foundations" such as British rule in India.⁵⁴ Nonetheless, in accepting governmental powers from the Mogul Empire, the East India Company accepted the responsibility "to observe the laws, rights, usages, and customs of the natives; and to pursue their benefit in all things. For this duty was inherent in the nature, institution, and purpose of the office which they received."⁵⁵

The authority of government thus turns out once more to depend on its fulfillment of its natural purposes, and no prescription derived from mere duration will suffice to justify a government that frustrates these purposes. The prescriptive constitution is the constitution that has proved itself not only by long but by good performance, and the good performance is more decisive than the long. As Gerald W. Chapman says, prescription "makes the point that in all the depth of existence, past and present, there is no ground and sanction for any constitution or state except as by a prescriptive use it is found to be good."⁵⁶

The same point is made by Burke's assertion that prescription can be anticipated. Speaking of the French Revolution, he said:

If they had set up this new experimental government, as a necessary substitute for an expelled tyranny, mankind would anticipate the time of prescription, which, through long usage, mellows into legality governments that were violent in their commencement. All those who have affections which lead them to the conservation of civil order would recognise, even in its cradle, the child as legitimate, which has been produced from those principles of cogent expediency to which all just governments owe their birth, and on which they justify their continuance.⁵⁷

Burke, of course, did not admit that the traditional French monarchy was a tyranny or that the revolutionary substitute for it was necessary. On the contrary, he said of the Revolution, "It is a recent wrong, and can plead no prescription."⁵⁸ But he did say that a revolution could be justified by "those principles of cogent expediency to which all just governments owe their birth, and on which they justify their continuance." "Then what is the standard of expedience?" he asked in another context. "Expedience is that, which is good for the community, and good for every individual in it."⁵⁹

Now, if all just governments are founded on cogent expediency, among them must be even those governments that were violent and unjust in their commencement, but which prescription, through long usage, has mellowed into legality. Unjust in their beginnings, they have become just and have acquired a prescriptive title by their service to the people whom they govern. This is why prescription can be anticipated: the principles of cogent expediency may be operative from the beginning in a violent but necessary change of government.

Prescription of government, therefore, does not depend upon the possession of authority in good faith from the beginning. It does not answer the question whether the predecessors of those who now hold authority acquired it rightfully or whether the existing constitution was originally conceived in justice. Prescription rules out these questions as irrelevant to the only point that is now at issue: is the existing constitution legitimate and does government established under it have the right to rule? The doctrine of prescription answers that question with a qualified affirmative: yes, if it governs for the welfare of the community.

Prescription does not mean that old institutions must be preserved merely because they are old, as if, in Lucas's words, "time alone became the material and efficient cause of prescription." Burleigh Wilkins has pointed out that "Burke's opposition to slavery and the slave trade … shows that the historicity of an institution or a practice is not always in his opinion a fact of moral significance in favour of the institution or practice in question let alone a sufficient condition of its moral worth."⁶⁰

Burke himself explicitly says: "'Monopoly' is contrary to 'Natural Right.' … No monopoly can, therefore, be prescribed in; because contrary to common right." He allows that the state "may grant a monopoly" because, "representing all its individuals," it "may contract for them." But nothing follows from this except that persons may by their own consent or that of their agents surrender the exercise of at least some of their natural rights. Burke adds that the state "ought not to grant this monopoly on arbitrary principles, but for the good of the whole."⁶¹ The basic principle remains that prescription cannot maintain a monopoly contrary to the claims of natural or common right.

Nor is age alone a sufficient reason for preserving institutions of government, as Burke explained in his Speech on Economical Reform in 1780. When the reason for having them is gone, he said, "it is absurd to preserve nothing but the burthen of them."⁶² It is not only absurd, but dangerous, for "there is a time, when men will not suffer bad things because their ancestors have suffered worse. There is a time, when the hoary head of inveterate abuse will neither draw reverence, nor obtain protection."⁶³

On the other hand, age counts for a great deal in judging the value of institutions, and it is therefore wise to recognize it. As Burke said in the same speech, "People will bear an old establishment when its excess is corrected, who will revolt at a new one."⁶⁴ There is a still deeper reason for respecting and conserving what is old. All government, Burke was convinced, "stands upon opinion,"⁶⁵ because "the only firm seat of all authority is in the minds, affections, and interests of the people."⁶⁶ But, "if we must resort to prepossessions for the ground of opinion, it is in the nature of man rather to defer to the wisdom of times passed, whose weakness is not before his eyes, than to the present, of whose imbecility he has daily experience. Veneration of antiquity is congenial to the human mind."⁶⁷

It is to be noticed in this and the numerous other passages where Burke praises veneration of antiquity, that he presents it, not as being in itself the prescriptive title to authority, but as an explanation of why people are willing to accept authority. The statesman, therefore, is not obliged to preserve what is old merely because it is old. But it is wisdom on his part to recognize the advantage offered him by what is old, to preserve it insofar as he can, and to modify it when he must rather than abolish it. Reform, per se, is preferable to revolution.

Prescription, then, is no bar to reform. During the crisis between Great Britain and her American colonies, Burke never questioned Britain's prescriptive right to legislate for the Americans, though he urged great moderation in its use. In 1777, for example, he wrote to the Sheriffs of Bristol, whose representative in Parliament he then was:

When I first came into a publick trust, I found your parliament in possession of an unlimited legislative power over the colonies. I could not open the statute book without seeing the actual exercise of it, more or less, in all cases whatsoever. This possession passed with me for a title. It does so in all human affairs. No man examines into the defects of his title to his paternal estate, or to his established government.⁶⁸

But Burke could contemplate a change in the prescriptive constitution, as is shown by the following passage from an Address to the British Colonists in North America, which he drafted as a last-minute attempt at reconciliation, probably in 1777:

This Constitution has … admitted innumerable improvements, either for the correction of the original scheme, or for removing corruptions, or for bringing its principles better to suit those changes, which have successively happened in the circumstances of the nation, or in the manners of the people.

We feel that the growth of the Colonies is such a change of circumstances; and that our present dispute is an exigency as pressing as any, which ever demanded a revision of our Government. Publick troubles have often called upon this Country to look into its Constitution. It has ever been bettered by such a revision. If our happy and luxuriant increase of dominion, and our diffused population, have outgrown the limits of a Constitution made for a contracted object, we ought to bless God, who has furnished us with this noble occasion for displaying our skill and beneficence in enlarging the scale of rational happiness, and of making the politick generosity of this Kingdom as extensive as its fortune.⁶⁹

Even the French Revolution, while it certainly strengthened Burke's devotion to the traditional order of things, did not lead him to make any fundamental change in the above conception of the constitution. The British constitution, he said in An Appeal, "is the result of the thoughts of many minds, in many ages."⁷⁰ Let us, then, he urged,

follow our ancestors, men not without a rational, though without an exclusive confidence in themselves; who, by respecting the reason of others, who, by looking backward as well as forward, by the modesty as well as by the energy of their minds, went on, insensibly drawing this constitution nearer and nearer to its perfection by never departing from its fundamental principles, nor introducing any amendment which had not a subsisting root in the laws, constitution, and usages of the kingdom.⁷¹

The prescriptive constitution does not rule out change; indeed, its development and even its survival depend on change. But it does rule out radical change, the kind of change that either is or pretends to be a clean break with the past. For it is continuity with the past that makes the constitution a predisposed order of things to which men are born and which has an antecedent claim on their obedience and consent. There is no predictable limit to the changes that a prescriptive constitution may undergo, provided that the direction of change continues to be set by the controlling end, the good of the people. But the changes must be gradual and evolutionary, "insensibly drawing [the] constitution nearer and nearer to its perfection by never departing from its fundamental principles."

Finally, prescription does not mean that authority cannot be lost by abuse. Burke urged taking political power in India away from the East India Company on a general principle that would apply against any government, however ancient, that had become inimical to the purposes of all just governments:

that this body, being totally perverted from the purposes of its institution, is utterly incorrigible; and because they are incorrigible, both in conduct and constitution, power ought to be taken out of their hands; just on the same principles on which have been made all the just changes and revolutions of government that have taken place since the beginning of the world.⁷²

What the doctrine of prescription really means, therefore, is that the abuse of political authority is the only moral ground on which it can be lost. Power is rightly taken from a government which has become "totally perverted from the purposes of its institution." But that the constitution of a state originated in wrong, or that it contains no mechanism for registering the formal consent of a majority of the present generation, is irrelevant. These are "speculative," not "real" grievances in Burke's eyes, and they do not suffice to justify the refusal of political obedience.

Yet to assert that prescriptive authority can be lost only by abuse is not to deny that all just governments depend on the consent of the governed. Burke, at any rate, thought that the two propositions were reconcilable. In his early treatise, A Tract relative to the Laws against Popery in Ireland, he expounded a thesis which is consistent with and throws light upon his later political theory in this respect.

Having described how the penal laws against Catholics, who were the bulk of the Irish population, deprived them of their elementary human rights, Burke remarked: "A Law against the majority of the people is in substance a Law against the people itself: its extent determines its invalidity."⁷³ In other words, "a Law directed against the mass of the Nation" simply lacks the authority of the law. The reason that Burke gives for this principle is significant:

In all forms of Government the people is the true Legislator; and whether the immediate and instrumental cause of the Law be a single person, or many, the remote and efficient cause is the consent of the people, either actual or implied; and such consent is absolutely essential to its validity.⁷⁴

This conception of the people as the ultimate authors of all law is as compatible with monarchy or aristocracy as with democracy. Burke's point here is that, under any form of government, the people, whose actual or implied consent is necessary, cannot be understood to consent to a law that excludes them "not from favours, privileges and trusts, but from the common advantages of society."⁷⁵ When the people subject themselves to government, "it is their judgment they give up, not their right."

It is their judgment they give up…. Burke explains:

The people, indeed, are presumed to consent to whatever the Legislature ordains for their benefit; and they are to acquiesce in it, though they do not clearly see into the propriety of the means, by which they are conducted to that desirable end. This they owe as an act of homage and just deference to a reason, which the necessity of Government has made superiour to their own.⁷⁶

The necessity of government (founded in the nature of man and the will of God) requires the people to submit their judgment to the superior reason of those who govern. The consent of the governed is a rational consent, not an arbitrary one which the people may give or withhold at pleasure. Yet neither the government nor the people themselves have a "right to make a Law prejudicial to the whole community … because it would be made against the principle of a superiour Law, which it is not in the power of any community, or of the whole race of man, to alter—I mean the will of Him, who gave us our nature, and in giving impressed an invariable Law upon it."⁷⁷

The consent of the people, in short, is given by implication, and is therefore legitimately presumed, to whatever is done for their benefit. But what is clearly not done for their benefit cannot have their consent, and so is invalid. This theory of the relationship between political obligation and consent harmonizes with Burke's later statements and is not an early position that he later abandoned.

It is consistent with his later contention that the fact that "a nation has long existed and flourished under" a "settled scheme of government … is a better presumption even of the choice of a nation, far better than any sudden and temporary arrangement by actual election."⁷⁸ It is consistent with his statement in the Reflections: "There is no qualification for government but virtue and wisdom, actual or presumptive."⁷⁹ And it leads into his argument, in An Appeal, that the upper classes enjoy a legitimate presumption in favor of their wisdom and virtue. He there maintains that the state of civil society, which is man's truly natural state, necessarily generates a class structure which in turn generally produces a natural aristocracy of the wise and good. The members of this aristocracy "form in nature, as she operates in the common modification of society, the leading, guiding, and governing part." To deprive them of authority, in the name of the political equality of all citizens, is "a horrible usurpation."⁸⁰

All government, for Burke, is a trust to be exercised for the benefit of the people by those who are qualified for the task by wisdom and virtue. That a nation has long existed and flourished under a constitution is an indication that the trust has been and is being fulfilled. It is also an indication that the people consent to the trustees and their government. But if, for the moment, a majority of them do not consent, it is no matter. Their consent is legitimately presumed because the natural law requires their consent to a good government. Prescription of government is a part of the law of nature.

Burke's conception of the natural aristocracy is obviously anti-democratic and has been criticized, reasonably enough, on the ground that it too facilely identifies the wise and the good with the well-born and the well-to-do. His defense of the unreformed representative system in Great Britain is simply out of date today. So, too, is his interpretation of the British constitution as a contract to which King, Lords, and Commons are parties. But his doctrine of prescription, though used to justify those governmental arrangements, has a significance that transcends them and is still relevant to political theory.

It is a continuing theoretical problem why men should be morally obliged to obey other men in civil society. The myth of the state of nature and the social contract has almost wholly disappeared from formal political thought by now. Yet the assumptions of liberal individualism which that myth embodied remain as the premises of much of contemporary political discourse, as Alexander Bickel pointed out. To those who find individualism an inadequate basis for explaining either the facts or the obligations of political life, Burke's doctrine of prescription offers an alternative that could be developed in a contemporary political theory. Without attempting such a development here, one may suggest that its central theme would be the priority of purpose to consent as the source of political obligation.

Notes

¹Works, 5: 276.

² "On Edmund Burke's Doctrine of Prescription," Historical Journal, 11 (1968): 36.

³Works, 9: 449.

⁴ "On Burke's Doctrine of Prescription," p. 36.

⁵ Ibid., p. 35.

⁶ Ibid., p. 40-41.

⁷ Ibid., p. 62.

⁸ Ibid., p. 36. Burke is in flat disagreement with Warburton, who holds that "the Law of Prescription directly contradicts the Law of Nature and Nations." Alliance of Church and State, p. 127.

⁹Burke, Paine, and Rights of Man, p. 131-132.

¹⁰Works, 10: 93.

¹¹ Ibid., 5: 119-120.

¹²Correspondence, 6: 95.

¹³Works, 10: 96.

¹⁴ Ibid., 6: 147. Cf. ibid., 7: 18. In this chapter, subsequent references to An Appeal from the New to the Old Whigs will be by short title and page number in Works, vol. 6.

¹⁵ Ibid., p. 200.

¹⁶ Ibid., p. 230.

¹⁷Political Philosophy of Burke, p. 54.

¹⁸Appeal, p. 218.

¹⁹Works, 5: 184.

²⁰ Ibid., 9: 349-350.

²¹Appeal, p. 205.

²² Ibid.

²³Burke, Paine, p. 110.

²⁴Political Philosophy of Burke, p. 144.

²⁵Appeal, pp. 204-207.

²⁶ Ibid., p. 206.

²⁷ Ibid., pp. 206-207.

²⁸ Ibid., p. 207.

²⁹ Ibid., p. 206.

³⁰ Ibid., p. 207.

³¹ Ibid., p. 205.

³²Burke, Paine, p. 114.

³³Appeal, p. 201-202. Cf. Works, 5:57-58.

³⁴Appeal, p. 133.

³⁵Works, 9: 112.

³⁶Appeal, p. 257.

³⁷Works, 5: 183.

³⁸Studies in the History of Political Philosophy before and after Rousseau, ed. A. G. Little, 2 vols. (Manchester: University of Manchester Press, 1925), 2: 53.

³⁹ P. 205.

⁴⁰Works, 5: 122-123.

⁴¹ Ibid., 5: 123.

⁴²Appeal, p. 203.

⁴³Works, 5: 125.

⁴⁴ Ibid., 4: 11.

⁴⁵Appeal, p. 210.

⁴⁶Works, 7: 114-115.

⁴⁷ Ibid., 5: 310.

⁴⁸ "Europe and the French Revolution," Cambridge Modern History, 13 vols. (New York: Macmillan, 1907-1911), 8: 757.

⁴⁹ "Burke and the Philosophy of Prescription," Journal of the History of Ideas, 14 (1953): 368.

⁵⁰Works, 10: 96.

⁵¹ Ibid., 10: 51.

⁵² Ibid., 13: 166-167.

⁵³ Ibid., 13: 169-170.

⁵⁴ Ibid., 13: 95-96.

⁵⁵ Ibid., 13: 24.

⁵⁶Edmund Burke: the Practical Imagination (Cambridge, Mass.: Harvard University Press, 1967), p. 166.

⁵⁷Works, 5: 298.

⁵⁸ Ibid., 8: 189-191.

⁵⁹ Ibid., 10: 100.

⁶⁰The Problem of Burke's Political Philosophy (Oxford: Clarendon Press, 1967), p. 237. Cf. Works, 9: 276-315.

⁶¹ "Notes on Copy-Right Bill and Monopolies Generally," Correspondence of the Right Honourable Edmund Burke, ed. Charles William, Earl Fitzwilliam, and Sir Richard Bourke, 4 vols. (London: Francis and John Rivington, 1844), 4: 459-460.

⁶²Works, 3: 278.

⁶³ Ibid., 3: 246-247.

⁶⁴ Ibid., 3: 313.

⁶⁵ Ibid., 10: 93.

⁶⁶ Ibid., 9: 178.

⁶⁷ Ibid., 9: 370.

⁶⁸ Ibid., 3: 177.

⁶⁹ Ibid., 9: 212.

⁷⁰ P. 261.

⁷¹ Ibid., p. 265-266.

⁷²Works, 4: 111.

⁷³ Ibid., 9: 347-348.

⁷⁴ Ibid., 9: 348.

⁷⁵ Ibid., 9: 349.

⁷⁶ Ibid., 9: 348-349.

⁷⁷ Ibid., 9: 349-350.

⁷⁸ Ibid., 10: 96.

⁷⁹ Ibid., 5: 106.

⁸⁰Appeal, pp. 217-19.

Works Cited

Works. The Works of the Right Honourable Edmund Burke. 16 vols. London: F. C. and J. Rivington, 1803-1827. (A new and definitive edition, The Writings and Speeches of Edmund Burke, under the general editor-ship of Paul Langford, began publication by the Clarendon Press at Oxford in 1981 but, since at the time of this writing it was still incomplete, I have used the Rivington edition for the sake of uniformity of reference.)

Correspondence. The Correspondence of Edmund Burke. Edited by Thomas W. Copeland. 10 vols. Cambridge: At the University Press; Chicago: University of Chicago Press, 1958–1970.

Samuels, Early Life. Samuels, Arthur P. I., The Early Life, Correspondence, and Writings of the Rt. Hon. Edmund Burke. Cambridge: At the University Press, 1923.

Parliamentary History. The Parliamentary History of England, from the Earliest Period to the year 1803. 36 vols. London: T. C. Hansard, 1806–1820.