Burke on Prescription of Government

Author(s): Francis Canavan

Reviewed work(s):
Source: The Review of Politics, Vol. 35, No. 4 (Oct., 1973), pp. 454-474
Published by: Cambridge University Press for the University of Notre Dame du lac on behalf of Review of
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Burke on Prescription of Government
Francis Canavan, S.J.
ProfessorPaul Lucas has describedEdmund Burke'stheory of
prescriptionas his "idea about the way in which an adverseposses-
sion of propertyand authoritymay be legitimatedby virtue of use
and enjoymentduring a long passageof time."l The descriptionis
accurate so far as it goes. Burke certainly maintained that if one
had held uncontestedpossessionas the owner of a piece of property
for a sufficientlylong period of time, no earliertitle 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'seyes was "the
soundest,the most general,and the most recognizedtitle ... a title,
which ... is rooted in its principle,in the law of nature itself, and
is indeed the original ground of all known property."2 Burke also
said: "Prescriptionis the most solid of all titles, not only to prop-
erty, but, which is to secure that property,to Government."3
It would seem, then, that Burke founded a government'slegit-
imacy and its just title to authorityon the mere fact of its having
exercisedauthorityfor a long time. In the light of some of Burke's
remarks,this impressionis plausible. But in the light of Burke's
whole political theory, as I hope to show, the impressionis seen
to be wrong. Lucas' description of Burke's idea of prescription,
while accurateso far as it goes, does not go far enough.
Burke's doctrine of prescription,as R. R. Fennessy remarks,
"is by no means an anti-rational defense of existing institutions,
based on feelings of reverencefor antiquity. It is a theoreticalan-

1 Paul Lucas, "On Edmund Burke's Doctrine of Prescription,"Historical

Journal, XI (1968), 36.
2 Letter from Burke to
his son, undated, The Works of the Right Honour-
able Edmund Burke (16 vols.; London: Rivington, 1803-1827), IX, 449.
All subsequent references to Burke's Works will be to this edition.
3 Speech on the Reform of the Representation of the Commons in Parlia-
ment, Works, X, 96. Burke wrote this speech in May, 1782, in answer to a
motion made in the House of Commons for a committee to inquire into the
state of the representation of the people in that house. According to J.G.A.
Pocock, "Burke and the Ancient Constitution,"Historical Journal, III (1960),
139-140, Burke did not deliver the speech. But it is an important exposition
of his thought.
454
 BURKE ON PRESCRIPTION 455

swer to a problemof political theory."4 Burkewas not speculating

in a vacuum when he spoke of prescriptionof government; he
was arguing against what he regarded as a false and dangerous
theory of the origin and nature of political authority. Burke'sde-
fense of authorityas prescriptive,therefore,must be understoodin
the light of the theory to which it was a reply. To try to under-
stand Burke'sdoctrineof prescriptionof governmentin itself, with-
out referenceto the opposing doctrine,is to run the risk of missing
its most salient 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
misunderstoodthem, even though for polemical reasons he did
reduce their argumentsto their simplestand most radical form. It
would be hard to oversimplifyThomas Paine's thesisin The Rights
of Man, but it was doubtlessunfair of Burke to take Paine as the
exponent of the views of all the English sympathizerswith the
French Revolution. Nonethless, to understandwhat Burke meant
by prescription, we must first understand the position against
which he directedthe doctrineof prescription,and we must under-
stand it as he did.
He had summarized that position several years before the
French Revolution in his Speech on the Reform of the Representa-
tion of the Commons in Parliament. Burke, who was adamantly
opposed to parliamentaryreform, that is, reapportionmentof the
seats in the House of Commons, said that most of those seeking
reform claimed the right to vote for membersof Parliamentas one
of "the supposedrights of man as man." The right, therefore,was
absolute and

they, who plead an absoluteright, cannot be satisfiedwith any

thing short of personalrepresentation,becauseall natural rights
must be the rights of individuals;as by nature there is no such
thing as politic or corporatepersonality;all these ideas are mere
fictionsof law, they are creaturesof voluntaryinstitution;men as
men are individuals,and nothingelse. They, therefore,who reject
the principle of natural and personalrepresentation,are essen-
tially and eternally at variance with those who claim it . . . it is
ridiculousto talk to them of the Britishconstitutionupon any or
upon all of its bases;for they lay it down that everyman ought to
4 R. R. Fennessy,Burke, Paine and the Rights of Man (The Hague, 1963),
p. 131.
456 THE REVIEW OF POLITICS

govern himself, and that where he cannot go himself he must

send his representative; that all other government is usurpation,
and is so far from having a claim to our obedience, it is not only
our right, but our duty, to resist it. Nine tenths of the reformers
argue thus, that is, on the natural right.5

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 argu-

ment 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 specula-
tists, 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.6

The "rights of men," in the context of this dispute, were redu-

cible 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 gov-
ernmental authority, 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 neces-
sity governed by majority rule. The people, acting by majority, were
the authors and always remained the masters of the society's consti-
tution and government.
This theory, according to Burke, rested on two false principles.
He stated them as follows in the sequel to the Reflections, which he
published in 1791 under the title, An Appeal from the New to the
Old Whigs. The first was "that the people, in forming their com-
5 Works, X, 93-95.
6 Works, V, 119-120.
 BURKE ON PRESCRIPTION 457

monwealth, have by no means parted with their power over it."7

The other was the "principleof the right to change a fixed and
tolerable constitution of things at pleasure."8 The words to be
underscoredin this phrase are at pleasure. The object of Burke's
attack was the idea that the will of a majorityof the people, told by
the head, was its own supremerule.
Against this notion Burke expounded a theory of political
authorityderivedfrom an Aristoteliantheory of the state set in the
frameworkof the Christiandoctrine of creation. "His conception
of 'nature'and the 'natural'is in its essenceGreekto the core,"says
John MacCunn. "It is the Aristotelianconceptionof the organized
'natural'municipal State read intolthe life of the modem nation."9
Between the Greek polls and the eighteenth-centurynational state
there is, of course,as the French say, a certain distance, and Burke
did not take over Aristotle'sPolitics wholesale. Yet he did base his
notion of the state on a teleological conception of nature, as the
following passagewith its Aristotelianechoes reveals.
The state of civil society... is a state of nature;and much more
trulyso than a savageand incoherentmode of life. For man is by
nature reasonable;and he is never perfectlyin his natural state,
but when he is placed where reasonmay be best cultivated,and
mostpredominates.Art is man'snature. We are as much, at least,
in a state of naturein formedmanhood,as in immatureand help-
lessinfancy.10

Hence, while society is indeed a contract, as Burke said in the

Reflections,it is no ordinarycontract. "It is a partnershipin every
virtue; and in all perfection."1 Society has a natural end or
purpose,from which its fundamentallaw is derived,and that end is
the full intellectualand moral developmentof human nature.
Aristotlehad said as much. But Burkealso saw man as a crea-
ture of God "who gave us our nature, and in giving impressedan
invariableLaw upon it."12 God, as the Creatorof human nature,
7
Works, VI, 200.
8 Works, VI, 230. See, Thoughts on French Affairs
(1791), Works, VII, 18;
Observations on the Conduct of the Minority (1793), Works, VII, 270-272.
9 John MacCunn, The Political Philosophy of Burke (London, 1913), p. 54.
10 Appeal, Works, VI, 218.
11 Works, V, 184.
12
Tract relative to the Laws against Popery in Ireland, Works, IX, 349-
350. Thomas H. D. Mahoney says that this document "was probably written
during the fall of 1761 but was not published until after Burke's death."
Edmund Burke and Ireland (Cambridge, Mass., 1960), p. 15.
458 THE REVIEW OF POLITICS

is also the ultimate authorof the state: "He who gave our nature to
be perfected by our virtue, willed also the necessarymeans of its
perfection-He willed thereforethe state."13Even though the state
might be founded on a voluntarycompact among men-"which in
many cases it undoubtedlywas," Burkewas willing to admit-the
binding force of the compact neverthelesscame from God because
"if no supremeruler exists,wise to form, and potent to enforce,the
moral law, there is no sanction to any contract, virtual and even
actual, against the will of prevalentpower."14
Therefore, as Fennessy has put it, "the natural foundation of
societyis, for Burke,the given moral relationbetween men, imposed
and sanctioned by the act of creation."15 As he also says, the
phrasesthat Burke uses in the Reflectionsl6 to indicate the origin
of the social bond, "'The great contract of eternal society,' the
'fixed compact,'the 'inviolableoath,' all refer,not to any pact made
between men, but to the act of creation, which determines the
nature of all things, which holds all things in their appointedplace,
and fixes the relationbetween them."17
Now, Burke'sideological opponents also acknowledgedNature
and Nature's God. "Both he and they," in MacCunn's words,
"believethat, behind the strugglesand the flux of politics,there is an
objectiveorderwhich (to revertonce more to Burke'swords) holds
all things fast in their place, and that to this objective order men
and nations are bound to adapt themselves."18But for Burke'sop-
ponentsthe objectivemoral orderwas the foundationof the natural
and imprescriptiblerights of men and therefore of the untram-
meled sovereigntyof the people. Burke'stask was to show that, on
the contrary,the moral orderwas the source of political obligations
that bound even the people.
To this task he addressedhimself with his most closelyreasoned
argument in An Appeal fromnthe New to the Old Whigs.19 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
13 Reflections, Works, V, 186.
14
Appeal, Works, VI, 205.
15
Fennessy, 110.
16 Works,V, 184.
17
Fennessy, 114.
18 MacCunn, 144.
19 Works, VI, 204-207. The quotations that follow, until the next foot-
note reference, are from this passage.
 BURKE ON PRESCRIPTION 459

voluntarily,but the most basic ones are not; and even voluntarily
assumedduties do not for that reasonfail to be obligations.
"We have obligationsto mankindat large,"says Burke, "which
are not in consequenceof any special voluntary pact. They arise
from the relationof man to man, and the relationsof man to God,
which relationsare not mattersof choice." They are consequences
of God having created men as human beings whose very nature
entails morallybinding relationships.The most basic moral obliga-
tions thus rest upon the metaphysicsof a created universe and are
the sourceof all subsequentand subordinateobligations: "the force
of all the pacts which we enter into with any particularperson or
number of persons amongst mankind, depends upon those prior
obligations."
The pacts to which Burke refers are relations among persons
establishedby consent. But other derived and subordinaterelations
are involuntary, yet nonethelessgive rise to "compulsive"duties.
For example:

When we marry,the choice is voluntary,but the duties are not

mattersof choice. They are dictated by the nature of the situ-
ation.... Parentsmay not be consentingto their moral relation
[to theirchildren];but consentingor not, they are boundto a long
train of burthensomeduties towardsthose with whom they have
nevermade a conventionof any sort. Childrenare not consenting
to their relation[to their parents],but their relation,withouttheir
actual consent,binds them to its duties;or rather,it impliestheir
consent,becausethe presumedconsentof every rationalcreature
is in unisonwith the predisposedorderof things.

Two fundamental principles are laid down in this passage.

First, that a relationshipmay be establishedby consent,as marriage
is, yet once establishedit creates obligationsthat are independent
of and superiorto consent. Second, that a relationshipestablished
without consent, like that of a child (who did not ask to be con-
ceived) toward his parents,neverthelesscreates obligations. What
is more, the obligationsnot only bind the child without his prior
consent, they commandhis consent because "the presumedconsent
of every rational creatureis in unison with the predisposedorder of
things." The child is obliged by his nature as a rational creatureto
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 reachesthe age of reason,but in the mean-
460 THE REVIEW OF POLITICS

time it is legitimatelypresumedbecause it is obligatoryand cannot

morallybe refused.
In Burke'smoral universe,therefore,obligationis antecedentto
consent and compels consent. We must consent, rationally and
freely, to the morallyobligatoryrelationshipsthat are knit into "the
predisposedorder of things." This order of things is, in its most
fundamentalmeaning, the frame of the world and, specifically,of
the human world as created by God. Derivatively,it is the con-
tingent part of that human world into which a man is born.
To illustratethis last point, one may remarkthat there is nothing
in the nature of man as man that requiresthat a particularfamily
should exist at a given time and place and in a given social situation.
The particularfamily, therefore,is a contingent reality. Nonethe-
less, 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 have their place in
society, with its duties as well as its rights. "Men come . . . into a
communitywith the social state of their parents, endowed with all
the benefits,loaded with all the duties of their situation." This situ-
ation 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 consentis mandatory.
If, in this manner, we are "loaded with all the duties" of our
family'ssituation, "so without any stipulationon our own part, are
we bound by that relationcalled our country." For, "[o]urcountry
is not a thing of mere physical locality. It consists, in a great
measure,in the ancient 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."
It is immaterial, therefore, that "civil society might be at first
a voluntary act." Even if it was, what counts is that "its continu-
ance is under a permanent standing covenant, coexisting with the
society; and it attaches upon every individual of that society, with-
out any formal act of his own." The generations 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 and political obligations. As
Fennessy says, for Burke "it was not consent that made the social
 BURKE ON PRESCRIPTION 461

bond, but a createdsocial bond that demanded the consent of free

and rational creatures."20The underlying premise was that man
is by nature rational and, because rational, social and political. In
saying that the Creatorwilled the state as the necessarymeans to
human nature'sfull developmentand perfection,Burkemeant that
God willed the historicallyevolved social and political order.
The particularform that the state took depended on "the cir-
cumstancesand habitsof every country."21But once the state, with
its particular and historically conditioned form, had come into
existence, it was "but a clause in the great primaeval contract of
eternalsociety,linkingthe lower with the highernatures,connecting
the visible and invisible world, accordingto a fixed compact sanc-
tioned by the inviolableoath which holds all physicaland all moral
natures, each in their appointed place."22 The constitutionof a
state, in other words, became a contingentpart of the moral order
and was endowed with the binding force of the universal,divinely
willed moral law.
One may feel here that Burkeis engaging in intellectualsleight
of hand. What justifiesthis slide from the universalmoral order,in
all its majesty and perfection, tol 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'sview, is that they are of
one piece.
While it is meaningful to say that God wills the state because
man's rationalnature requirescivil society, civil society cannot exist
as such. If civil society implies moral obligations,those obligations
can take concreteform and become actually binding only in a par-
ticular state under a particular constitution. "Constitutions,"as
Burke once put it, "furnish the civil means of getting at the
natural."23 Or, as he said in praiseof the Britishconstitution,"The
foundation of governmentis there laid, not in imaginaryrights 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."24In the createduniverse,the necessaryis realized
in the contingent,the universalin the particular,the natural in the
conventional. The distinctionsamong these are valid, but in actual
20
Fennessy, 114.
21 Appeal, Works, VI, 133.
22
Reflections, Works, V, 184.
23
Fourth Letter on a Regicide Peace (1796), Works, IX, 112.
24
Appeal, Works, VI, 257.
462 THE REVIEW OF POLITICS

existencethey are all of one piece. The universalmoral orderis the

order of a real, historicallyexistingworld.
Burke thus speaks the language of the social contract theory,
but with a difference. He begins his most oft-quotedpassageon the
roots of political obligation with the words, "Society is indeed a
contract."25 Yet in Burke'shands the implicationsof the contract
undergo a profound change. In his theory of the social contract,
Burkeshiftsthe emphasisfrom consentto obligationand from rights
to purposes. With Burke, the inquiry into the source of political
obligation no longer begins with men's prepoliticalrights in a state
of nature, but with the purposesof civil society. The "realrights of
men," says Burke, are not the abstractoriginal rights of men, but
the benefits that civil society can and should confer on them. "If
civil society be made for the advantage of man, all the advantages
for which it is made become his right. It is an institutionof benef-
icence."26 The "advantagesfor which it is made" are the goals or
purposesof civil society,rooted ultimatelyin the nature of man and
in the creative act of God. These goals are not only men's rights
but are also the source of their obligationsin civil society. As Burke
explainedin An Appeal,
Men withoutchoice derivebenefitsfrom that association;without
their choice they are subjectedto duties in consequenceof these
benefits;and withouttheir choice they enter into a virtualobliga-
tion as bindingas any that is actual. Look throughthe whole of
life and the whole system of duties. Much the strongestmoral
obligationsare suchas were neverthe resultsof our option.27
To say this is not to deny that men have rightsor even that these
rightsare in a valid sense natural. But it is to deny that the author-
ity of civil society derives from the consent of men who were by
nature independentof any civil bond and who thereforeretain the
natural right to make and unmake the civil bond at pleasure. The
structureof authorityand the form of governmentare framed, not
in the light of the originalindependenceand equalityof men in the
state of nature, but with a view to the benefitswhich civil society
exists to confer upon them. "Governmentis not made in virtue of
natural rights, which may and do exist in total independence of
it.... Governmentis a contrivanceof human wisdomto providefor
25
Reflections, Works,V, 183.
28 Ibid., 120.
27
Works, VI, 205.
 BURKE ON PRESCRIPTION 463

human wants. Men have a right that these wants should be

providedfor by this wisdom."28
The constitutionof civil society is determinedby human needs,
not by original natural rights. Consequently,"the whole organiza-
tion of government becomes a consideration of convenience,"29
that is, of aptitudefor satisfyingthose needs. A properlymade con-
stitutionis one that placespower in the hands of those who have the
requisitewisdom and virtue to providefor men's genuine needs. It
is the ends of civil society, not its origins,that shape its constitution.
The ends of civil society may be subsumedunder one general
goal: the good of the people. This goal is the only one that gov-
ernment may legitimatelyintend: "all political power which is set
over men . . . being wholly artificial,and for so much a derogation
from the naturalequalityof mankindat large, ought to be some way
or other exercisedultimatelyfor their benefit."30 End or purpose,
however, is a coin the obverse side of which is result or effect.
Political power is not justifiedby the ends it merely intends, but by
those it actually achieves. The good of its membersis the purpose
of civil society, but the purpose is morally inadequate unless it
becomes an accomplishedresult.
"The practical consequencesof any political tenet go a great
way in deciding upon its value," Burkesaid. "What in the resultis
likely to produceevil, is politicallyfalse: that which is productiveof
good, politicallytrue."31 It was on this basis that he passed judg-
ment on the French Revolution: "I cannot think that what is done
in France is beneficialto the human race." But, he admitted, "If
it were, the English constitutionought no more to stand against it
than the ancient constitution of the kingdom in which the new
system prevails."32He used the same criterionfor old institutions,
but all the more easily because their results were already visible.
"Old establishmentsare 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."33 It
follows that that constitutionhas a claim to men's obediencewhich

28 Reflections,
Works, V, 122-123.
29 Ibid., 123.
30
Speech on the East India Bill (1783), Works, IV, 11. Cf. ibid., 9-10.
31 Appeal, Works,
VI, 210.
32 Heads
for Considerationon the Present State of Affairs (1792), Works,
VII, 114.
33 Reflections, Works, V, 310.
464 THE REVIEW OF POLITICS

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. Burke did not mean by prescription of
government-despite what he seemed at times to say-that govern-
ment 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. In that speech, as we have seen above, he was
answering an argument for every man's right to vote for members
of the House of Commons based on the premises "that every man
ought to govern himself, and that where he cannot go himself he
must send his Representative."
Reflect, said Burke, on what is implied in "this claim of right,
founded on the right of self-government in each individual." It will
not be enough to grant the people "personal representation" in the
House of Commons. That House, after all, is only one part of the
constitution and the question can still be asked: "How came they
neither to have the choice of Kings, or Lords, or Judges, or Gen-
erals, or Admirals, or Bishops, or Priests, or Ministers, or Justices of
Peace?"34 When that question is raised, Burke asked,

what have you to answer in favour of the prior rights of the Crown
and Peerage but this-our Constitution is a prescriptive Constitu-
tion; it is a Constitution, whose sole authority is, that it has existed
time out of mind .... Your King, your Lords, your Judges, your
Juries, grand and little, all are prescriptive.... Prescriptionis the
most solid of all titles, not only to property, but, which is to secure
that property, to Government.35

Burke has been understood as saying here that the only authority
a constitution needs, and the sufficient guarantee of its goodness, is
that it has existed from time immemorial.36 He is more accurately
understood, however, as asserting that this is a sufficient answer to
34 Works, X, 95.
35 Works, X, 96.
36 Leo
Strauss, Natural Right and History (Chicago, 1953), p. 319.
Paul Lucas says that Burke "believed that prescription possessed an immanent
justification," and that in his mind "time alone became the material and effi-
cient cause of prescription" (Lucas, 40, 62).
 BURKE ON PRESCRIPTION 465

the natural-rightargument for personal representation. The long

duration of the constitution, to use Burleigh Wilkins' term, is a
"stopper";it puts an end "to inquiryand discussionin that context
but not in all contexts"37
What Burke was getting at may be gleaned from a speech he
wrote for deliveryin the Commonsin 1792, where he said:

The foundations,on which obedienceto governmentis founded,

are not to be constantlydiscussed.That we are here, supposesthe
discussionalreadymade and the disputesettled. We must assume
the rightsof what representsthe publicto controulthe individual,
to make his will and his acts to submit to their will, until some
intolerablegrievanceshall make us know that it does not answer
its end, and will submitneitherto reformationnor restraint.38

That the constitutionhas existed time out of mind is not in itself

the foundationof political authority. Rather, it is a sufficientproof
that the nation has already decided where political authorityis to
be lodged. This decisionis not to be reopenedwith every new gen-
eration,but must be taken as right and binding until an intolerable
and irremediablegrievanceshows the opposite.
The length of time that the constitutionhas lasted does not, by
itself alone, found a claim to men's political obedience, but it does
stop the argumentthat the constitutionand the governmentestab-
lished under it are illegitimatebecause they have not been chosen
by the presentgenerationand thus violate "the right of self-govern-
ment in each individual." As Burke was to maintain later, in the
Reflections,it was preciselythat right that the individualgave up on
entering civil society, from which point on "the whole organization
of government becomes a considerationof convenience."39 The
assertionof a long since abandoned and now nonexistent right is
more than adequatelymet by pointing to the presentand long since
establishedconstitution.
Burkedid indeed maintain that there is no standardantecedent
or superiorto the constitutionto which one can appeal in order to
force a change in the distributionof power and representationnow
establishedby the constitution. Yet this does not deny the subordi-
nation of the constitutionto natural law. Indeed, as Burkeargued
37 Burleigh Wilkins, The Problem of Burke's Political Philosophy (Oxford,
1967), p. 244.
38 Works,
X, 51.
39 Works, V, 122-123.
466 THE REVIEW OF POLITICS

in other contexts,both the obligationto accept the constitutionand

the right to overthrowit in the case of justifiedrebellionderivefrom
natural law. All that he wanted to show in the Speech on the
Reform of the Representationis that one cannot deduce the prin-
ciple of personalrepresentationfrom natural law.
But the establishedconstitution,however long it has endured,
cannot be its own self-sufficientnorm of goodness. Burke'sposition
on this point is indicated by his answerto WarrenHastings during
the latter's impeachmentas the East India Company'sGovernor-
General in India. Hastings had argued that when the company
acquired sovereigntyover Indian states, it had accepted despotic
and arbitrarypower which he, Hastings,exercisedin its name. For
such was the traditional constitutionof Asia and such, given the
conditions of Asiatic society, was the only way in which Asiatics
could be ruled.
If a prescriptiveconstitutionwere establishedby mere passage
of time, Hastings'argumentwould be conclusive,at least for Burke.
But Burkerepliedthat neitherthe Companynor the Britishgovern-
ment could have acquiredor given arbitrarypower "becausearbi-
trarypoweris a thing, which neitherany man can hold nor any man
can give." All poweris from God and

is bound by the eternallaws of Him, that gave it, with which no

humanauthoritycan dispense;... The title of conquestmakesno
differenceat all. No conquestcan give such a right; for conquest,
that is force, cannot convertits own injusticeinto a just title by
which it may rule othersat its pleasure.40

As for despotism,

if it meansany thing, that is at all defensible,[it] meansa mode of

government,bound by no written rules, and coercedby no con-
trollingmagistracies,or well settledordersin the state. But if it has
no written law, it neither does, nor can, cancel the primeval,in-
defeasible,unalterablelaw of nature, and of nations; and if no
magistraciescontrolits exertions,those exertionsmust derivetheir
limitationand directioneitherfrom the equityand moderationof
the ruler,or from downrightrevolt on the part of the subjectby
rebellion,divestedof all its criminalqualities.41
In accepting governmental powers from the Mogul Empire,
40
Speech at the Hastings Trial (1788), Works, XIII, 165-166.
41 Works,XIII, 169-170.
 BURKE ON PRESCRIPTION 467

said Burke,the East India Companyaccepted the responsibility"to

observethe laws, rights, usages, and customsof the natives; and to
pursuetheir benefit in all things. For this duty was inherentin the
nature,institution,and purposeof the officewhich they received."42
The authorityof governmentthus turns out once more to depend
on its fulfillmentof its naturalpurposes,and no prescriptionderived
from mere duration will suffice to justify a governmentthat frus-
tratesthose purposes. If we return to the Speech on the Reform of
the Representation,we find that this was Burke'spositionthere also.
Having said that the sole authority of the constitutionwas its ex-
istence time out of mind, he continued:

It is true, that to say your Constitutionis what it has been, is not

sufficientdefencefor those, who say it is a bad Constitution....
To those,who say it is a bad one, I answer,look to its effects. In
all moralmachinery,the moralresultsare its test.43

But to make the moral resultsthe test is to justify the existing

system of representationby its contributionto the welfare of the
people. "If you reject personal representation,"said Burke, "you
are pushed upon expedience; . . .Then what is the standard of
expedience? Expedienceis that, which is good for the community,
and good for every individual in it."44 If this is the standard,then
the issue becomes one between those who promisefuture and spec-
ulative benefits from reforming the representationin Parliament
and those who, like Burke, found the existing structure fully
adequate to all the purposes that a representativesystem should
serve.45 What these reformers"wish us to do," Burke declared,
"is, to prefer their speculationson that subject to the happy ex-
perienceof this Countryof a growinglibertyand a growingprosper-
ity for five hundred years.... I will not take their promiserather
than the performanceof the Constitution."46
The prescriptiveconstitution,then, is the constitutionthat has
proved itself not only by long but by good performance,and the
good performance is more decisive than the long. As Gerald
Chapman says, prescription"makesthe point that in all the depth
of existence, past and present,there is no ground and sanction for
42
Works, XIII, 24.
43 Works, X, 99.
44 Works,
X, 100.
45
Works,X, 101-102. Cf. Reflections, Works,V, 116.
46
Works, X, 100-101.
468 THE REVIEW OF POLITICS

any constitution or state except as by a prescriptive use it is found

to be good."47
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 legiti-
mate, 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.48

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 latter, "It is a recent
wrong, and can plead no prescription."49 But, he admitted, a
revolution could be justified by "those principles of cogent ex-
pediency [the good of the community and of every individual in
it] to which all just governments owe their birth, and on which they
justify their continuance."
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
conformity to the principles of cogent expediency, that is, their
service to the people whom they govern. That 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 constitu-
tion was originally conceived in justice. Rather, prescription rules

47 Gerald Chapman, Edmund Burke: The Practical

Imagination (Cam-
bridge, Mass., 1967), p. 166.
48
Reflections, Works, V, 298.
49 First Letter on a Regicide Peace (1796), Works,
VIII, 190.
 BURKE ON PRESCRIPTION 469

out these questions as irrelevant to the only point that is now at

issue: is the existing constitution legitimate and does the government
established under it have the right to rule? The doctrine of prescrip-
tion answers that question with a qualified affirmative.
Prescription does not mean that old institutions of government
must be preserved merely because they are old, 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."50 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 protec-
tion."51
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 Parlia-
ment 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 ex-
amines into the defects of his title to his paternal estate, or to his
established government.52

But Burke could contemplate a change in the prescriptive constitu-

tion, 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
50 Works, III, 278.
51 Works,III, 246.
52
Works, III, 177.
470 THE REVIEW OF POLITICS

pressingas any, which ever demandeda revisionof our Govern-

ment. Publicktroubleshave often calledupon this Countryto look
into its Constitution.It has ever been betteredby such a revision.
If our happyand luxuriantincreaseof dominion,and our diffused
population,have outgrownthe limits of a Constitutionmade for
a contractedobject,we ought to bless God, who has furnishedus
with this noble occasionfor displayingour skill and beneficencein
enlargingthe scaleof rationalhappiness,and of makingthe politick
generosityof this Kingdomas extensiveas its fortune.53
Even the French Revolution, while it certainly strengthened
Burke'sdevotionto the traditionalorder 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 from
the New to the Old Whigs, "is the result of the thoughts of many
minds, in many ages." Let us, then, he urged,
follow our ancestors,men not without a rational,though without
an exclusiveconfidencein themselves;who, by respectingthe reason
of others,who, by looking backwardas well as forward,by the
modestyas well as by the energyof theirminds,went on, insensibly
drawing this constitutionnearer and nearer to its perfectionby
never departingfrom its fundamentalprinciples,nor introducing
any amendmentwhich had not a subsistingroot in the laws, con-
stitution,and usagesof the kingdom.54

The prescriptiveconstitutiondoes not rule out change; indeed,

its developmentand even its survival depend on change.55 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 predisposedorder 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 prescriptiveconstitutionmay undergo, provided
that the direction of change continues to be set by the controlling
end, the good of the people. But the changesmust be gradual and
evolutionary, "insensibly drawing [the] constitution nearer and
nearer to its perfection by never departing from its fundamental
principles."
Finally, prescriptiondoes not mean that authority cannot be
53 Works, IX, 212.
4 Works,VI, 261, 265.
65 See, Letter to Sir Hercules Langrishe (1792), Works, VI, 369.
 BURKE ON PRESCRIPTION 471

lost by abuse. For example, Burkeurged taking political power in

India away from the East India Company on a general principle
that would apply against any government, however ancient, that
it had become inimical to the purposes of all just governments,
namely,
that this body, being totally pervertedfrom the purpose of its
institution,is utterlyincorrigible;and becausethey are incorrigible,
both in conductand constitution,power ought to be taken out of
their hands;just on the same principleson which have been made
all the just changesand revolutionsof governmentthat have taken
place since the beginningof the world.56
What the doctrine of prescriptionreally means, therefore, is
that the abuse of political authority is the only moral ground on
which it can be lost. That the constitutionof a state originatedin
wrong, or that it contains no mechanismfor registeringthe formal
consentof a majorityof the presentgeneration,is irrelevant. These
are "speculative,"not "real" grievancesin Burke'seyes, and they
do not suffice to justify the refusal of political obedience.
Yet to assert that prescriptiveauthority can be lost only by
abuse is not to deny that all just governmentsdepend on the con-
sent of the governed. Burke, at any rate, thought that the two
propositionswere reconcilable. In his earlytreatise,A Tract relative
to the Laws againstPopery in Ireland, he expoundeda thesiswhich
is consistentwith 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 ele-
mentaryhuman rights, Burkeremarked: "A Law against the ma-
jority of the people is in substancea Law against the people itself:
its extent determines its invalidity."57 In other words, "a Law
directedagainst the mass of the Nation" simply lacks the authority
of law. The reasonthat Burkegives for this principleis significant.
It is that

in all forms of Governmentthe people is the true legislator;and

whetherthe immediateand instrumentalcause of the Law be a
single person,or many, the remote and efficientcause is the con-
56 Speech on the East India Bill, Works, VI, 111.
67 This and the following passages, until the next footnote reference, are
taken from Works, IX, 347-350.
472 THE REVIEW OF POLITICS

sent of the people, either actual or implied; and such consent is

absolutely essential to its validity.

This conception of the people as the ultimate authors of all

law is as compatible with monarchy or aristocracy as with democ-
racy. 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." 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 explained:

The people, indeed, are presumed to consent to whatever the Legis-

lature 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 neces-
sity of government has made superiour to their own.

The necessity of government (founded, as we have seen, 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."
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 aban-
doned.
It is consistent, for example, 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
 BURKE ON PRESCRIPTION 473

arrangementby actual election."58 It is consistentwith his state-

ment in the Reflections: "There is no qualificationfor government
but virtue and wisdom, actual or presumptive."59And it leads
into his argument, in An Appeal, that the upper classes enjoy a
legitimate presumptionin favor of their wisdom and virtue. He
there maintains that the state of civil society, which is man's truly
natural state, necessarilygeneratesa class structurewhich 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
governingpart." To deprive them of this part, in the name of the
political equality of all citizens is "a horribleusurpation."60
All government, for Burke, is a trust to be exercised for the
benefit of the people by those who are qualifiedfor the task by wis-
dom and virtue. That a nation has long existed and flourished
under a constitutionis 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 presumedbecause the natural law requirestheir con-
sent to a good government. Prescriptionof governmentis a part
of the law of nature.
Burke'sconception of the natural aristocracyis 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
representativesystem in Great Britain is simply out of date today.
So, too, is his interpretationof the Britishconstitutionas a contract
to which king, lords, and commons are parties. But his doctrine
of prescription,though used to justify those governmentalarrange-
ments, has a significancethat transcendsthem 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 dis-
appeared from formal political thought by now. Yet the assump-
tions of liberal individualismwhich that myth embodied remain as

58 Speech on the
Reform of the Representation, Works, X, 96.
59 Works, V, 106.
60
Works, VI, 217-219.
474 THE REVIEW OF POLITICS

the premisesof much of contemporarypolitical discourse,as will

be evident to anyone who listens carefully to the terms in which
people argue about such disparateissuesas school busing, the legal-
ization of abortion and participationin the governance of institu-
tions. The controversyis carried on largely in terms of individual
rights, and it is a controversybecause it involves conflicting inter-
pretationsof the individual, his legitimate claims and the need of
his consent. To those who find individualisman inadequate basis
for explaining either the facts or the obligations of political life,
Burke'sdoctrine of prescriptionoffers an alternativethat could be
developed in a contemporarypolitical theory. Without attempting
such a development here, one may suggest that its central theme
would be the priorityof purposeto consentas the sourceof political
obligation.