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II. On Edmund Burke's Doctrine of Prescription; or, An Appeal from the New to the Old Lawyers1

Published online by Cambridge University Press:  11 February 2009

Paul Lucas
Paul Lucas
Affiliation:
Washington University, St Louis
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Extract

Until about fifteen years ago, most modern scholars saw Edmund Burke's thought largely as a reaction to the philosophical and political rationalism of his time: to them, although Burke was reactive, his revolt was original. When scholars did seek the historical ‘origin’ of his thought, it was generally found in Whiggery and that convenient catch-all ‘the’ British tradition of empiricist philosophizing. Of late, two groups of scholars have sought and found other ‘origins’: the first group, larger and perhaps better-known, finds Burke's thought to be rooted in the principles of ‘the’ natural law and, perhaps, also in the dictates of scholastic prudence; the other group, tiny and less well known, finds in Burke's traditionalism a partial continuation of the traditional way of thinking of seventeenth-century common lawyers. One consequence of undertaking this disinterment of Burke's ‘origins’ has been the burial of Burke's originality.

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The Historical Journal , Volume 11 , Issue 1 , March 1968 , pp. 35 - 63
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Copyright © Cambridge University Press 1968

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References

2 See the introductory remarks of Hoffman, Ross J. S. and Levack, Paul, ed., Burke's Politics (New York, 1949);Google ScholarKirk, Russell, The Conservative Mind (Chicago, 1953);Google ScholarKirk, ‘Burke and Natural Rights’, Review of Politics, XIII (1951), 441–56;Google ScholarKirk, , ‘Burke and the Philosophy of Prescription’, Journal of the History of Ideas, XIV (1953), 365–80;CrossRefGoogle ScholarParkin, Charles, The Moral Basis of Burke's Political Thought (Cambridge, 1956);Google ScholarStanlis, Peter J., Edmund Burke and the Natural Law (Ann Arbor, Michigan, 1958);Google ScholarFather, Francis P.Canavan, S. J, The Political Reason of Edmund Burke (Durham, North Carolina, 1960);Google ScholarWeston, John C. Jr., ‘Edmund Burke's View of History’, Review of Politics, XXIII (1961), 203–29;CrossRefGoogle ScholarFennessy, R. R., o.f.m., Burke, Paine and the Rights of Man (The Hague, 1963), pp. 117,CrossRefGoogle Scholar 130 ff. Although it is a more hedged and seemingly subtle work, Burleigh Taylor Wilkins' The Problem of Burke's Political Philosophy (Oxford, 1967) also belongs squarely within this group.Google Scholar

3 Pocock, J. G. A., The Ancient Constitution and the Feudal Law (Cambridge, 1957);Google Scholaridem., ‘Burke and the Ancient Constitution’, The Historical Journal, III (1960), 125–43;Google Scholaridem.‘The Origins of the Study of the Past’, Comparative Studies in Society and History, IV (1962), 236–7;Google ScholarSchell, Gisella, Englisches Rechtsdenken im Werk Edmund Burkes (Frankfort a.M., 1955);Google ScholarCourtney, C.P., Montesquieu and Burke (Oxford, 1963), pp. 25, 145, 162, 166, 181, 182 – 3.Google Scholar

4 Novalis (F. L. von Hardenberg), Blüthenstaub, no. 113, in Werke, ed. E. Wasmuth (4 vols. Heidelberg, 1953–4), I, 340: ‘Es sind viele antirevolutionäre Bücher für die Revolution geschrieben worden. Burke hat aber ein revolutionäres Buch gegen die Revolution geschrieben.'

5 Davidson, James F., ‘Natural Law and International Law in Edmund Burke’, Review of Politics, XXI (1959), 483–94.CrossRefGoogle Scholar Regarding prudence and a respect for circumstances, Ernest Barker called Burke an unconscious Thomist: Essays on Government (Oxford, 1945), p. 222.Google Scholar Ewart Lewis also noted a Thomistic quality to Burke's attention to circumstances: ‘Natural Law and Expediency in Medieval Political Theory’, Ethics, L (1940), 153. Cf. Father Canavan on Burke and prudence. Criticism of both Stanlis's Thomistic interpretation of Burke and of his—shall we say—neo-Thomistic interpretation of St Thomas and the history of natural law may be found in reviews by Sigmund, Paul E. Jr, and Montrose, J. L., Natural Law Forum, IV (1959), 166–74; VI (1961), 201–25, especially pp. 213, 216–17Google Scholar

6 See footnote 2. To this list may be added Leo Strauss's Natural Right and History (Chicago, 1953).Google Scholar Strauss is one of the sources of the new Burkeans' conception of the character and history of the natural law tradition, but he finds himself unable to place Burke squarely within that tradition. Louis Bredvold's The Brave New World of the Enlightenment (Ann Arbor, 1961)Google Scholar and the works of some of the new Burkeans also owe much to Heinrich Rommen's, A.conception of The Natural Law, trans. Hanley, T. R. (St Louis, 1947).Google Scholar

7 Ernst Troeltsch, The Social Teaching of the Christian Churches, trans. Wyon, Olive (2 vols. London, 1956).Google ScholarHaag, Erich, Die Entwicklung der neueren Katolischen Naturrechtslehre (Zurich, 1962), pp. 91, 133–5, and passim.Google Scholar

8 Becker, Carl, The Heavenly City of the Eighteenth Century Philosophers (New Haven, 1932).Google ScholarGierke, Otto, Political Theories of the Middle Ages, trans. Maitland, F. W. (Boston, 1958), pp. 81–3.Google ScholarLagarde, Georges de, La naissance de l'esprit laïque (2nd ed. 6 vols. Paris, 1948–n.d.Google Scholar

9 Burke's position on the relationship between prescription and the natural law is epitomized in his Works, vi, 412. An indication of the extent of the controversy over prescription and a convenient bibliography of the literature is to be found in von Ompteda, D. H. L. and Kamptz, C. A. von, Litteratur des gesammten sowohl naturlichen als positiven Völkerechts (Regensburg, 1785)Google Scholar and in the supplement (Berlin, 1817) under the heading Völkerverjährung'. Some indication of the nature of the arguments and of the justifications for prescription are to be found in Verykios, P. A., La prescription en droit international public (Paris, 1934), pp. 3–36.Google Scholar

10 A full discussion of just title and good faith in classical Roman law is in the thesis of Jules Faure, Justa cause et bonne foi (Lausanne, 1936).Google ScholarSee, too, Berger, Adolf, Encyclopedic Dictionary of Roman Law (Philadelphia, 1953), p. 645;Google ScholarBuckland, W. W., A Manual of Roman Private Law (2nd ed.Cambridge, 1952), pp. 115Google Scholar, 118, 126–7, 129–33, 135–6, and, regarding usufruct and prescription, cf. pp. 147, 163; Buckland, W. W. and McNair, A. D., Roman Law and Common Law, ed. Lawson, F. H. (2nd ed.Cambridge, 1952), pp. 63,CrossRefGoogle Scholar 69, 120, 133. On the significance in Roman law of good faith in prescription, see Collinet, Paul, ‘Iusta Causa et Bona Fides dans l'usucapion d'après les Institutes de Gaius’, in Mélanges Paid Foumier (Paris, 1929), pp. 71–85;Google ScholarDénoyez, Joseph, ‘La bonne foi dans l'usucapion en droit romain’, in Aequitas et Bona Fides: Festgabe zum 70. Geburstag von August Simonius (Basel, 1955), pp. 41–52;Google ScholarImbert, Jean, ‘De la sociologie au droit: la “Fides” romaine', in Mélanges Henri Lévy-Bruhl (Paris, 1959), pp. 407–15.Google Scholar

11 Burke recognized the necessity of bona fide possession for prescription in his speech on the Church Nullum Tempus Bill: see Burke, Edmund, Works (12 vols. Boston, 1899), vil, 139–41.Google ScholarThe other quotations are to be found in Edmund Burke, Correspondence, ed. William, Charles, Fitzwilliam, Earl and Bourke, Sir Richard (4 vols. London, 1844),Google Scholar III, 145; Burke, Works, vi, 406; Burke, Reflections on the Revolution in France, ed. Todd, William B. (New York, 1959), 203, 37–8.Google Scholar

12 See Barth, Hans, The Idea of Order (Dordrecht, 1960), pp. 2–3.CrossRefGoogle Scholar Only in the nineteenth century did prescription become a mere, general recognition of a fact: see the references cited in Verykios, Prescription, pp. 30–1.

13 Burke, Edmund, Speeches (4 vols. London, 1816), IV, 366.Google Scholar

14 Francisco Suarez, De legibus, Bk. n, ch. 18, sect. 6, and Bk. vn, ch. i, sect. 12, in Selections from Three Works, trans. Williams, Gwladys L. et al. (Oxford, 1944);Google ScholarMuriel, Domingo, Rudimenta juris naturae et gentium libri duo (Venice, 1791), p. 147.Google Scholar (Burke refers to Suarez in his own Tract on the Popery Laws, c. 1765, in Burke, Works, VI, 325.) Aquinas, St Thomas, Summa Theologiae, (4 vols. Rome, 1952–56),Google Scholar part III, supplementum, quaest. 55, art. 9, ad secundum. See, also, Thomas's Commentum in quaticor libros sententiarum Magistri Petri Lombardi (Parma, 1858),Google Scholar Bk. iv, Dist. 41, art. 5, quaest. 1, ad secundum; and Quaestiones Quodlibetales, Quodlibetum duodecimum, quaest. xvi, art. xxiv–v, in Quaestiones Disputatae, (5 vols. Turin, 1927), v, 240–1,Google Scholar for his preference for prescription in good faith despite provisions to the contrary in civil law. On the prerequisite of good faith and just title for prescription according to the canon law since 1215, and on the close connexion between good faith and conscience, and between bad faith and sin, see Corpus Juris Canonici (Lugduni, 1606)Google Scholar at the several places referred to in the index of commonplaces, s.v. ‘usucapione;’ Hostiensis, Summa aurea (Lugduni, 1568),Google Scholar tit. xxvi; Ernricus Pirhing, Jus Canonicum (5 vols. in 4, Dilingae, 1722);Google ScholarDictionnaire de Trévoux, new ed.(8 vols. Paris, 1771),Google Scholar s.v. ‘prescription’ and ‘prescrire’; Dictionnaire de Théologie Catholique (Paris, 1936), XIII, 122–31;Google ScholarMartin, Thomas O., Adverse Possession, Prescription and Limitation of Actions. The Canonical “Praescriptio.” A Commentary on Canon 1508 (Washington, D.C., 1944),Google Scholar chs. in, iv; Dictionnaire de droit canonique, s.v. ‘prescription’, fasc. 37 (Paris, 1958),Google Scholar col. 194; Naz, Raoul (ed.), Traité de droit canonique (2nd ed.Paris, 1955), pp. 237–40.Google ScholarThomasius, Christian, Institutionumjurisprudentiae divinae libri tres (Halle, 1717),Google Scholar Bk. 11, ch. 10, sect. 201. Pufendorf, Samuel, De jure naturae et gentium, trans. C. H., and Oldfather, W. A. (Oxford, 1931),Google Scholar Bk. iv, ch. 12, sect. 2, 3, 5, 7; Elementorum jurisprudentiae universalis libri duo, trans. Oldfather, W. A. (Oxford, 1931),Google Scholar Bk. 1, Def. v, sect. 24; De officio hominis et civis juxta legem naturalem, trans. Moore, Frank Gardiner (New York, 1927),Google Scholar Bk. n, ch. 12, sect. 15; ch. 13, sect. 2, 7. Heineccius, J. G., A Methodical System of Universal Law, trans. Turnbull, George (2 vols. London, 1741),Google Scholar 1, 248. Vattel, Emmerich de, Questions de droit naturel (Berne, 1762), pp. 126, 128–9.Google ScholarWolff, Christian, Jus gentium methodo scientifica pertractatum, trans. Drake, Joseph H. (Oxford, 1934),Google Scholar chap, in, sect. 361, 363; cf. also sect. 78, 84. In nineteenth-century Germany, even Friedrich Julius Stahl, whose thought resembles Burke's in so many ways, maintains the requirement of good faith and just title in matters of prescription: see sect. 43 of his Philosophie des Rechts (2 vols. Heidelberg, 1854), II, 392.Google ScholarGrotius, Hugo, Dejure belli, trans. Kelsey, F. W. (Oxford, 1925), Bk. II, ch. 4;Google ScholarGrotius, , The Jurisprudence of Holland, trans. Lee, R. W., I (Oxford, 1926),Google Scholar 77. 99 101 103. Good faith is also required by Piermont, F. H. Strube de, Ebauche des loix naturelles et du droit primitif (Amsterdam, 1744), pp. 183, 202–6Google Scholar

15 Burke appealed to Domat in the Reflections (ed. Todd), p. 186. Cf. Stanlis, Burke, p. 65. For Domat's true views, see Domat, Jean, Les loix civiles dans leur ordre naturel, (2 vols. Paris, 1713)Google Scholar or its translation by Strahan, William as The Civil Law in its Natural Order (2 vols. London, 1722),Google Scholar Bk. m, tit. vii. There is indeed a slightly Burkean tone to Domat's general insistence that prescription may extinguish or abate contractual agreements (engagements), which maintain the order of society in all places; there is an equally Burkean tone to Domat's implication that the ideas of inheritance (successions) rank higher than agreements because inheritance perpetuates the order of society in time; but it is evident that Domat's conception of prescriptive right and of its effect upon inheritance differs from Burke's. For a discussion of Domat's doctrine of successions, see Réne-Frédéric Voeltzel, Jean Domat (Paris, 1936), pp. 143–9, 240–55, 269. With respect to prescription, Voeltzel seems to argue (on p. 193) that Domat simply presents a conflict of two immutable and natural laws–the right of property (which is perpetual) versus prolonged possession (which gives title by prescription)–and that arbitrary law is required to resolve the contradiction. But it is obvious that Domat's thought on the subject is more moral, complex, and qualified.Google Scholar

Amongst many of the French natural lawyers, the requirement of good faith for prescription continued on into the eighteenth and nineteenth centuries: see Béat Philippe Vicat, Traité du droit naturel (4 vols. Lausanne and Yverdon, 1777),Google Scholar 11, 55, 58, 59; Diderot, Encyclopedic (Neufchâtel, 1765), xni, 311—13 (which was less rigorous than the Dictionnaire de Trévoux); Jouffroy, Henri, Catéchisme de droit naturel (Leipzig and Paris, 1841), pp. 33, 36;Google Scholar Fortuné Barthélemy de Félice, Leçons de droit de la nature et des gens (2 vols. Paris, 1830), 1, 311–14.Google Scholar

Did other kinds of French lawyers require good faith? When prescription was allowed in anything in France, good faith was generally demanded in theory, and the most common opinion held that good faith was to be required according to the conditions rather of canon than of customary and civil law. See the classic work by Robert Pothier, Ceuvres (5 vols. Paris, 1781),Google Scholar iv, especially 587 ff., 598 ff. See also André Tiraqueau, Tractatus de praescriptionibus (Venice, 1561), Gloss, n, pp. 2–15;Google Scholar Pierre de l'Hommeau, Maximes générates de droict françois (Paris, 1665), pp. 17–19,Google Scholar 98–101; part 2, pp. 55–60, 73–83; Claude Duplessis, Ceuvres ed. Berroyer, and de Laurière, (5th ed.Paris, 1754), pp. 485–523;Google Scholar Claude Serres, Les institutes du droit francais (Paris, 1753), pp. 161–4;Google ScholarArgou, Gabriel, Institutes au droit francais (11th ed. 2 vols. Paris, 1773),Google Scholar I, 151, 152, 187; 11, 296–7, 301–4, 306, 307; Michel Prévot de la Jannès, Les principes de la jurisprudence française (2 vols. Paris, 1780),Google Scholar 11, 389. For some indication of customary law, see Malécot and Blin, Précis de droit feodal et coutumier (Paris, 1876), pp. 149–66;Google ScholarHoüard, D., Dictionnaire de la coutume de Normandie (4 vols. Rouen, 1781),Google Scholar s.v. ‘prescription’. It must be admitted that there was a tendency among some French writers to diminish the number of imprescriptibilities and to abate the normative requirements for prescription that were demanded by the canonists and others who wished scrupulously to avoid the authorization of sin. The fountainhead of this school is to be found perhaps in Bertrand d'Argentré's Commentarii in Britonum Leges (Paris, 1661),Google Scholar tit. 15. Amongst D'Argentre's followers in the eighteenth century were Augustin Marie Poullain du Pare, Principes de droit franfais suivant les maximes de Bretagne (12 vols. Rennes, 1767–71),Google Scholar II, 75, 89; in, 159; vi, 234 ff., and F. I. Dunod de Charnage, Traité des prescriptions (Paris, 1765),Google Scholar part I, ch. 8. This tendency to separate legal from natural obligation, to emphasize social order rather than moral rules and thus permit prescription in less than ‘positive good faith’ or in downright bad faith, eventually became the ‘better opinion’ and was so reflected in the Code civil, whose authors were careful to distinguish the conscionability from the legality and social utility of prescription (P.-A. Fenet, Receuil complet des travaux préparatoires du Code civil, 15 vols. Paris, 1827, xv, 573 ff., 603 ff.). Although good faith was still required for some prescriptions, Raymond Théodore Troplong's exposition of the Civil Code's provisions on Prescription (2 vols. Paris, 1835),Google Scholar was closer to Burke's view of the matter, as were many writers' opinions in the nineteenth century. Adolphe Thiers, for example, echoed the sentiments of Linguet and Burke and went beyond them: long possession was not only a presumption of title, but also a ‘presumption of work’, which argument was obviously meant to impress ‘socialists’ in 1848 (De la propriété, Paris, 1848, pp. 103,Google Scholar 106, 108–9). A certain anachronistic bias was then established in France, and, when coupled with a positivistic emphasis on practice or a nationalistic pride or a republican anti-clericalism, this other tendency was given greater historical significance than it deserved: see, for example, the discussion of prescription in Jean Brissaud, A History of French Private Law (Boston, 1912), pp. 353–65.Google Scholar

16 Smith, Adam, Lectures on Justice, Police, Revenue, and Arms, ed. Cannan, Edwin (Oxford, 1896),Google Scholar pp. III–12 . Rutherforth, Thomas, Institutes of Natural Law (2nd American ed. Baltimore, 1832),Google Scholar Bk. 1, ch. 8. sect. 4, 5; Bk. 11, ch. 10, sect. 4. Rutherforth's work was first published in two volumes at Cambridge, 1754–56.

During the French Revolution, most pamphleteers who wrote against Burke merely rejected his principle of prescription and dogmatically asserted in turn the inalienable, imprescriptible, and indefeasible rights of man. A few ‘moderate’ Englishmen who questioned some of the basic propositions of Price and Paine also questioned, on traditional grounds, the morality of Burke's principle of prescription. On p. 20 of A Letter to the Right Honourable Edmund Burke (London, 1791),Google Scholar Sir Brooke Boothby wrote, ‘Neither the hereditary succession of ages nor the acquiescence of millions can sanctify abuse or change evil into good. Wrong may be endured, but it cannot be established. A bond in which no valuable consideration has been retained by one of the contracting parties is void in law as well as in equity. Possession and prescription may be good titles primd facie, but they must give way when higher claims and better rights are produced.’ Similarly, on pp. 12 and 13 of Temperate Comments upon Intemperate Reflections (London, 1791),Google Scholar an anonymous critic of Burke asked, ‘Shall possession, without regard to the manner in which it is acquired, constitute an immediate right? Or how many generations are necessary to give respect to usurpation, and establish a right to power illegally assumed? Is the tyrant Tippo as yet the lawful sovereign of Mysore? Mr Burke's principle leaves not a shadow of distinction betwixt possession and right’. (See also, Strictures on the Letter of … Mr. Burke, London, 1791, pp. 131, 134 –5, quoted below in footnote 41.Google Scholar) If Burke could provoke ‘moderates’ to defend traditional positions, it is no wonder that the more ‘extreme’ Peter Cooper spoke the same language against the idea that prescription and long continuance were the foundation of civil government: ‘for it could not have been of long continuance when it was first exercised; and if it could, prescription gives no right but in the positive institutes of municipal law; even there, series annorum non consecrat error em… An act of injustice can never be the foundation of an equitable right’ (A Reply to Mr. Burke's Invective, London, 1792, p. 80Google Scholar). These criticisms did not deter Burke from his harshly realistic pursuit of uncovering old usurpations and then legitimating them by his principle of prescription. When he defended his right to a royal pension by baring the origins of the duke of Bedford's estates, those in sympathy with the French revolutionists did not fail to take advantage of Burke's imprudent, rhetorical researches and to misconstrue his argument. Burke's letter was described by William Miles as an attack upon the nobility, and by John Thelwall as also a dangerous assault upon property, for all territorial possession seemed to be represented by Burke as originating in plunder and usurpation. Surely, they implied, not all property was illegitimate in its origins, and Thelwall asked, ‘Are the foundations of all other inheritance to be shaken, that these usurpations may be rendered the more secure… ?’ (Miles, A Letter to Henry Buncombe, Esq., London, 1796, pp. 74–9;Google Scholar Thelwall, Sober Reflections on the Seditious and Inflammatory Letter of the Right Hon. Edmund Burke to a Noble Lord (London, 1796),Google Scholar especially pp. 13, 15–18, 20. See also, Thomas George Street, A Vindication of the Duke of Bedford's Attack upon Mr. Burke's Pension (London, 1796), p. 50.)Google Scholar Miles and Thelwall did not mistake Burke's attitude: in a letter of 1793 to his son, Richard, Burke insisted that prescription was ‘the original ground of all known property’ (Works, vi, 412).

Did the English common lawyers require good faith and just title? Maitland wrote that the English law took little account of the canonistic requirement of bona fides in the establishment of prescriptive rights; Joüon des Longrais felt that it took none; and Digby and Markby excluded iusta causa or iustus titulus as well. (SirPollock, Frederick and Maitland, Frederic W., The History of English Law before the Time of Edward I, 2nd ed. 2 vols. Cambridge, 1923, 11, 143;Google Scholardes Longrais, F. Jouon, La conception anglaise delasaisine du XIIe au XIVe siècle, Paris, 1924, p. 197;Google ScholarDigby, K. E., Introduction to the History of the Law of Real Property, 5th ed.Oxford, 1897, p. 428;Google ScholarMarkby, William, Elements of Law, 5th ed.Oxford, 1896, sect. 560.Google Scholar) Although prescriptive rights to certain incorporeal hereditaments, such as footpaths, might begin in trespass, none the less the oracles of the English law had in theory usually required some normative, transcendent, and higher conception—however arbitrary, obscure, or artificial—to control the acquisition of prescriptive rights. Bracton repeated the civil and canonical requirements that legitimate user be of right and without violence and fraud (Digby, Real Property, p. 183; Holdsworth, W. S., An Historical Introduction to the Land Law, Oxford, 1927, p. 282;Google Scholaridem, A History of English Law, 12 vols. London, 1922–38, vn, p. 343;Google ScholarSimpson, A. r W. B., An Introduction to the History of the Land Law, Oxford, 1961, p. 103Google Scholar). Littleton spoke of prescription against reason as being void, of common right and the common law as invalidating prescription, and of reasonableness ruling custom and precedent (Allen, C. K., Law in the Making, 6th ed.Oxford, 1964, pp. 601,Google Scholar 606, and—in general—599—617). In one of the Year Books of Henry VII, the judges spoke of prescription requiring a ‘loyal commencement (Herbert, Thomas A. r, The History of the Law of Prescription in England, London, 1891, p. 79Google Scholar). Coke spoke of prescribing upon a ‘just and reasonable cause’—‘reasonable’ meaning, of course, legal, not natural, reason—‘according to common right’, and with ‘lawful commencement’. (Coke, 4 Institutes, 298; The Compleat Copyholder, sect. 33; 1 Institutes, 113.) In Charles Viner's mid-eighteenth-century Abridgement, the old injunction that prescription must have a ‘lawful beginning’ was repeated (xvn, 262, 267, 271). However, by means of the fiction of a lost grant, eighteenth-century English law was working its way (as civil law had earlier on the continent) towards agreement with Burke's general position of prescription. Yet, this novel fiction—that long user presumed a lost grant and thus a lawful origin—was well-established only in the latter part of the century; more importantly, it still implied the normative requirement that the thing prescribed might be legally granted in modern times (a requirement which might also have anachronistic consequences); and, at law, this requirement made the fiction a rebuttable presumption. Only in the early nineteenth century did this presumption become a presumptio juris et dejure. Here, as in other things, Burke was more in the vanguard of innovation than in the rearguard of tradition (Jacob, Giles, A New Law Dictionary, London, 1750,Google Scholar s.v. ‘prescription;’ Blackstone, William, Commentaries on the Laws of England, 4th ed., 4 vols. Oxford, 1770, 11, 265;Google Scholar Allen, Law in the Making, p. 131; Holdsworth, Land Laws, pp. 281–3; Simpson, Land Law, pp. 248–50; Holdsworth, H.E.L., in, 171; vn, 343–9).

17 Bentham, Jeremy, Theory of Legislation (trans, from the French of Etienne Dumont by Atkinson, Charles M., 2 vols. Oxford, 1914),Google Scholar 1, 212; n, 130–31. However much Bentham insisted upon the criterion of utilitarian consequence rather than mental intention in the punishment of criminals, in property law and with respect to statutes of limitation, he espoused honesty and good faith as the bases of legitimate possession: ‘Instead of the thorny question of possession, substitute that of honest intention’ (Bentham, Works, ed. John Bowring, Edinburgh, 1843, in, 188). For an evidence of the natural-law quality of Benthamism, see Paul Lucas, ‘Ex parte Sir William Blackstone, “Plagiarist”: A Note on Blackstone and the Natural Law’, American Journal of Legal History, VII (1963), 142–58.Google Scholar

18 Linguet, Simon, Théorie des loix civiles (2 vols. London, 1767),Google Scholar 1, 63–6, 192, 284. See also Greeves, H. R. G., ‘The Political Ideas of Linguet’, Economica, x (1930), 40–55.CrossRefGoogle Scholar

19 Burke, Reflections, ed. Todd, p. 276.

20 See Burke's letter to Captain Thomas Mercer, 26 February 1790, in Works, VI, 405 ff. and Prior, James, Edmund Burke (2 vols. London, 1826), 11, 79–84.Google Scholar The argument of the Ascendancy was like that of the Whigs during the exclusion controversy: the Whigs had argued that if James succeeded to the throne, the Roman Catholic Church would want back its monastic lands, which were inalienable: Furley, O. W., ‘The Whig Exclusionists’, Cambridge Historical Journal, XIII (1957), 24.Google Scholar

21 For Roman law doctrines, see the works cited in footnotes 10 and 38. For the development of inalienabilities and imprescriptibilities in the canon law and medieval theories of kingship, see Peter Riesenberg, Inalienability of Sovereignty in Medieval Political Thought (New York, 1956);Google ScholarThe King's Two Bodies (Princeton, 1957); ‘Kingship under the impact of Scientific Jurisprudence’, in Twelfth-Century Europe and the Foundations of Modern Society, ed. Claggett, Marshall et al. (Madison, Wisconson, 1961);Google ScholarHoyt, Robert S., The Royal Demesne in English Constitutional History (Ithaca, 1950).Google Scholar

22 Octave le Maire, L'imprescriptibilite de l'ancienne noblesse et la dérogeance d'après la jurisprudence ancienne (Brussels, 1953), especially fos. 5–13, 65–6.Google Scholar

23 These were the sentiments of Charles Du Moulin in his classic, early sixteenth-century treatise on fiefs. Henrion's eighteenth-century edition of the work contains a useful collection of references to the later feudal doctrines of various French legists (Traité des fiefs de Du Moulin, ed. Pansey, P. Henrion de, Paris, 1773, pp. 573–4, 577 n., 580 n., 606 n.).Google ScholarIn his Collection de jurisprudence sur les matiéres féodales et les droits seigneuriaux (Avignon, 1773),Google Scholar I, 7, 196, Louis Ventre-Artefeuil wrote of the nexus clienteralis and denied roturier property any exemption from the taille by prescription. In some provinces during the later Middle Ages, possession of noble land enabled a roturier to acquire nobility by prescription; but by the seventeenth century, the theory that the source of nobility was in the imprescriptible prerogative of the prince, not in the fief, was being enforced by royal investigations: Bloch, Jean-Richard, L'anoblissement en France au temps de François Ier (Paris, 1934), p. 27.Google Scholar Almost as difficult as the prescriptive acquisition of nobility was that of feudal rights. On the eve of the French Revolution, it was a commonplace for members of the third estate to demand that the cens and other seigniorial and ecclesiastical rights be subject to prescription: Résumé général, ou Extrait des Cahiers (3 vols. Paris, 1789),Google Scholar m, 325. Only in some provinces of France—Normandy was one—were seigniorial rentes prescriptible: Henry Basnage, La coutume.…du.…Normandie (2 vols. Rouen, 1694),Google Scholar n, 363.

The classic British treatise on fiefs was written by the late sixteenth-century Scots lawyer, Sir Thomas Craig. Craig conceded that prescription could not at law make a feudal estate in either England or Scotland, but he intimated that he wished that it could: The Jus Feudale, trans. Clyde, J. A. (2 vols. Edinburgh, 1934),Google Scholar Bk. I, tit. 7; Bk. 11, tit. 1, sect. 8, 9.

When lawyers did admit prescription in feudal relations, they generally required, of course, good faith and just title. See, for example, the works of the greatest eighteenth-century French : feudist, Germaine-Antoine Guyot, especially his Institutions féodales (Paris, 1753), p. 222.Google Scholar A full sense of the difficulties and ambivalences among the French feudists in the eighteenth century on the matter of prescription may be seen in Edme de la Poix de Freminville, Les vrais principes des fiefs (2 vols. Paris, y),Google Scholar n, 79 ff. and in Hervé, Théorie des mati`res féodales et censuelles (8 vols. in 7, Paris, 1788),Google Scholar vn, part 2. For late eighteenth- and early nineteenth-century discussions in Germany regarding the prescriptibility of fiefs and whether or not iustus titulus and bona fides were necessary where prescriptibility was admitted, see Carl Wilhelm Paetz, Lehrbuch des Lehnrechts (Göttingen, 1819);Google ScholarBartsch, Robert, De praescriptione feudi acquisitiva (Bratislava, 1856),Google Scholar where Paetz's conclusions are criticized; and the extensive literature that both authors cite.

24 The relation of the argument of the natural rights of man to the idea of the divine right of kings was noted by Figgis, John N., The Divine Right of Kings (2nd ed.Cambridge, 1922), pp. 152–3,Google Scholar 161, 176, 178. Indeed, the phrase ‘natural right’ appears in pamphlets written on behalf of the Roman Catholic Stuarts: see, for example, Baker, John, Jus Sacrum, or, a Discourse wherein it is fully Prov'd and Demonstrated, that no prince ought to be Depriv'd of his Natural Right on Account of Religion (London, 1712).Google Scholar It is not surprising, therefore, that such a natural right as liberty was deemed inalienable: see, for example, Turnbull's note to Heineccius, Universal Law, I, 245. For a good example of how the ‘popular’ party saw the idea of prescription as but an attack by privileged kings against the ‘nation’, see Claude Mey, Maximes du droit public françois (2nd ed. 6 vols. Amsterdam, 1775),Google Scholar 1, 351 ff.

25 Here I am extending Burke's remarks on inheritance to his conception of prescription: ‘The idea of inheritance furnishes a sure principle of conservation, and a sure principle of transmission; without at all excluding a principle of improvement. It leaves acquisition free; but it secures what it acquires’ {Reflections, ed. Todd, p. 38). But, with Burke, prescription is closely bound to inheritance, for the inheritance of Englishmen is augmented by prescription. Burke's pamphlet of 1770 on ‘Present Discontents’ cannot be fully understood unless one perceives that Burke was arguing that a prescriptive right had been acquired to innovations in constitutional practice that he thought (pace Namier) had taken place in the 1750s; and so, Burke wrote, ‘To be a Whig on the business of a hundred years ago, is very consistent with every advantage of present servility’ (Works, v, 46). Cf. Burke's speech, in 1772, on the Navy Estimates, in Speeches, 1, 140. Writing in 1791, Burke described the British Constitution as having ‘progressively improved’ and ‘ripened’ (Works, IV, 47, 209). In 1794, inasmuch as England had a ‘prescriptive government’ (Works, v, 46), Burke granted the people a ‘prescriptive right’ to the ‘abuse’ of the publication of the proceedings of the House of Commons (Works, xi, 150). Leslie Stephen erred when he conceived of Burke's prescription as excluding a belief in progress: History of English Thought in the Eighteenth Century (2nd ed. 2 vols. London, 1881), x, 102Google Scholar

26 As Thomas Christie observed in his Letters on the Revolution of France (London, 1791), p. 16,Google Scholar Burke ‘founds our most sacred rights on no other ground than that of Prescription. But what time gives, time may take away—what power conferred, power may rob us of.…’

27 What one sarcastic radical wrote as a definition of precedent he might have offered as his understanding of prescription: ‘Precedent,—a kind of argument, which we must not confound with example. PRECEDENT is only brought in proof to favour the claims and interests of Kings, ministers, and the privileged classes. It is absolutely insignificant, and of no force, when the maintaining or recovering of the Rights of the People is in question. This is what distinguishes precedent from example, which applies equally to all.’ Pigott, Charles, A Political Dictionary (London, 1795), p. 106.Google Scholar

28 For a full discussion of the question of customary freeholders and the Oxfordshire election of 1754, see Paul Lucas, ‘Essays in the Margin of Blackstone's Commentaries’ (Ph.D. thesis: Princeton, 1962),Google Scholar ch. v: ‘The Indelible Villainy of Copyholders: Blackstone, the Oxfordshire Election of 1754, and the Conservative Opposition to the Acquisition of the Franchise by Right of Prescription’, pp. 176–94. By the middle of the nineteenth century, perhaps partly as a result of Burke's writings and certainly as a consequence of Lord Tenterden's Church Nullum Tempus Act, the Prescription Act of 1832 and the Real Property Limitation Act of 1833, there was a shift in English law to the mere fact of possession as the basis of the title, so that the Unitarians were able to avail themselves of the right of prescription. But certain members of the Established Church (as well as some Irish Presbyterians) argued on traditional grounds that time cannot legitimate or establish an injury. See Macaulay's speech on the Dissenters’ Chapels Bill, in his Speeches (Everyman ed. London, n.d.), pp. 240–52.Google Scholar

29 See the works cited above in footnote 23.

30 Monopolies could not be prescribed in because that would be ‘contrary to common right’. (Correspondence, ed. Fitzwilliam, iv, 459.) In 1794, Burke allowed that the people had a prescriptive right to the abuse of publishing the proceedings of the House of Commons (Works, xi, 150). But no prescriptive right was permitted Lord North in the debate on the Navy estimates of 1772, nor later to the king who was to undergo Burke's ‘economical reform’. Warren Hastings was not allowed to plead that time had obliterated the sufferings of the Indians whom he had oppressed nor might the Jacobins begin a new prescriptive period and constitute themselves as ‘the bona fide possessors of the soil of France’. (Works, xn, 131; ix, 456; iv, 409). Burke believed that the French revolutionists could not begin a new prescriptive period, nor rightly interrupt an old one: Robert M. Hutchins, ‘The Theory of the State: Edmund Burke’, The Review of Politics, v (1943), 150. One of Burke's contemporaries asked, ‘I should be glad to know, in all the revolutions in empire which have ever taken place, or may hereafter take place in the world, what the boundary line is which Mr. Burke would establish between the usurpation which creates the new government, and the possession which legitimates the usurpation? What statute of limitations he would set up to protect such a title ?’ He then concluded that time might legitimate revolutions: Thoughts on a Peace with France (London, 1796), pp. 37, 41.Google Scholar

31 In religious matters, for example, it was natural for the reformers of the sixteenth century to appeal to ‘truth’ and deny prescriptive rights to what they deemed errors and abuses. See, for example, John Calvin, Institutes, ed. J. T. McNeill and translated by F. L. Battles 2 vols. Philadelphia, 1960, 1, 23: although public error has its place in the society of men, God's eternal truth ‘cannot be dictated to by length of time, by long-standing custom, or by the conspiracy of men’. John Ponet insisted that good conscience demanded the restoration of lands prescribed by human laws and that men ‘cannot prescribe to do evil’ (Ponet, A Short Treatise, p. 28, in Winthrop Hudson, John Ponet, Chicago, 1942).Google Scholar But the established churches hesitated to rely entirely upon prescription. Richard Hooker, who is alleged to have been a spiritual ancestor of Burke, used the idea of prescription only once—to defend the authority of bishops. The argument that Hooker used most often against Puritan critics of the Anglican Church was the idea of adiaphora—things indifferent. It was not really until the time of Richelieu that the Roman Catholic Church chose to defend itself partly on the ground of prescription against Protestant attacks: during the seventeenth century, Tertullian's tract, ‘On Prescription against the Heretics’, enjoyed an unwonted and short-lived popularity. (See Tertullian, De praescriptione haereticorum, ed. Refoulé, R. F., Paris, 1957,Google Scholar and especially the introduction, pp. 68–76.) Similarly, in England, the Anglican Church felt embarrassment when it employed the argument of prescription. In the seventeenth century, Robert Sanderson found Tertullian's argument of prescription against the heretics the best way to defend authority, but reason was equally necessary, especially if one wished to resist the Church of Rome's unwritten, human traditions. (See The Nature and Obligation of Conscience explained, 3 vols. London, 1722, 4th Prelection,especially 11,258–9.)Google Scholar Ini736, William Warburtonhad used the argument of prescription against the Dissenters and the proposed repeal of the Test Acts; but Warburton's conception of prescription had included the customary requirement of good faith. Furthermore, Warburton preferred a priori, theoretical principles to argument from ‘the illiberal tenure of more ancient custom’; and he insisted that precedents ‘are nothing when they oppose the genius of a constitution’. The Alliance between Church and State, in William Warburton, Works, ed. Richard Hurd, 12 vols. London, 1811, vn, 268–9.Google Scholar This book was first published in 1736; the Works contain a reprint of the fourth edition of 1766. Warburton, , Letters from a late eminent Prelate to one of his Friends, 2nd ed. (London, 1809),Google Scholar no. 145 (14 October 1760, pp. 313–14.) It was not really until William Paley—on the eve of the French Revolution—that an English clergyman appeared who denied the necessity of good faith and just title in his discussion of property and who argued in the manner of Burke that prescription was the basis of all titles (Paley, William, The Principles of Moral and Political Philosophy, 7th ed.Boston, 1811, pp. 100–1, 333 ff.).Google Scholar In private litigation, prescription was the last argument that one was urged to use in the defence of one's possessions: Blackstone advised one to plead prescription only if one could not plead right, corporeal seisin and inheritance, or immemorial usage {Commentaries, 11, 264). French lawyers gave similar advice to their clients: e.g. Duplessis, Oeuvres (1754), p. 502. Furthermore, it is to be remembered that prescription was allowed only upon certain conditions: see above, footnote 16. Custom, which is not the same as prescription (see below, footnote 40), was the penultimate argument on Blackstone's list; and it is wise to remember that the judges would not allow a plea on the grounds of a custom that violated their sense of moral right or public convenience, for common lawyers had an old maxim of jurisprudence that ‘Bad custom is to be abolished’.

32 Gough, J. W., John Locke's Political Philosophy (Oxford, 1950), pp. 55–6Google Scholar

33 In the middle of the period of the Stuarts, such ‘Parliament Men’ as John Whitehall and Philip Hunton used the argument of prescription, and they were opposed by Hobbes, Filmer, and Brady. Whitehall attacked Hobbes's notion that custom existed by permission of sovereigns; on the contrary, wrote Whitehall, a custom was a law by prescription, and by length of time custom, the common law, and property were secured. Hunton allowed of monarchies by usage or prescription because that principle implied popular consent. Hobbes opposed the argument of prescription (and custom) precisely because it implied a legal and consensual authority beyond the control of the sovereign. Filmer preferred to argue from divine right, because that right never died, whereas prescription might in turn be prescribed against. (However, Filmer did allow prescription, though an imperfect right, to avail against all but the true owner; thus, usurpers were to be obeyed until the legitimate ruler was discovered.) Brady refused to allow earlier precedents of altered successions to bar a claim of justice. At the beginning of the reign of the first Stuart, Parson's opposition to the accession of James I had been answered by Sir John Hayward on the grounds that the consensual authority of the people had been excluded by prescription; Thomas Craig chose to defend James's title on the grounds of both right and prescription, but clearly preferred right because possession without and against right was not sufficient, and it might be argued that prescription could not be founded upon force and violence. During the exclusion controversy, Mackenzie was of two minds: at one point, he stated that succession was according to the law of nature, against which no prescription ran; but at another place, the English monarchy was said to be founded on, amongst other things, prescription. After the Glorious Revolution, some of the ‘winners’, like William Higden, were content to argue from mere possession of sovereignty as a basis for allegiance and obedience, with the implication that a new prescriptive period had begun. Here, Higden resembled the fifteenth-century Lancastrian propagandists who had argued from prescription. But such Tories as Charles Leslie and Henry Gandy refused to acknowledge that prescription might run against the king; they are to be compared to other, earlier ‘losers’—the Yorkists. The most famous reply to Higden was the work of George Harbin, who, like Craig and Mackenzie before him, preferred to use prescription to support a claim of right (Whitehall, John, Leviathan Found Out, London, 1679, p. 53:Google Scholar quoted in Gough, John, Fundamental Law in English Constitutional History, Oxford, 1955, p. 144.Google ScholarHunton, Philip, A Treatise of Monarchy (1643), London,Google Scholar 1689, Part 1, ch. 3, sect. 4. Filmer, Robert, Patriarcha, ed. Laslett, Peter, Oxford, 1949, pp. 232–3.Google ScholarHobbes, Thomas, Elements of Law, ed. Tönnies, Ferdinand, Cambridge, 1928,Google Scholar Part 1, ch. 17, sect. 4. Brady, Robert, A True and Exact History of the Succession of the Crown of England, 2nd ed.London, 1684, pp. 394–5.Google ScholarSirHayward, John, An Answer to the first part of a certain conference, concerning succession.… of R. Dolman,London,1603, p. 22.Google ScholarCraig, Thomas, The Right of Succession to the Kingdom of England, London, 1703, p. 338.Google ScholarSirMackenzie, George, Jus Regium, London, 1684, pp. 49,Google Scholar 149. Higden, William, A View of the English Constitution, 3rd ed., London, 1710,Google Scholar especially ch. 4. Leslie, Charles, A New Farce, London, 1710, especially pp. 8–10.Google ScholarGandy, Henry, Remarks on Mr. Higden's Utopian Constitution, London,Google Scholar n.d. Harbin, George, The Hereditary Right of the Crown of England asserted, London, 1713, pp. 11–13,Google Scholar 17. On the Lancastrians and the Yorkists, see Chrimes, S. B., English Constitutional Ideas in the Fifteenth Century, Cambridge, 1936, pp. 64–5).Google Scholar During the eighteenth century, it is no hard task to find Whigs who argued against prescription and for the ancient constitution. For example, after the agitation over the use of general warrants (during which the king's ministers pleaded prescription by way of justification), St Amand's Essay was reprinted as an introduction to Almon's collection of Lords' Protests; he wrote, ‘no prescription can be from illegal acts, or against liberty’, and ‘the right of the people subsisted, and however invaded by him [i.e. William the Conqueror], might lawfully be recovered, and exercised whenever they could find the means to get the power of so doing; for no prescription can be from illegal acts, or against liberty’ (Amand, George St, An Historical Essay on the Legislative Power of England, London, 1767, p. 62.Google Scholar This work was first printed in 1725.) In France, prescriptive rights to the property of sovereignty had generally been a basis more for the claims of adherents of absolutism than for those of parlementaires and aristocrats: Church, W. F., Constitutional Thought in Sixteenth Century France (Cambridge, Mass., 1941), especially pp. 319, 329–32.Google Scholar

34 Everett, C. W. (ed.), The Letters of Junius (London, 1927), pp. xxxv–xxxvi n.Google ScholarBonsall, Brian, Sir James Lovither and Cumberland and Westmorland Elections, 1754–1755 (Manchester, 1960), p. 85.Google ScholarWoodfall, George (ed.), The Letters of Junius (3 vols. London, 1812),Google Scholar in, 16, 55. Annual Register (1768), pp. 78 ff. Edmund Burke, Correspondence, ed. Copeland, 11, 38. Cobbett, Parliamentary History, xvn, 16, 27. The Bill was passed as 9 Geo III, c. 16. Is it perhaps too clever to observe that one can hardly conceive of Burke's undertaking ‘economical reform’ without the prior enactment of the Nullum Tempus Bill? But for that statute, George III might have been able to retaliate by rebuilding the Crown's domain.

35 Pares, Richard, George III and the Politicians (Oxford, 1953).Google Scholar

36 Cobbett, Parliamentary History, xvn, 301–8; Burke, Works, vn, 139–41. While Burke was attacking the Church, the democrat Granville Sharp was seeking to protect the Church from prescription, which he, like Burke, allowed against the Crown: A Short Tract concerning the Doctrine of ‘Nullum Tempus Occurit Regi’ (London, 1779).Google Scholar Clearly, Burke conceded that prescription had yet to become a fundamental law and a substitute for natural law in English conservative thought. Clearly, Burke conceded that this Bill had been introduced on behalf of a constitutional and jurisprudential principle (and a ‘metaphysical’ principle?); it was not primarily a practical and necessary measure initiated to thwart an attack on private property, as had been the case of the Crown Nullum Tempus Bill. Clearly, Burke's speech revealed a typical undertone of spiritual anxiety that was characteristic of the outwardly complacent squirearchy of the mid-eighteenth century: there was a desire to pick up and to tuck in loose ends lest their entire constitutional garment become unravelled. Clearly, Burke conceded that prescription did not run against sacred things, because, according to canon law, Church lands were in (ali) alienable. Consequently, Burke clearly conceded that prescription was a gift of parliamentary statute, not an ancient right of Englishmen. Burke was also intellectually consistent : later, when opposing the confiscation of Church property by the revolutionists in France, Burke never invoked the idea of inalienability, as found in the natural or canon laws to protect sacred things. (Burke quarrelled with the idea that corporations were erected by the state and that their property was therefore subject to confiscation; for fictional persons, unlike real ones, were deemed by the revolutionists to have no natural rights antecedent to the social contract, and hence property was to be distinguished according to the person possessing it. See Burke, Correspondence, ed. Fitzwilliam, iv, 142–3.) Instead, Burke cited prescription, a mode of acquisition that many a contemporary priest of the Roman Catholic Church must have regarded as implicitly denying an original right of the Church to its property and thereby weakening its just claims. It is therefore quite understandable that many nineteenth-century Englishmen thought Burke a defender not of right, but of expediency, especially when one considers the terms in which he attacked French confiscations and defended Henry VIII's sale of monastic lands: the England of Henry VIII had needed money, but Necker's financia) report proved that revolutionary France did not. (Cf. Burke, Reflections, ed. Todd, pp. 141 ff.

37 See the works by J. G. A. Pocock and C. P. Courtney, cited above in footnote 3.

38 Maitland, F. W., Collected Papers, ed. Fisher, H. A. L. (3 vols. Cambridge, 1911),Google Scholar 11, 67; Pollack and Maitland, English Law, n, 81, 141–4; Joüon des Longrais, Saisine, p. 197 n.; Herbert, Prescription, pp. 4–5, 85–6, 526; Digby, Real Property, p. 184; Holdsworth, Land Law, p. 276; idem,H.E.L., 11, 356; m, 166; Broom, Herbert, Legal Maxims, ed. Byrne, W. J. (9th ed.London, 1924),Google Scholar s.v. ‘prescription’. Burke was actually trying to follow later Roman law and modern Continental and Scottish jurisprudence in uniting both prescription and usucapion. On the positive acquisition of title to land by prescription in later Roman law, see Berger, Encyclopedic Dictionary of Roman Law, pp. 645, 752; Buckland, Roman Private Law pp. 131–3. For a comparison of the Roman and common laws on this point, see Buckland and McNair, Roman Law and Common Law, pp. 80, 117–24, 414–15.

From Tudor times down through the early nineteenth century, the principal doctrinal writers on English law denied all acquisitive prescription of land (Germain, Christopher St, Doctor and Student, ed. Muchall, William, Cincinnati, 1886,Google Scholar Dialogue I, ch. 8; Blackstone, Commentaries, n, 264; Viner, Charles, A General Abridgement of Law and Equity, 2nd ed., (London, 1793), xvn, 259;Google Scholar Jacob, Dictionary, s.v. ‘prescription’; Cruise, William, A Digest of the Laws of England respecting Real Property, 4th American and 3rd London eds., 6 vols. New York, 1834, Title 31, in, 480).Google Scholar Only in the later nineteenth century was this asserted, and it is not the ‘better opinion’: Markby, Elements, sect. 554.

39 See Lucas, Essays (cited above in footnote 28), ch. vi ‘The Paths of Descent’, pp. 195–264.

40 Coke, Reports, vi, 60b; Coke, Copyholder, sect. 33; Blackstone, Commentaries, 11, 263; Wooddeson, Richard, Systematic View of the Laws of England (2 vols. Dublin, 1792),Google Scholar 11, 50; Grey, Richard, A System of English Ecclesiastical Law (London, 1730), p . 196.Google Scholar Cf. also Holdsworth, Land Law, p . 280; idem, H.E.L. in, 168; Digby, Real Property, pp. 183–5; Simpson, Land Law, p p . 104, 108. It must be admitted, however, that there was a certain looseness of language amongst lawyers, a tendency to confound prescription and custom (C. K. Allen, Law in the Making, p. 610). Jacob's Law Dictionary had loosely defined prescription as time out of mind. But t h e distinction between the two was dominant and has continued to be so: see Carson, Thomas H., Prescription and Custom (London, 1907).Google Scholar The canon law clearly distinguished prescription from custom ( T.O. Martin, Adverse Possession, pp. 69–70), as did most continental jurists: see Calvinus, Johannes, Lexicon Juridicum (Geneva, 1622),Google Scholar s.v. ‘praes scriptio’, p. 732. Indeed, prescription and custom could be antagonistic principles: see J. R. Strayer, ‘Le bref de nouvelle dessaisine et le “commun” en Normandie à la fin du xiiie siècle’, Revue historique de droit français et étranger, 4th ser., XVI (1937), 479–88 (I am indebted to Professor Strayer for having called his article to my attention). Burke's confusion of prescription and custom was shared by Samuel Johnson, whose dictionary identified the two ideas, and this confusion is being perpetuated even today: see Kirk, Russell, ‘Prescription, Authority, and Ordered Freedom’, in Meyer, Frank S., What is Conservatism (New York, 1964), pp. 23, 27.Google Scholar

41 On the ‘Norman yoke’ see Christopher Hill, Puritanism and Revolution (London, 1958), ch. III.Google Scholar

Contemporaries sensed that, with his idea of prescription, Burke was turning into a main principle what had usually been but an ancillary proposition to an argument from conquest. In Strictures on the Letter of the Right Hon. Mr. Burke, on the Revolution in France (London, 1791), p. 135,Google Scholar it was observed that ‘Possession is not a right, and it is the constant practice. … for invaders and usurpers to set up a long unjust possession in opposition to a just claim and title. What is obtained by fraud or force is always in justice recoverable; and no man or set of men are to be benefited by their iniquity, nor ought their successors to reap the advantage.’

42 Burke's distaste for the use of the argument from conquest as well as his need to maintain an argument that would produce the same effect for past conquests and prohibit future ones— an argument of right from the statement of fact, a derivation of the ‘ought’ from the ‘is’—may best be seen in his comments on the case advanced by the Ascendancy in Ireland. See above, footnote 20.

43 See above, footnote 39.

44 See above, footnote 25, and Works, vn, 95–7, where Burke states that a prescriptive House of Commons excludes a return to an ancient past because such a customary conception of the constitution implies a ‘foregone theory’. Cf. also Works, vn, 475–88

45 On ahistorical conservatism and radicalism, see J. G. A. Pocock, ‘Machiavelli, Harrington, and English Political Ideologies in the Eighteenth Century’, William and Mary Quarterly, 3rd ser. xxil (1965), 549–83, especially pp. 579, 581.

46 Burke, Works, vn, 91, 94, 95–6. For Paley's defence of prescriptive prejudice, see his Principles, especially Bk. VI, ch. 2, pp. 333 ff., also, pp. 413 ff. Seventeenth- and eighteenthcentury writers on Scots law seem to have been far less certain and ‘traditional’ in their doctrine of prescription than were English jurisprudents: Had the Roman conception of usucapion been received into the body of Scottish notions of feudal title? Was bona fides required to establish a prescriptive right? Although the tendency is towards the negative, there is no definite unanimity to the answers of SirMackenzie, George, The Institutions of the Law of Scotland (2nd ed.Edinburgh, 1688), pp. 283–4;Google ScholarDalrymple, James, Stair, Viscount, The Institutions of the Law of Scotland (3rd ed.Edinburgh, 1759), pp. 367–71;Google ScholarErskine, John, The Principles of the Law of Scotland (3rd ed.Edinburgh, 1764), pp. 346–7;Google ScholarErskine, , An Institute of the Law of Scotland (2 vols. Edinburgh, 1773), 1, 526;Google ScholarHome, Henry, Kames, Lord, Elucidations respecting the Common and Statute Law of Scotland (Edinburgh, 1774),Google Scholar art. 33; Napier, Mark, Commentaries on the Law of Prescription in Scotland (Edinburgh, 1854),Google Scholar ch. n. Hume, David, A Treatise of Human Nature (ed. Selby-Bigge, L. A., Oxford, 1951),Google Scholar Bk. in, part n, sect. 3, 10; pp. 503–13, 556–66; Hume, , An Inquiry concerning the Principles of Morals (ed. Hendel, Charles W., New York, 1957),Google Scholar sect, in, part n, p. 27. Cf. Hume's remarks on the prescriptive enfranchisement of precarious fiefs, the prescriptive parliamentary position of bishops, and succession by primogeniture in The History of England (6 vols. New York, n.d.),Google Scholar Appendix 11, following ch. xi: 1, 481, 490–1, 512. Whereas the old lawyers had justified prescription by rooting it partly in the consent implied by acquiescence, it is significant that Hume treated long possession as giving a conquering or usurping prince a title independent of the people's choice or inclination and as forming the psychological basis for their later consent to his government: ‘Of the Original Contract’, in Works, ed. Green, T. H. and Grose, T. H. (4 vols. London, 1875), in,Google Scholar 450–51. Cf. also H. B. Acton, ‘Prejudice’, Revue Internationale de philosophie, VI (1952), 323–36. Later Scottish, ‘commonsense’ philosophers went further than Hume. For example, Dugald Stewart (like Adolphe Thiers) virtually equated prescriptive and labour theories of property when he argued that, as a consequence of habit and the association of ideas, ‘all the inequalities of fortune are sanctioned by mere prescription; and long possession is conceived to found a right of property as complete as what, by the law of nature, an individual has in the fruits of his own industry’. Obviously, Stewart wished to have his Hume and to eat his Locke, too: The Philosophy of the Active and Moral Powers of Man, in Collected Works (ed.SirHamilton, William, London, 1855),Google Scholar vn, 271. Well before Hume, George Berkeley had also appreciated prejudice: see his Discourse addressed to Magistrates and Men in Authority (1736), in Works, ed. Fraser, A. C. (4 vols. Oxford, 1871), in, 410–30,Google Scholar especially pp. 412–14. But Berkeley does not seem, to have philosophized about the particular prejudice of prescription. On Locke, the association of ideas, and maxims, see An Essay concerning Human Understanding, ed. Fraser, A. C. (2 vols. Oxford, 1894),Google Scholar Bk. 11, ch. 33; Bk. iv, chs. 7, 12. Burke's emotional obscurantism was early revealed in the 1750s, when he wrote of his appreciation of ‘enthusiasm’ (a seventeenth- and eighteenth-century word usually and pejoratively applied to religious fanaticism) because it was close to right reason. Burke scorned the common and ‘selfish’ faculty of reason, and he expressly noted that prudence rested not in the use of reason but in the kind of passion that we gratify: Somerset, H. V., ed., A Notebook of Edmund Burke (Cambridge 1957), pp. 13,Google Scholar 67–9, 90, 92–3, 96, 118. However, Father Canavan believes that Burke's doctrine of prejudice derives from the practical reason of medieval schoolmen and natural lawyers: Burke, pp. 81, 120–35. Sabine, George H., A History of Political Theory (New York, 1961),Google Scholar ch. 29, and Meinecke, Friedrich, Die Entstehung des Historismus (2 vols. Munich and Berlin, 1936)Google Scholar ch. vi, sect. 3, discuss the relationship between Hume and Burke in a rather general way. Mario Einaudi specifically notes Hume's idea of prescription as one of the origins of Burke's philosophy; but vague is Einaudi's criterion for determining origins, imperfect is his (and Leslie Stephen's) presentation of Burke's conception of prescription as the historic continuity of a nation, and limited is his apparent circumscription of Hume's idea of prescription to a non-consensual origin of government: Edmondo Burke e l'indirizzo storico nelle scienze politiche (Turin, 1930)Google Scholar and ‘The British Background of Burke's Political Philosophy’, Political Science Quarterly, XLIX (1934), 576–98.Google Scholar

47 Cobban, Alfred, Edmund Burke (London, 1929), p. 79;Google Scholar Burke, Works, iv, 412; v, 225; vi, 368; Burke, Reflections (ed. Todd), p. 188.

48 Lovejoy, A. O., The Great Chain of Being (New York, 1960).Google Scholar

49 See above, footnote 46. Inasmuch as Hume looked beyond reason for the source of moral distinctions in our common life, and beyond mathematics for the paradigm of the science of morals, it is significant that prescription was the only instance in which Hume ever intimated that an objective, quantifiable measure of the sentiments was possible. Hume tested utility by existing, common beliefs, not by critical, felicific calculations; but in the measurement of duration, in the computation of time, rested Hume's only genuine concession to the quest of some ‘philosophers’ of the Enlightenment for a mathematics of morals. A mentality similar to Hume's was at work in a fellow Scotsman. In Kames's Elucidations, pp. 231–3, 235–6, 256, 274, it is calculated on almost psychological grounds that long possession produces in the sentiments of the possessor a strong ‘affection’ for his property and an acquired ‘conviction of freedom’ which is to be respected as producing the ‘greatest good possible with the least hurt’ even when (as it is only in rare cases) the true but dispossessed owner had retained his animus dominii; a fortiori, ‘when the relation of property wears out of memory, it is dissolved, and is at an end as if it never had existed’. Although Kames was ‘traditional’ enough to insist upon the necessity of good faith on the part of new possessors, he boldly speculated that all titles to land were, by his late day, based on prescription.

50 Jacob, New Law Dictionary, s.v. ‘prescription’. The canon lawyers also insisted that ‘time neither establishes nor takes away an obligation’: Duplessis, œwvres (1754), p. 485. Cf. Dante's conception of the relationship between time and prescription: ‘public justice will end with the end of time alone, and can be subject to the computation of no prescription’ (Eleven Letters, trans. Latham, C. S., Boston, 1891, letter 6, sect. 2, p. 142Google Scholar). Jacob's popular dictionary cites 3 Salkeld's Reports 278, which states that ‘Time of itself can never be the efficient cause of anything, for nothing is or can be done by time, though everything is done in time; therefore by consequence it is not the length of time that begets the right of prescription, but it is a presumption in law, that a possession cannot continue so long quiet and not interrupted, if it was against right, or injurious to another.’ At this point, Salkeld's judge is quoting Grotius, Dejure belli, Bk. 11, ch. 4, sect. 1. I do not know whether Grotius coined this aphorism by himself or took it from another writer. The thought is, of course, Aristotelian and Thomistic in character, but it does not seem directly to reproduce the very words of either Aristotle or St Thomas. Neither do I know when time was first denominated an ‘efficient’ cause of prescription or of anything else. Rutherforth considered himself a follower of Grotius, but he deviated from his master and explicitly identified time as the efficient cause of prescription. Fernando Vasquez, to whom Grotius was much indebted, was of two minds. In some passages of the second book of his Controversarium.…libri tres (Frankfurt-am-Main, 1572Google Scholar), it was stated that time by itself could generate nothing, because time was immaterial and nothing came of nothing; in other passages, the mere lapse of time ‘purged’ the ‘vices’ of dishonest possession and thereby allowed for legitimate prescription—which was contrary to the Roman law's maxim (Digest, 50. 17. 29) that ‘What is void from the beginning cannot be cured (convalescere) by the passage of time’. But, even here, Vasquez perceived a destructive force in time: for time did not create titles; rather, it purged vices. I hope in the future to discover when and why time was first deemed an ‘efficient’ cause.