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Burke on Prescription of Government

Published online by Cambridge University Press:  05 August 2009

S. J. Francis Canavan
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Extract

Professor Paul Lucas has described Edmund Burke's theory of prescription as his “idea about the way in which an adverse possession of property and authority may be legitimated by virtue of use and enjoyment during a long passage of time.” The description is accurate so far as it goes. Burke certainly maintained that if one had held uncontested possession as the owner of a piece of property for a sufficiently long period of time, no earlier title to the property, however valid, could be revived and made to prevail against the occupant's title. Through the passage of time the occupant had acquired a title by prescription, and this in Burke's eyes was “the soundest, the most general, and the most recognized title … a title, which … is rooted in its principle, in the law of nature itself, and is indeed the original ground of all known property.” Burke also said: “Prescription is the most solid of all titles, not only to property, but, which is to secure that property, to Government.”

Type
Research Article
Information
The Review of Politics , Volume 35 , Issue 4 , October 1973 , pp. 454 - 474
Copyright
Copyright © University of Notre Dame 1973

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References

1 Lucas, Paul, “On Edmund Burke's Doctrine of Prescription,” Historical Journal, XI (1968), 36Google Scholar.

2 Letter from Burke to his son, undated, The Works of the Right Honourable Edmund Burke (16 vols.; London: Rivington, 1803–1827), IX, 449Google Scholar. All subsequent references to Burke's Works will be to this edition.

3 Speech on the Reform of the Representation of the Commons in Parliament, 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 Pocock, J.G.A., “Burke and the Ancient Constitution,” Historical Journal, III (1960), 139–140Google Scholar, Burke did not deliver the speech. But it is an important exposition of his thought.

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36 Strauss, Leo, Natural Right and History (Chicago, 1953), p. 319Google Scholar. Paul Lucas says that Burke “believed that prescription possessed an immanent justification,” and that in his mind “time alone became the material and efficient cause of prescription” (Lucas, 40, 62).

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60 Works, VI, 217–219.