¹ The two latter rules of justice provide partial answers, ones that cover perhaps a majority of cases in a going society: my title to a piece of property is good if it was transferred to me by the previous rightful owner, or if I received it pursuant to a contractual agreement. But since these methods are derivative, Hume seeks more fundamental principles.

² Hume, David, A Treatise of Human Nature, ed. Selby-Bigge, L. A., Oxford, 1978Google Scholar. References, by section or page, will be incorporated in the text.

³ I take it that Hume implicitly also rejects merit as a workable basis for distributing authority, as well as property. The consent of the governed could be seen as a possible procedure for identifying superior merit among candidates for governmental office, rather than, as Hume treats it, a mechanism for expressing the interests of the people.

⁴ The heritability of political authority, such as a seat in the House of Lords or a French parlement, or of property conferring an English borough franchise, led people in the eighteenth century sometimes to regard political offices as a form of property.

⁵ Day, John, ‘Hume on Justice and Allegiance”, Philosophy, xl (1965), 50Google Scholar, suggests that Hume's endorsement of succession and long possession corresponded to prevailing ideas in his era.

⁶ See Lucas, Paul, ‘On Edmund Burke's Doctrine of Prescription; or, an Appeal from the New to the Old Lawyers”, Historical Journal, xi (1968), 53Google Scholar, for this and other information about the law of prescription.

⁷ Pufendorf, in the section of his work that corresponds to Hume's discussion of the rules of property, analyses both usucapion and prescription as correlative terms; Pufendorf, Samuel, De Jure Naturae et Gentium Libri Octo, trans. Oldfather, C. H. and Oldfather, W. A., 2 vols., Oxford, 1934Google Scholar. See Bk IV, ch. 12: ‘On Usucapion”. Vattel, in his discussion of the subject, notes that the term ‘prescription” refers to both processes in French, as in English; de Vattel, E., The Law of Nations, trans. Fenwick, Charles G., 3 vols., Washington, D.C., 1916, iii. 156.Google Scholar

⁸ Hume's similarity to Burke as a theorist of prescription in government is asserted by Sabine, George H., A History of Political Theory, rev. ed., New York, 1950, p. 604Google Scholar; and Acton, H. B., ‘Prejudice”, Revue Internationale de Philosophie, vi (1952), 333–4Google Scholar; as well as by Lucas, 60.

⁹ Pufendorf, , Bk VII, eh. 7, ‘Of the Ways of Acquiring Sovereignty, especially Monarchical Sovereignty”Google Scholar, more or less corresponds to Hume, , Treatise, III. ii.10Google Scholar, ‘Of the Objects of Allegiance”. It considers conquest, election, and succession but not prescription. In Bk IV, ch. 12, §11, Pufendorf cites some ancient ideas regarding the acquisition of dominion through usucapion, but he states no general rule.

¹⁰ Locke, John, Two Treatises of Government, ed. Laslett, Peter, Cambridge, 1988,11.94, p. 329CrossRefGoogle Scholar. Locke seems not to discuss prescription as such.

¹¹ Locke, , Two Treatises, 1.58, p. 183Google Scholar. Cf. his condemnation of rotten boroughs as an instance of this process in 11.157. Hume comes closest to Locke's attitude, perhaps, when he deplores the ‘strange supineness, from long custom”, that leads people to accept the public debt; ‘Of Public Credit”, Essays Moral, Political, and Literary, rev. ed., Miller, Eugene F., Indianapolis, 1987, p. 360.Google Scholar

¹² Hutcheson, Francis, A System of Moral Philosophy, (1755), in Collected Works, 8 vols., Hildesheim, 1969, Bk III, ch. 8Google Scholar. Hutcheson endorses prescription for property in Bk II, ch. 7.

¹³ Smith, Adam, Lectures on Jurisprudence, ed Meek, R. L., Raphael, D. D., and Stein, P. G., Indianapolis, 1982, p. 37Google Scholar. Note how Smith uses prescription simultaneously in its positive and negative senses: to say that a right ‘will prescribe” means either that it is strengthened by usage or is lost through disuse, or both.

¹⁴ Grotius, Hugo, De Jure Belli ac Pacis, trans. Kelsey, Francis W., 2 vols., Oxford, 1925, ii. 227.Google Scholar

¹⁵ Vattel, Bk II, ch. xi, and, for an example, iii. 81.

¹⁶ Hume, , ‘Of the Origin of Government” and ‘Idea of a Perfect Commonwealth”, Essays, pp. 39, 512.Google Scholar

¹⁷ Hume, , ‘Of the Original Contract”, Essays, p. 486.Google Scholar

¹⁸ Grotius, , ii. 223.Google Scholar

¹⁹ Hutcheson, Bk II, ch. 7, §7 (Collected Works, v. 335).Google Scholar

²⁰ Vattel, , iii. 81.Google Scholar

²¹ I develop these points in ‘Hume and Contractarianism”, Polity, xxvii (1994).Google Scholar

²² Hume, , ‘Of the Original Contract”, Essays, p. 475.Google Scholar

²³ Hume, , ‘Of the First Principles of Government”, Essays, p. 33.Google Scholar

²⁴ Pufendorf, Bk. IV, ch. 12 (in Oldfather, ed., ii. 647, 650).Google Scholar

²⁵ Hutcheson, , Collected Works, vi. 336Google Scholar. Throughout Bk III, ch. 7, on the methods of acquiring property, especially §§ 6–7, Hutcheson declaims against all restrictions, such as perpetual conditions attached to bequests, that impede future transactions and use of property; contemplation of excessive property tied up in religious establishments provokes a rather radical reaction: ‘The state has a just right to annul superstitious restrictions on any conveyances, and to make void all such conveyances as prove foolish or hurtful to society” (Collected Works, vi. 334Google Scholar). Hutcheson thus generally condemns the dead hand of the past weighing on present choices, yet he approves the rule of prescription, which ascribes legal force to past practice, as advancing his programme.

²⁸ Smith, , p. 36.Google Scholar

²⁷ Most strikingly: Plamenatz, John, Man and Society, 2 vols., London, 1963, i. 310Google Scholar. It is true that Hume openly denies that the reasons for the distributive rules of property are ‘deriv'd from any utility or advantage”, private or public (T, 502). I believe this to be a misstatement, however; what Hume seems to mean, as evidenced by the rest of the paragraph, is that the rules do not and cannot embody what might appear to be the most useful principle, ‘that every one were possess'd of what is most useful to him, and proper for his use”. Hume's argument is more subtle than Plamenatz sees: our interest may sometimes lead us not to insist on our interest, but to fall back on a factor such as salience that will facilitate general agreement. Our general interest in the stability of property and authority means that we cannot insist that our (or even the public) interest be promoted in the particular distribution of these things, as doing so would lead to endless quarrels and defeat the general interest.

²⁸ In his Enquiry concerning the Principles of Morals Hume shifts and argues that we should choose rules of property which ‘best promote public interest”, and that we fall back on ‘analogy” or imaginative criteria only when several possible rules are equally beneficial. The rule of prescription is said to be ‘requisite” for society, and even the exact length of time needed to validate a title can be set by the legislature according to a calculation of utilities. Hume, David, Enquiries, 3rd edn., Selby-Bigge, L. A. and Nidditch, P. H., Oxford, 1975, pp. 192–3, 195–6Google Scholar. Cf. also p. 210, where Hume distinguishes useful rules from ones that are arbitrary or capricious.

²⁹ Cf. Acton, 332. Utilitarianism calls for judgements according to predicted future consequences. But utilitarianism may have to be backward-looking in order to be forward-looking. Long possession in the past contributes to stability and effectiveness in the future. This conclusion fits Hume's argument that reasonable thinking must assume the future will resemble the past: therefore a utilitarian will pay close attention to the past, and sometimes ascribe moral weight to past practice, even when making future- orientated judgements. In one passage, however, Hume oddly ascribes a rule reflecting a ‘preference of the future to the past” to an imaginative or ‘capricious” source; Enquiries, p. 210n.Google Scholar

³⁰ Hume, , Enquiries, p. 44.Google Scholar

³¹ Blackstone, William, Commentaries on the Laws of England, facsimile of 1st edn., 4 vols., Chicago, 1979, ii. 263–6.Google Scholar

³² Burke, Edmund, ‘Speech on … the State of the Representation of the Commons in Parliament” (1782), The Writings and Speeches of Edmund Burke, 12 vols., Boston, 1901, vii. 94.Google Scholar

³³ Hume, , ‘Of the Original Contract”, Essays, p. 470.Google Scholar

³⁴ Burke therefore should not be seen as a common law theorist, according to Lucas, , ‘Burke's Doctrine of Prescription”.Google Scholar

³⁵ That any political institution is literally ‘immemorial” seems so implausible or unlikely that one is inclined to read the claim as ideological or rhetorical, designed to strengthen a more limited durational claim. Burke was well aware of the historical changes that had produced the British constitution that was in effect in 1782. Vattel recognizes ‘immemorial” as well as ‘ordinary” prescription. See iii. 158. The oddity of Blackstone (or of common law) lies in omitting the ordinary sense of the term.

³⁶ Grotius, , ii. 220.Google Scholar

³⁷ Miller, David, Philosophy and Ideology in Hume's Political Thought, Oxford, 1981, p. 202Google Scholar, argues that Burke in contrast to Hume sees the social order as natural. This matter is more complex than he suggests, however. Burke regards prescription – an important ingredient in social order – as both ordained by natural law and as corresponding to people's natural sentiments and imagination. Hume agrees on the latter point.

³⁸ Pufendorf, Bk IV, eh. 12 (in Oldfather, ed., ii. 647).Google Scholar

³⁹ Smith, , pp. 135, 462Google Scholar; Hume, , ‘Of the Populousness of Ancient Nations”, Essays, p. 406.Google Scholar

⁴⁰ Hume, , ‘Of the Original Contract”, Essays, pp. 474–5.Google Scholar

⁴¹ Burke, Edmund, A Letter to a Noble Lord (1796), Further Reflections on the Revolution in France, ed. Ritchie, Daniel E., Indianapolis, 1992, p. 516.Google Scholar

⁴² Burke, Edmund, Reflections on the Revolution in France, ed. O'Brien, C., Harmondsworth, 1968, p. 206.Google Scholar

⁴³ The Correspondence of Edmund Burke, ed. Copeland, Thomas W. et al. , 10 vols., Chicago, 1958–1978, vi. 405.Google Scholar

⁴⁴ Smith, , pp. 136, 484Google Scholar. Smith also mentions the Roman version of common law marriage as a case where time or usage generates right: if a man lived with a woman for a year and a day, ‘she was his by prescription” (p. 440).

⁴⁵ Burke, Edmund, ‘Speeches in the Impeachment of Warren Hastings … Speech in Opening the Impeachment”, Writings and Speeches, ix. 401Google Scholar. Cf. Burke, , Reflections, p. 103Google Scholar. Hume criticizes James I for tearing off ‘that sacred veil which had hitherto covered the English constitution”. The History of England, 6 vols., Boston, 1849, iv. 466.Google Scholar

⁴⁶ Hume, , ‘Of the Original Contract”, Essays, p. 471.Google Scholar

⁴⁷ Ibid., p. 482.

⁴⁸ Vattel argues that the ‘good faith” and ‘presumption of abandonment” conditions do apply to political prescription; this is why sovereigns display the arms of provinces they have lost but still claim (iii. 157–8). Retention of these conditions, however, would defeat the purpose to which Hume puts his rule of long possession.

⁴⁹ Smith, , p. 37Google Scholar. Frederick's claim on Silesia had of course launched the War of the Austrian Succession twenty years before Smith's lectures; Great Britain had fought against him.

⁵⁰ Hume, , ‘Of the Coalition of Parties”, Essays, p. 498.Google Scholar

⁵¹ ‘Contemporary political theory, of both Whigs and Tories, was out-of-date and backward-looking”. Forbes, Duncan, Hume's Philosophical Politics, Cambridge, 1975, p. 92.Google Scholar

⁵⁸ Forbes most plainly states that the object of Hume's ‘post-revolutionary, establishment political philosophy” was to provide a ‘respectable intellectual foundation” for the Revolution Settlement and the Hanoverian succession (p. 91).

⁵³ Hume, , History, ii. 426–8Google Scholar, for this and the following. The phraseology of the quoted passage clearly alludes to 1688. In ‘Of the Original Contract”, Essays, p. 473Google Scholar, Hume says that Henry IV had no title except parliamentary election; his reluctance to emphasize this shows the weakness of contract theory among ordinary people.

⁵⁴ Hume, , ‘Of the Original Contract”, Essays, pp. 478–9Google Scholar. In another passage in which he compares the two cases, Hume suggests that it was ‘love and esteem” for the claimant of the ‘ancient royal family”, rather than abstract principle, that motivated Yorkists as well as contemporary Jacobites; Hume, , ‘Of the Parties of Great Britain”. Essays, p. 614.Google Scholar

⁵⁵ Hume, , History, iii. 1–4.Google Scholar

⁵⁶ Hume, , History, iii, 82Google Scholar. Since Henry VII's title was ‘undoubted”, Hume finds ‘remarkable” his constant suspicion of anyone ‘allied to the crown”, who might, like the Duke of Buckingham in 1520, be able to advance an ancient hereditary claim. History, iii. 126–7.Google Scholar

⁵⁷ Hume, , History, v. 38.Google Scholar

⁵⁸ Hume, , History, v. 197.Google Scholar

⁵⁹ Hume says elsewhere, however, that the parliamentary leaders (against James I) were actually concerned more about ‘future consequences” than ‘former precedents”, and that they ‘less aspired at maintaining the ancient constitution, than at establishing a new one”. Hume, , History, iv. 415–16.Google Scholar

⁶⁰ Hume, , ‘Of the Parties of Great Britain”, Essays, pp. 67–8Google Scholar. The ‘lovers of liberty”, according to Hume, defended the privileges of Parliament by ‘prescription, and the practice of so many ages” (History, iv. 468)Google Scholar. The intransigence of this conflict was due in part to the fact that both sides could appeal to customary or prescriptive right. The operation of prescription is well illustrated by the most important parliamentary privilege, that of consenting to taxation. This principle, Hume points out, developed under the Lancastrian kings, who were forced to obtain the consent of Parliament because of their ‘doubtful” title to the throne: ‘The rule was then fixed, and could not safely be broken afterwards, even by more absolute princes”. History, ii. 373.Google Scholar

⁶¹ Hume, , History, v. 127.Google Scholar

⁶² Hume, , ‘Of the Protestant Succession”, Essays, pp. 503–7.Google Scholar

⁶³ In his discussion of the rule of positive law, Hume makes clear that he means primarily ‘fundamental laws; which are suppos'd to be inalterable by the will of the sovereign”. In an apparent reference to the Stuart case, he says that if the legislature suddenly abrogated the old laws and introduced a new constitution, people would not feel bound to obey unless the change had ‘an evident tendency to the public good” (T, 561). Utilitarian calculations, in other words, would override positive law in determining allegiance.

⁶⁴ Hume, , History, ii. 314.Google Scholar

⁶⁵ Hume, , ‘Of the Protestant Succession”, Essays, pp. 508, 511Google Scholar. This essay was published in 1748, sixty years (as Hume remarks) after the Revolution, and after the defeat of the 1745 rebellion ended the Jacobite challenge. Its usefulness for justifying the existing British monarchy presumably also figured in Smith's defence of a prescriptive right to government, cited above.

⁶⁶ Cf. Burke's converse argument that an insistence on the necessity of popular consent would ‘attaint and disable backwards all the kings that have reigned before the Revolution”. Reflections, p. 107.Google Scholar