9 Stair’s title ‘Of Liberty and Servitude’

John D. Ford

I

The problem with the title ‘Of Liberty and Servitude’ in James Dal­rymple, first Viscount Stair’s The Institutions of the Law of Scotland, is to explain what it is doing there.^[271] On the one hand, Stair expressed himself satisfied that the institution of slavery had little relevance in seventeenth­century Europe, and none at all in the Scotland of his day.

Otherwise the nearest Christian Europe came to practising slavery was in recognising the status of adscripticii glebae. ‘Such are the English vil­lains’, Stair remarked, ‘but in Scotland there is no such thing.’ Although he did concede that until recently there had been ‘a kind of Bondage, called Man-rent’, he added that those subject to manrent ‘were rather in clientela, than in Bondage’, and pointed out that the institution had since been abolished by both statute and custom (2.12/1.2.12).^[273] In Scotland there was no ‘middle condition’ between ingenui and servi (2.13-14/ 1.2.13-14).

On the other hand, if slavery was obsolete in Scotland, that might at least have been taken to imply that liberty was the common condition of the Scottish people. Again following Justinian and Florentinus,^[276] Stair defined liberty as ‘a Natural Faculty, to do that which every man pleaseth, unless he be hindered by Law or Force’ (2.1/1.2.1). As a former Cam­bridge Regius used to observe, that definition appears to make everyone free, and as such fails to provide an adequate basis for contrasting liberty with servitude.^[277] Its value, as Stair understood it, lay more in contrasting liberty with coercion, whether by restraint or constraint (2.4/1.2.4), and it was with this conception of liberty that he was primarily concerned in his title.

Once more, however, he was forced to concede rather lamely that ‘The Customs of this Nation have little peculiar, in relation to Liberty directly, but the injuries done against the same, especially constraint, fall under the consideration of Delinquencies, and are so punished’ (2.16/1.2.16). Whereas special actions for wrongful imprisonment were available under the laws of ancient Rome or Israel and of modern England, the Scottish courts punished incarceration as a crime, and awarded civil damages, ‘according to the Circumstances and Attrocity, and according to Equity’. It was in a later title on ‘Reparation, whereof Delinquence, and Damages thence Arising’ that Stair discussed liberty as one of several ‘interests’ protected by the general law of delict, also dealing there with the more specific delict of extortion by force or fear (9.4 and 8/1.9.4 and 8).^[278]

So why devote a separate title to liberty and servitude? One answer might be that Stair was himself constrained by the conventions of the institutional tradition in which he was working: after writing about justice and law and about ius naturale, ius gentium and ius civile in his opening title, it was only to be expected that he would start his account of the law of persons with the distinction between freemen and slaves.

Reflecting on that shift from persons to personal rights, A. H. Camp­bell demonstrated over thirty years ago how examination of the structure of the Institutions can afford important insights into the structure of Stair’s thought.^[280] According to Professor Campbell, the title ‘Of Liberty and Servitude’, far from being a lifeless witness to the force of the institutional tradition, formed the cornerstone of Stair’s treatment of personal rights and connected his work with the most recent advances in legal and political theory. The key to understanding what the title was doing in the Institutions lay in realising that in the succeeding titles Stair was ‘presenting obligations less in their aspect of rights than as limitations upon the right of liberty’.¹¹ In keeping with the burgeoning natural rights theories of the seventeenth century, Stair was arguing that men were at liberty to do as they pleased except where constrained by their obedience to God or by their voluntary undertakings to each other.

Now Peter Stein has not only had occasion to examine the structure of Stair’s Institutions in his work on the transmission of the institutional system,^[281] but has also commented several times on Stair’s part in the development of legal thought in Scotland.^[282] In doing so he has warned of the tension that must have existed between the new thinking on ius naturale and Stair’s Calvinist principles.^[283] What follows is an attempt to pay heed to that warning, first by looking more closely at the suggestion that Stair viewed liberty as a natural right in the modern sense, then by looking in an appropriate Presbyterian source for an alternative expla­nation for the inclusion of his title.

II

Professor Campbell’s contention was that Stair had learned to conceive of liberty as a natural right and of law as a body of obligations restricting the scope of liberty from Samuel Pufendorf’s De lure Naturae et Gentium, another treatise in which consideration of man’s natural liberty preceded consideration of the general duties of humanity and of the duties added by human agreement.^[284] Although there was no direct evidence of Stair’s acquaintance with Pufendorf, the similarities in structure between the Institutions and the De lure Naturae made it seem more likely that Stair had read Pufendorf’s book than that the two writers had drawn from a common source. What we now know, however, is that manuscript copies of the Institutions were made a full decade before the appearance of the De lure Naturae in 1672. To sustain the thesis that Stair was thinking along the same lines as Pufendorf we have to look for a common source after all.^[285]

In fact, Professor Campbell was able to cite one other writer who contrasted liberty with obligation in the manner ascribed to Stair, a writer with whom Pufendorf at least was undoubtedly familiar. In the chapter of his Leviathan ‘Of the First and Second Natural! Lawes, and of Contracts’ Thomas Hobbes had made the often-quoted remark that:

though they that speak of this subject, use to confound Jus, and Lex, Right and Law; yet they ought to be distinguished; because right, consisteth in liberty to do, or to forbeare; Whereas law, determineth, and bindeth to one of them: so that Law, and Right, differ as much, as Obligation, and Liberty; which in one and the same matter are inconsistent.^{New Roman",serif;color:black'>[286]}

Immediately before this Hobbes had defined liberty as ‘the absence of externall Impediments’, explaining in a later chapter ‘Of the Liberty of Subjects’ that the term could be used with reference to inanimate objects as well as to rational beings.^[287] In the case of men, however, ‘Artificial! Chains, called Civill Lawes', could be added by agreement,^[288] and Hobbes argued in the earlier chapter that the first and second laws of nature required men to create these artificial bonds by contract.

Following A. P. d’Entreves, Profesor Campbell regarded Hobbes’ distinction between right and law as a radical reworking of the traditional distinction between ius as facultas agendi - subjective right - and ius as norma agendi - objective right.²¹ Where previously it had been said that a person had a right to do something when it was right for him to do it, and thus when others had a duty to allow him to do it, now it was being said that he had a right to do the thing unless he himself was bound by a duty. More recently Richard Tuck has stressed that the new rights theories were concerned with the individual’s sovereignty over his own domain.²² The crucial point for Hobbes was that although men were bound by the law of nature to preserve themselves, they had some freedom in deciding how best that might be done.^[290] The individual’s freedom of choice was his natural right of liberty, a moral residue untouched by natural and civil laws; what was chosen consistently with those laws was necessarily within the individual’s right.

The new theorists represented by Hobbes also effected a radical rewor­king of the traditional definition of liberty. If libertas was still man’s naturalis facultas of doing what he pleased except where prevented by vis, it was no longer limited by ius; rather, liberty itself was ius, restricted by vis and lex.^[291] In so far as men who naturally defended themselves against attack had the choice of the best means of defence, they could be said to possess a liberty or right.

Now Stair clearly could have read the Leviathan before he wrote the Institutions, but he never mentioned Hobbes by name, and Professor Campbell was certainly correct in supposing that he would not have had much sympathy with many of Hobbes’ ideas. In a later treatise on physics he dismissed the ‘Horrendus Hobbesius’ as an atheist ‘who subverted all moral and political principles, and substituted in their place natural force and human agreement as the first principles of morality, society and political government’.^[292] These words might well be read as a resounding rejection of the new thinking, yet Stair was clearly indebted to another leading rights theorist, for he made no secret of his admiration for Hugo Grotius’ De lure Belli ac Pads.^[293] Although Professor Campbell could see no parallel between the structure of the Institutions and the arrangement of the De lure Belli, Grotius is now acknowledged as the key figure in the emergence of the new thinking, making the vital move from saying that men naturally did what they could to defend themselves to saying that men had a natural right to do what they could to defend themselves.^[294]

For present purposes two features of this classification are especially important. First, the traditional discussion of status categories in terms of the distinctions between freemen and slaves and persons sui iuris and alieni iuris was replaced by discussion of rights over persons akin to rights over things and debts; when Grotius eventually returned to the law of persons it was in the course of an account of the acquisition of rights of all kinds.²⁹ Secondly, in accomplishing this transition Grotius did not simply replace discussion of the first distinction with treatment of the acquisition of patria potestas and of the second with treatment of the acquisition of dominica potestas, but also recognised libertas as a right capable of acquisition; like Hobbes, he believed that civil government was estab­lished when men transferred their natural rights over themselves to a ruler.³⁰

Stair’s debt to Grotius’ analysis is manifest in the opening titles of the Institutions. He accepted that a treatise on law should focus on the rights of men, that there were basically three kinds of right - ‘Liberty, Domin­ion, and Obligation’ - and that ‘all Rights consist in a Power or Faculty’ (1.21/1.1.22). Liberty in particular he described as ‘the power to dispose of our Persons, and to live where, and as we please, except in so far, as by Obedience, or Ingagement we are bound’, adding in the second title that it was a right ‘maintained by that Common received Principle in the Law of Nature, of self defence and preservation’ (2.3/1.2.3). After dealing with liberty Stair went on to present a series of titles on ‘Conjugal Obligations’, ‘Obligations between Parents and Children’ and ‘Obligations between

1987), 99, and ‘Grotius and Selden’, in J. H. Burns and M. Goldie (eds.), The Cambridge History of Political Thought, 1450-1700 (Cambridge, 1991), 499.

²⁸        De lure Belli 1.1.2-5.

²⁹        Ibid., 2.5. R. Dagger, ‘Rights’, in T. Ball, J. Farr and R. L. Hanson (eds.), Political Innovation and Conceptual Change (Cambridge, 1989), 292, shows how the language of rights came into its own only when more traditional notions of status began to prove inadequate.

³⁰        De lure Belli 1.3.8.

Tutors and Curators, and their Pupils and Minors’ (4-6/1.4-6), in prefer­ence to the usual titles de statu hominum. That he had decided to focus on rights, and that he had learned the language of rights from Grotius, can hardly be doubted. What should be doubted, however, is his full endorse­ment of the new thinking on ius naturale.

The first cause for concern is his statement that liberty was maintained by a common received principle in the law of nature. Although Stair remarked in the extract just quoted from the first title that liberty was limited by obedience or engagement, he stated his position with greater precision in the second title: ‘This Right ariseth from that Principle of Freedom, that man hath of himself, and of other things beside man, to do in relation thereto, as he pleaseth, except where he is tyed thereunto by his Obedience or Ingagement’ (2.3/1.2.3). The right of liberty, but the prin­ciple of freedom: Stair had already presented freedom, obedience and engagement as the ‘first Principles of Equity’, three common principles of natural law providing the foundations of the rights of men (1.17-20/ 1.1.18-21), yet distinct from the rights of men (1.21/1.1.22). It was not liberty but freedom - of which self-defence was a facet - that was limited by the obligations of obedience and engagement. Stair understood that liberty was limited by restraint and constraint (2.4/1.2.4).

He went on in the second title to list several possible bases for legitimate restraint or constraint, such as the failure of those under the control of spouses, parents or guardians to fulfil their obediential duties (2.5/1.2.5), the commission of a delict (2.6/1.2.6) or the breach of an engagement (2.7/1.2.7). In each case careful reading confirms that the point was not that the person’s liberty was limited by the obligation but that his liberty was limited by the coercion which would result from failure to fulfil the obligation. Though the list ran parallel to the order of the ensuing titles, those titles were concerned with examining the obligations that set limits to freedom; the restrictions on liberty were discussed in these earlier paragraphs on restraint and constraint.

Strictly speaking, then, Stair did not contrast liberty with obligation, but contrasted liberty with coercion in a general framework of law and obligation. If libertas was ius, ius libertatis was ‘the Law of Liberty’ as well as the subjective right - there was nothing here to suggest that facultas agendi had been divorced from norma agendi. Nor would it have been easy for an orthodox Calvinist to have made that division, since far from accepting that ius was the absence of force and law, Calvinists were inclined to believe that fallen men could only hope to obtain ius in conditions of force and law. To maintain, moreover, that men in the state of nature had sufficient ius to construct an appropriate system of govern­ment was to come dangerously close to saying that men could work towards their own salvation without the gracious intervention of God. Although Stair could have followed Grotius (unlike Hobbes) without being accused of concurring with an atheist, Peter Stein has warned that he would still have been adopting the views of an author who was known to have supported the Arminians in the controversy culminating at Dort.^[295]

Stair did in fact continue his list of the bases of legitimate coercion by adding after breach of engagement that ‘Liberty is diminished by subject­ion unto Authority’ (2.8/1.2.8), and finally that ‘Liberty is wholly taken off by Bondage, Slavery, or Servitude’ (2.9/1.2.9), with the clear impli­cation that both civil government and slavery resulted from engagement. But at no point did he suggest that men created authority by transferring their natural rights to a ruler. His riposte to Hobbes remains significant, and I have argued elsewhere that his views on the origins of government owed less to the new rights theories than to the Presbyterian theory expounded in Samuel Rutherford’s Lex, Rex: The Law and the Prince.^[296]

One other reason for doubting Stair’s full endorsement of the new thinking is the separation of his treatment of liberty from his titles on the rights of husbands and wives, parents and children, and guardians and wards. Whereas Grotius had included the relations of masters and ser­vants in his title De Acquisitione Originaria luris in Personas, Stair dealt first with liberty and servitude and only then, after a fresh introductory title on ‘Obligations in General’ (3/1.3), with persona! rights. One expla­nation might be that his thinking was even more advanced than Grotius’, that he was drawing an analytical distinction between the liberty correla­tive (in W. N. Hohfeld’s terms) to ‘no-right’ and the personal rights correlative to obligations in others. But to the danger of attributing an anti-Calvinist opinion to Stair this adds the danger of anachronism.^[297] An alternative would be to conclude that the title ‘Of Liberty and Servitude’ was still essentially de statu hominum. That possibility will be considered in the fourth section of this essay. We turn now to Rutherford’s Lex, Rex in search of an ideological context in which it might have made sense to talk of government, like servitude, as an encroachment on man’s natural right of liberty, yet without it being implied that liberty was, as Grotius put it, a moral quality of the person.

in

When Samuel Rutherford first started working on his Lex, Rex he was persuaded by another Presbyterian divine to abandon the project as one ‘proper for jurisconsults, lawyers and politicians’, only to resume the task at the instigation of Archibald Johnston of Wariston, an Edinburgh advocate who was later to sit on the Bench with Stair around the time he began writing the Institutions?⁴ Johnston, however, does not appear to have been the sort of jurisconsult, lawyer or politician referred to.^{[298] [299]} By ‘the law’ Rutherford understood the learned law, by ‘jurisconsults’ and ‘lawyers’ civilians and canonists like Bartolus, Baldus, Petrus Rebuffus, Covarruvias, and Vazquez, and by ‘politicians’ jurists like Bodin and Althusius. Though conscious of the distance between the disciplines of divinity and law,^[300] Rutherford read these authors as reliable guides to the universal jurisprudence with which scholastic Natural lawyers were equally concerned. In other words, he envisaged himself working in the same general area as the new rights theorists.

Johnston’s encouragement apart, the other reason why Rutherford decided to complete the Lex, Rex was the appearance of John Maxwell’s Sacro-sancta Regum Maiestas.³¹ It was Maxwell’s avowed aim to under­mine the ‘Puritanicall, Jesuiticall, Antimonarchicall’ thesis that civil government was a human institution established by positive law, and to defend the rival thesis that ‘the King is onely and immediately dependent from Almighty God, the King of Kings, and Lord of Lords, and indepen­dent in his Soveraigntie and Power, from the Communitie’.³⁸ The king ruled iure divino, and his rule could be shown to be necessary de iure naturae. Maxwell was prepared to concede that the people had the task of designating a particular person to be king, but he insisted that ‘the reall constitution, the collation of soveraignty and Royalty is immediately from God’.³⁹ In no sense could it be claimed that the king derived his auth­ority from the people.⁴⁰ Not only did the people lack the power of governing themselves, but they did not even have the power of submit­ting actively to government. It could hardly be denied by orthodox Cal­vinists that ‘every singular and individual! person, by corruption and selfe love hath naturalem repugnantiam, a natural aversenesse and repug­nancy to submit to any’.⁴¹ The most that could be said was that the people had a ‘potestas passiva regiminis, a capacity or susceptibility to be governed’.

It must have seemed a bitter irony to the Presbyterians to be accused of taking the Jesuit line by a reputedly Arminian bishop.⁴² Rutherford, who had established his academic reputation with a treatise on divine grace written ‘against Jacobus Arminius and his followers, and the Jesu­its’,⁴³ was as open as Maxwell in setting his aim: where Maxwell had given his book the English title The Sacred and Royall Prerogative of Christian Kings, Rutherford gave his the subtitle A Dispute for the Just Prerogative of King and People. It was Rutherford’s purpose to show that both the king and the people participated in the political process lure divino or naturali. To begin with he pointed out that no one contested the fundamental principle that ‘All civill power is immediately from God in its root.’⁴⁴ But where Rutherford had to admit that the Presbyterians came close to the Jesuits was in recognising that the people played an active part in the appointment of the king. Though all forms of govern­ment were ‘instituted’ by God, he argued, particular governments were ‘constituted’ by the popular choice of one form in preference to others. Maxwell had said that the people were only really capable of ‘con­sensus passivus, a necessary necessitated consent', a scarcely voluntary

³⁹ Ibid., 20-3. Ibid., 90-1.

⁴¹       Calvin himself had observed in his sermons on Job, quoted in C. Hill, Religion and Politics in Seventeenth Century England (Brighton, 1986), 123, that ‘The nature of man is such that every man would be lord and master over his neighbours, and no man by good will will be subject.’

⁴²        N. Tyacke, Anti-Calvinists (Oxford, 1987), 234-5. Dr Tyacke mentions Grotius’ role in the introduction of Arminianism into Britain at pp. 20, 68, 70 and 119 of his book. Further discussion can be found in A. W. Harrison, The Beginnings of Arminianism (London, 1926), 200-3, W. S. H. Knight, The Life and Works of Hugo Grotius (London, 1925), 55-60 and 127-57, P. White, Predestination, Policy and Polemic (Cambridge, 1992), 172-8 and 205-7, and H. R. Trevor-Roper, ‘Hugo Grotius and England’, in From Counter-Reformation to Glorious Revolution (London, 1992), 47.

⁴³        Exercitationes Apologeticae pro Divina Gratia (Amsterdam, 1636), long title.

⁴⁴        Lex Rex, 1-2. For a fuller account of Rutherford’s argument see J. D. Ford, 'Lex, Rex, Justo Posita: Samuel Rutherford on the Origins of Government’, in R. A. Mason (ed.), Scots and Britons (Cambridge, forthcoming); and for differing perspectives W. M. Camp­bell, ‘Lex Rex and its Author’ (1941) 7 Records of the Scottish Church History Society 204; and I. M. Smart, ‘The Political Ideas of the Scottish Covenanters, 1638-88’ (1980) 1 History of Political Thought 167, at 175-80. submission elicited by force or constraint.^[301] In contrast, Rutherford maintained that they exercised a ‘free, voluntary, and active power’.^[302]

The theological argument could be turned round against Maxwell.^{lang=EN-US style='font-size:10.0pt;font-family: "Times New Roman",serif;color:black'>[303]} Although Rutherford had to agree that the people ‘through corruption of nature are averse to submit to Governours,/or conscience sake, and as to the Lord, because the naturall man remaining in the state of nature can doe nothing that is truely good’, he still felt able to speak of a ‘naturall moral active power’ of submission, ‘though it be not Evangelically, or legally in Gods Court, good’. What, after all, was Maxwell saying? That fallen men could only submit to government with the assistance of divine grace? The fact was that all over the world and throughout most of history men had submitted to government voluntarily, so that Maxwell could only be claiming that the grace essential to faith and to the works that were the fruits of faith was available to all those who would receive it. As expected, it was Maxwell who was taking the Jesuit and Arminian line that the submission of the people was ‘not naturall, but done by the helpe of universall grace’.

Here we come to the polemical crux of Rutherford’s theory. On the one hand, he wished to argue against Maxwell and like-minded royalists that the people had an active part to play in the establishment and mainte­nance of godly government, that they too had a just prerogative. On the other hand, in response to the same critics he wished to advance his argument without attributing to men in the state of nature capabilities for just living which they could only be said to have had in the state of grace. To a considerable degree the Lex, Rex represents a sustained struggle to find a language in which it could be claimed that men had by nature powers which were properly supernatural. Whether Rutherford suc­ceeded in his task need not detain us, nor need we attempt to identify all the different languages he used. What matters for the moment is that we find here one context in which it might well have made sense to talk of natural rights while still denying that men were endowed with a natural faculty enabling them to act lawfully. It might have made sense, that is, to try out the language of rights even if what was said in that language could not have made perfect sense.

In the opening pages of his book Rutherford borrowed from Fernando Vazquez (also one of Grotius’ sources) the proposition that civil govern­ment ‘hath its rise from a positive and secundary law of Nations, and not from the law of pure Nature’’.⁴³ There were two sides to this claim. In the

first place, Rutherford was arguing that since all men were born ‘equally free’, civil government was in a way ‘Artificial! and Positive’, that govern­ment in effect involved ‘some servitude, whereof Nature from the womb hath freed us’. In the second place, however, he was trying to show that it was also grounded on a law of nature, ‘which Lawyers call, secundario jus naturale, or jus gentium secundariunj, namely the precept that it was lawful vim vi repellere. He explained that men were inclined by an ‘instinct of nature’ to defend themselves, which meant both that they were not inclined to submit individually to coercive power, and that they were inclined to agree collectively to the constitution of coercive power as the best means of defending themselves.

In this passage Rutherford talked of men resigning their liberty to the king and of the people devolving their power. He made use of similar vocabulary in a later chapter headed ‘Whether or no Royall Dignitie have its Spring from Nature, and how that is True (Every Man is Born Free) and how Servitude is Contrary to Nature’.⁴⁹ He acknowledged there that some forms of subjection were indeed purely natural, above all the subordination of children to their parents. Civil government, on the other hand, was to some extent contrary to nature, and once again Rutherford used the imagery of liberty and servitude to press his message home. ‘The originall of servitude’, he observed (citing the Institutes), was that ‘when men were taken in warre, to eschew a greater evill, even death, the captives were willing to undergoe a lesse evill, slaverie.' This, of course, was a standard misreading of the text from Florentinus in which the captor was said to preserve the lives of his prisoners, designed to emphasise that while the people naturally did what was necessary to save themselves, their consent to an intrinsically unnatural condition was also required.

Not surprisingly, Dr Tuck has concluded that Rutherford came as close as any Presbyterian writer to espousing a natural rights theory.⁵⁰ Close, but not close enough, for Rutherford made it plain that he did not equate man’s natural liberty with the power of government.⁵¹ What he was dealing with here was the people’s power of submitting to government, not a power of self-government that could be transferred to the ruler. Put shortly, Rutherford’s contention was that the people ruled themselves by submitting to the rule of God’s vicegerents. It was natural for the people to submit to the rule of those placed in authority over them, just as children naturally submitted to the rule of their parents, wives to the rule of their husbands.⁵² But not all forms of subjection were purely natural.

the original - where ius naturale was said to be common to all animals - but not in the paraphrase, where that point was omitted.

⁴⁹ Lex, Rex, 89-96.              ⁵⁰ Natural Rights Theories, 145.              ⁵¹ Lex, Rex, 87 and 151.

⁵²        Ibid., Preface, 6, 111, 319.

That it was lawful vim vi repellere proved that men were not always required to submit passively to coercion. The people had to determine for themselves where their right of self-defence ended and their duty of obedience started.

The value of the language of rights therefore lay in the facility it provided for stressing the free, voluntary and active character of the people’s part in politics. None the less, Rutherford was conscious that this sort of language could be seriously misleading:

Individual! persons in creating a Magistrate, doth not properly surrender their right which can be called a right; for they do but surrender their power of doing violence to these of their fellows in that same Communitie; so as they shall not now have Morall power to do injuries without punishment; and this is not right or libertie properly, but servitude; for a power to do violence and injuries, is not liberty, but servitude and bondage.^[304]

A moral power to do injuries? Rutherford was alluding here to a distinc­tion commonly drawn by Calvinist writers between the morality of the state of nature - the condition of unregenerate men, or ‘naturall Mora­lists', as Rutherford sometimes called them - and the virtue of the state of grace - the condition of the elect, those destined to renewal and fulfilment as viri.^[305] In the state of nature men were sometimes moved by instinct to perform deeds in external conformity with the law, such as defending themselves by violence or by submitting to government, but this fell far short of the willing obedience offered by those in the state of grace. The conduct of ‘morall and naturall’ men, in Rutherford’s terms, was factum as opposed to ius. Indeed, where the instinct of self-defence was con­cerned it was more iniuria than ius.

What made it plausible to talk of rights was simply the absence of any threat of punishment, an absence that seemed to entail a measure of individual liberty. From Rutherford’s perspective, however, a negative conception of liberty like this was in danger of obscuring the genuine character of liberty as the freedom to participate in the godly life. As participation in the godly life was only possible in the setting of a Christian polity, it followed that man’s so-called liberty was really servi­tude. Although it was Rutherford’s opinion that the truly Christian polity could not be built without the free and active participation of the people, he never questioned the more fundamental assumption that the godly life could not be achieved without the aid of executive authority. The coercive apparatus of church and state served both to compel external obedience from the reprobate and to provide the discipline necessary to habituate the elect to virtue.

Like many Calvinist writers, Rutherford was striving to put into words an elusive vision of a Christian polity in which believers would have the opportunity to offer up to God the willing obedience that was more acceptable to him than sacrifice. Willing obedience was by definition the opposite of coerced obedience, yet it had to be acknowledged that obedi­ence was impossible without a measure of coercion. Thus although the language of rights could be used to mark the limits of coercion and to describe the active and voluntary participation of the people in govern­ment, it had to be admitted that ius was only to be looked for under government. Moreover, the term ius was always bound to have objective overtones, less free choice than free obedience - at one place Rutherford actually wrote of ‘the right of servants to obey’ their masters^[306] - and properly speaking it was quite inaccurate to apply the term ius to the moral conduct of the reprobate.

Now here we surely do find a context in which Stair’s use of the language of rights begins to make sense. Here we find a line of thought in which government, like servitude, was regarded as an encroachment on liberty, yet with liberty opposed to coercion, not obligation; a manner of speaking in which man was said to have a natural right of liberty without it being implied that whatever he did in the exercise of his liberty was necessarily lawful. The right of liberty was still grounded on the principle of self-defence, it is true, and W. M. Gordon has pointed out that Stair’s citations from Cicero and Gaius in support of the principle may well have been borrowed from Grotius.^{[307] [308]} If so, however, what seems interesting for our purposes is Stair’s omission of Grotius’ next reference, to the text in which Florentinus remarked that whatever a person did to protect himself could be said to be done hire.⁵¹ Stair added instead that the principle of self-defence was ‘only to be extended to private and unlawful violence’ (1.3/1.2.3). Like Rutherford, he simply took the principle to mark the limits of legitimate coercion.

After defining restraint and constraint (2.4/1.2.4), Stair went on as we have seen to list the bases of legitimate coercion (2.5-9/1.2.5-9). On the one hand, he indicated that it was no encroachment on liberty to restrain a person from breach of an obediential duty or engagement, or to constrain him to performance. On the other hand, while he understood infringement of the law to be a necessary condition of legitimate coercion, he did not consider it sufficient of itself. No more than Rutherford did Stair subscribe to the opinion that all men had authority to enforce the law of nature. As he later explained, the authority of fathers over their families, initially of husbands over their wives, was ‘the only Natural Authority and Government, which had in it self all Authority, Public, Private, Civil and Criminal, till by Humane Constitution, and Divine Approbation, most of that power is now devolved into Magistracy’ (5.6/1.5.6).⁵⁸ It was therefore convenient to deal with the enforcement of the law in relation to the family before commenting on the coercive power of civil government.

All this was perfectly consistent with Rutherford’s thinking, with the exception of Stair’s use of the expression ‘Divine Approbation’ to des­cribe God’s institution of government. Rutherford disliked the expression because it seemed to diminish God’s role in creating government and to impute undue freedom to men.⁵⁹ It was against ‘learned and pious’ authors like Rutherford that Stair sought to defend the equitable prin­ciple of freedom in his opening title, insisting that where God had neither expressly enjoined nor prohibited an activity men were free to decide for themselves what was most conducive to the glory of God and the edifi­cation of each other (1.19/1.1.20). We cannot explore this argument further here,⁶⁰ crucial as it was to Stair’s enterprise, but it needs to be mentioned because it connects with something he said in relation to liberty:

in matters of utility and profile, where the Natural Liberty is not hemmed in with an Obligation, there, unless by his own delinquence or consent, man cannot justly be restrained, much less constrained upon pretence of his utility or profile: for Liberty is far preferable to profile, and in the matter of utility, every man is left to his own choice, and cannot without injury to God and Man, be hindered to do what he pleaseth, or be compelled to do what he pleaseth not, in things wherein he is free. (2.5/1.2.5)

Note first that Stair was again talking loosely of liberty being hemmed in by obligation: he clearly meant that liberty was hemmed in by the lawful coercion used to enforce man’s obligations. Note too that although Stair

⁵⁸       See too 4 pr./1.4 pr.; 1.9.2 may seem to contradict this in editions later than the second, but not in the editions for which Stair himself was responsible.

⁵⁹        Lex, Rex, 5-9, 17-20 and 416.

⁶⁰        The argument was examined in a paper I presented to a seminar at the Centre for Criminology and the Social and Philosophical Study of Law at Edinburgh University in 1991. The background to Stair’s three principles of equity will be examined in J.D. Ford, ‘Conformity in Conscience: The Structure of the Perth Articles Debate in Scotland, 1618-38’, forthcoming in the Journal of Ecclesiastical History, and ‘The Lawful Bonds of Scottish Society: The Five Articles of Perth, the Negative Confession and the National Covenant’, forthcoming in the Historical Journal. Details of Stair’s reaction should be published in the not too distant future. regarded freedom as the absence of obedience and engagement, he did not regard it as the absence of duty: he had already explained that in the area of freedom men were bound by duties of expediency (1.19/1.1.20). His argument here was that liberty was preferable to profit, that the expedi­ency of enforcing particular actions in this doubtful area would be outweighed by the expediency of leaving men to make up their own minds. What they chose to do might sometimes involve injury to God and man, yet it was most conducive to divine glory and human edification to let them have their choice.

The right of liberty was thus correlative to the duty of expediency: the point was not so much that men had a natural right to do what they pleased as that others had a natural obligation to allow them to do what they pleased.^[309] Nor was Stair anxious to show that governments would have to derive their authority from the consent of the governed. Although he suggested in the passage just quoted that no one could be coerced in the area of expediency ‘unless by his own delinquence or consent’, he maintained elsewhere that the heads of families, from whom power was devolved on civil governors, did have authority to compel those under their control to do what they believed to be most conducive to the common good (4.3/1.4.9). If Stair agreed with Ruther­ford that it was necessary for the people to consent to the transfer of authority from family heads to civil rulers, he also agreed that the authority exercised by rulers was not itself derived from the people’s consent.

IV

Stair’s use of the language of rights has now become more intelligible, but it is still not entirely clear why he included his title ‘Of Liberty and Servitude’ in the Institutions. Attention has focused in the last two sections on his interpretation of Florentinus’ definition of liberty as the opposite of coercion, yet the fact is that Stair only needed seven of the sixteen paragraphs in his title to make the contrast (2.3-9/1.2.3-9), and it is not without significance that we have had little cause so far to examine the opening two paragraphs, in which he set out the definition and distinguished liberty from dominion and obligation. The reason is that apart from quoting the Roman definition Stair was more concerned there with Florentinus’ other contrast between liberty and servitude. It was to the elucidation of this other contrast that he devoted the second half of his title (2.9-15/1.2.9-15), and we have still to see why he did so. After all, to make the point that government like servitude was an encroachment on man’s natural liberty it would surely have been enough to have added servitude to the list of bases of coercion, without going on to elaborate on its characteristics and variants. Besides, it is by no means obvious why it should have been thought necessary to make an essentially political point in a treatise on private law.

Though it is more obvious why Rutherford should have made the point, even in his case it had the serious drawback that assimilating submission to government with submission to slavery tended to imply that once the people had submitted, their ruler would exercise absolute authority over them. That, of course, was precisely what Rutherford wished to deny. As a means of doing so the conventions of political theory suggested a further comparison between the powers of masters over their slaves and of fathers over their children,^[310] a potentially felicitous manoeuvre, since likening kings to fathers had long been envisaged as a way of stressing the care and affection kings owed to their subjects.^[311] Calvin himself, moreover, had used this sort of comparison to distinguish between the servitude of those left under the yoke of the law and the willing obedience of the regenerate: the former came before God as a master to receive a penalty for their failure to perform his assigned tasks, while the latter approached him as an indulgent parent to receive a blessing for their earnest though imperfect endeavours.^[312]

For Rutherford, however, there was the additional problem that many of his royalist opponents, John Maxwell amongst them,^[313] were advancing the patriarchalist argument that the power of the king could be shown to come immediately from God because it was identical with the natural power of fathers over their families. To say that kings were more like fathers than masters might therefore have involved Rutherford in making a dangerous concession, especially since he already accepted that the constitution of civil government did in practice amount to a shift from paternal to royal rule.^[314] His solution was presented in a series of chapters in which he asked, first, ‘Whether or no the King be Univocally, or only Analogically, and by proportion a father?’, secondly, ‘Whether or no a despoticall and masterly dominion of men and things, agree to the King, because he is King?’, and thirdly, less conventionally, ‘Whether or not the Prince have properly a fiduciarie, and ministerial! power of a Tutor, Husband, Patron, Minister, head, father of a family, not of a Lord or dominator?’^[315]

In the first chapter Rutherford argued that although Aristotle and Justinian had referred to the prince as a father, he was ‘only a father Metaphorically, and by a borrowed speech',^[316] Having made that apparent, Rutherford was able to go on in the next chapter to argue that ‘The King hath no proper, masterly, or herile dominion over the subjects’, and that his power was ‘rather fiduciary and ministerial!, than masterly’, since he was to feed, rule, defend and govern his subjects ‘as the father doth his children’. The master was entitled to make use of his slaves for his own benefit, so that slaves could be bought and sold as goods, but the king was to act in his people’s interest. The king did not own his subjects, nor, as Petrus Rebuffus taught,^[317] did he own all their goods. ‘If the subjects had no proprietie in their own goods’, Rutherford observed, ‘but all were the Princes due, then the subject should not be able to make any contract of buying and selling without the King, and every subject were in the case of a slave.’ He had gleaned from his reading that in Roman law a slave could only incur a natural, not a civil, obligation, ‘because the condition of a servant, he not being suiJuris, is compared to the state of a beast’.

That comparison expressed the e^c'.,ce of servitude for Rutherford. If royal power were dominica potestas, as the royalists seemed to be claim­ing, if subjects were like slaves, ‘no better than bruit beasts’, that would mean the people obeyed the law ‘not because good and honest, but because their prince commandeth them so to do’.^[318] By contrast, Ruther­ford’s vision was of a polity in which the people would obey the law (in St Paul’s words) not only for wrath but also for conscience’ sake, which he took to mean obeying the law voluntarily because it was conceived to be the will of God. In the truly godly polity the people would obey as rational beings, consenting freemen rather than coerced slaves, and that could only happen where the king’s decrees were in keeping with God’s commandments. It followed, as Rutherford concluded in his third chapter, that ‘the Law is not the Kings own, but given to him in trust’, to be enforced for the good of the people. Though various metaphors could be used, ultimately it was best to say that ‘ The King is more properly a Tutor then a Father’, a guardian appointed in the father’s place to take care of the people and their inheritance. The inheritance - political power - was not the king’s to do with as he pleased, and like any tutor he could be called to account.

Master and slave, father and child, guardian and ward: there cannot be much doubt about the origin of Rutherford’s categories, especially given the number of citations from the Corpus luris in these chapters.^[319] The categories were closed, yet we may find it instructive to ask why Ruther­ford did not go on to explain that in Roman law a freeman was usually also a citizen.^[320] He was, after all, employing the concept of freedom to stress the equality of men at the political level, and to defend the active participation of the people in their own government. He made use of republican vocabulary elsewhere in his book,^[321] and Quentin Skinner has indicated that at least some of the things he wanted to say could have been said coherently in the language of civic humanism.^[322] Furthermore, a related language had been in use in Scotland at least since the time of the Declaration of Arbroath in 1320,^[323] a language that continued to dominate political discourse at the end of the sixteenth century.^[324]

A few moments’ reflexion, however, suggest that Rutherford would have had good reason to frame his argument in terms of natural juris­prudence. For one thing, the liberty of the citizen was by definition a civic right, not a natural right,^[325] and Rutherford was committed to meeting the episcopalians and royalists in their own terms: if the king’s prerogative were grounded on ius naturale, the same would have to be said of the people’s prerogative. Similarly, a central aim of the Lex, Rex was to maintain the principle that the king received his power from the people without denying that government had to be imposed on men from above: however free and equal the people may have been to begin with, Ruther­ford had to accept that they became subjects rather than citizens. Above all, while Rutherford defended the active participation of the people in their own government, he was not so much concerned with their involve­ment in the institutional machinery of the state as with their exercise of conscience in response to the decrees of their superiors: in so far as he took ‘the people’ to mean ordinary men and women, as opposed to the pars valentior, he was less concerned with the public practice of politics than with the private application of the law. He had in mind a polity in which governed yet autonomous individuals would take responsibility for their actions, and to that end it helped to say that freemen were sui iuris, though not citizens.

If we turn once more to the title on liberty and servitude in the Institutions we can see that Stair was moved by a similar concern. Servitude, he remarked, was

Diametrically opposite to Liberty; for as Liberty is that power, by which men are sui juris, so by Servitude, they became alieni juris, in the power of another, unto whom they became as the rest of their Goods in their Patrimony, and are possessed by them, and may be gifted, legated, sold, and otherways disposed of at their pleasure. (2.9/1.2.9)

At least in earlier law, Stair went on, masters had enjoyed ius vitae necisque over their slaves. Since slaves were ‘wholly their Masters’ they could have owned nothing - any peculium was ‘in their Masters power, and might be taken away at his pleasure’ - nor could they have incurred obligations, been party to civil actions, or been witnesses, procurators or arbiters. No wonder ‘they were accounted as no body, or as dead men’.

Could it have been a deliberate ploy to describe liberty as the power by which men were sui iuris, apparently collapsing the two distinctions between freemen and slaves and between persons sui iuris and alieni iuris into one? It is hard to be sure. Rutherford had implied that anyone alieni iuris was in the state of a beast, technically a slave. Stair seemed to indicate more clearly still that those subject to paternal or analogous power were in subjection yet sui iuris,⁷⁸ which certainly ties in neatly with

⁷⁸        In contrast, Gudelinus, De lure Novissimo 1.17, expressed the following view: ‘Surely guardianship and supervision is also a certain force and power in personam. But it is provided entirely for the favour and advantage of those who are subject to the power, nor does it detract from but rather adds to and assists their ius, whence they are yet said to be Rutherford’s theory. The move may not have been conscious, though Stair did observe in a later title that the Romans had at first erred in making the power of parents ‘almost Dominical, and the Children as Servants’ (5.11/1.5.11). Scots law, he believed, was closer to the law of nature, in which children were distinguished from slaves yet placed under the authority eventually devolved upon magistrates (5.6/1.5.6).

Since children were not like slaves it followed that their relationship with their parents was interpersonal. That meant in juridical terms that parents and children were best considered as parties to personal iura or obligationes, objective ‘bonds’ between two persons, one of whom could be said subjectively to have the right, the other to have the obligation (2.1/1.3.1). It meant in addition that the relations of husbands and wives, parents and children and guardians and wards could be dealt with along­side quasi-contractual, delictual and contractual obligations. Liberty, on the other hand, though also subjectively taken as a right correlative to obligation (and as such identified as a topic requiring discussion in the title on delict), was a right of unique significance. As Stair said at the outset, since ‘Bondage exeemeth man from the account of persons, and brings him rather in among things, quae sunt in Patrimonio nostro', liberty was not only a right distinct from dominion and obligation but was ‘the most native and delightful Right of man, without which, he is capable of no other Right’ (2.2/1.2.2). To be free was, quite simply, to be a person, a rational being capable of living in accordance with law.

The reason why the title on liberty and servitude had to be separated from the other titles on persons was thus that the relationship between master and slave was not interpersonal, and consequently was not suscep­tible of treatment in terms of personal rights and obligations - the focus was still by and large on status. The reason why the title had to be included at all was that no other relationship could be interpersonal unless the distinction between liberty and servitude was maintained. The reason why Stair insisted that there was no servitude in Scotland was not so much that he wished to state the facts as that he wished to affirm that the Presbyterian vision of the legal order was capable of achievement in Scotland.⁷⁹ While his vision differed significantly from Rutherford’s, it was still very much a modern version of the Presbyterian ideal.

It has not been possible to spend much time here on the points of disagreement between Stair and Rutherford, which may have given a

sui iuris, not to be in potestate (J.Inst. 1.13 pr.), just as citizens bound by the authority of the magistrate still are (D.50.16.215). Far different is the rationale of dominica potestas and patria potestas, which are brought about very much in favour of masters and fathers, not in favour of slaves and sons. For that reason we say that those are in potestate and alieni iuris (J.Inst. 1.8).’

⁷⁹        See again n. 4 above.

rather misleading impression of uniformity among the Presbyterians. Nevertheless, at the risk of reinforcing that impression, it may be worth closing with a brief comparison between the treatment of persons in Stair’s Institutions and the treatment in the rival Institutions of the Episco­palian royalist Sir George Mackenzie.^[326] For if the reading of Stair’s title that I have presented is sound, it ought to follow that an author of contrasting ideological commitments would take a markedly different approach.

What we find is that Mackenzie began like Stair with a title on law and justice, then started his second title by explaining that ‘Having resolved to follow Justinians method’ he would work through persons, things and actions.^[327] His second title, however, was headed ‘Of Jurisdiction and Judges in General’, and two further titles were devoted to the jurisdiction of civil magistrates before the fifth dealt with ecclesiastical dignitaries. Only then did he move on to conclude his treatment of persons with titles on marriage and guardianship, 'Having spoken fully of Persons, as they are considered in a Legal sense'. If the problem with Stair is to explain why he included a title on liberty and servitude, the problem with Mackenzie is to explain why he omitted both master and slave and parent and child, and why he dealt primarily with the jurisdiction of judges.

The omissions were accounted for in the closing sentence of Macken­zie’s section on persons:

We have little use in Scotland, of what the Institutions of the Roman Law teach, concerning slaverie, or Patria potestas, for we as Christians allow no Men to be made Slaves, that being contrare to the Christian liberty, and the Fatherly power or Patria potestas, has little effect with us; for a Child in Familie with his Father, acquires to himself and not to his Father as in the Civil Law.

Although Stair would clearly have agreed that the Roman notions of slavery and patria potestas were out of date, we may surmise that he would not have found Mackenzie’s reasons for ignoring the topics satis­factory. In the first place, the fact that patria potestas was no longer similar to dominica potestas was no reason for saying nothing about it; quite the contrary, it was precisely because children were no longer treated like slaves that their relations with their parents could be discussed in terms of right and obligation. Mackenzie apparently had trouble with a conception of paternal power which was not dominical and absolute, presumably because of its implications for his understanding of royal power. Conversely, Stair would no doubt have objected, in the second place, that although the Roman texts on slavery had limited practical significance in modem conditions they still had ideological relevance.

Yet Mackenzie also wore his politics on his sleeve. He defended his approach in the opening titles by stating that the law concerned itself with civil or ecclesiastical persons, of whom the most important ‘in a Legal sense’ were the judges vested with powers of jurisdiction.^{[328] [329]} ‘The King', he noted at the beginning of his third title, ‘is the Author, and Fountain, of all power, as any King, or Potentate, whatsoever, deryving his power from god Almighty alone, and so not from the people’, a thesis he defended at length against the Presbyterians in his lus Regium.^&i In contrast to Stair, who based his account of private law on a political theory that sought to reconcile ascending and descending principles of government, and so began by dealing with the legal status of ordinary people, Mackenzie adhered uncompromisingly to a descending principle, and so began with the legal deputies of the king deputed by God. To some extent at least we may conclude that the Scottish development of the institutional tradition was divided along party lines, as other commentators have in the past suggested,^[330] but we may do so without implying that Stair had abandoned his Calvinist convictions. Peter Stein was surely wise to be wary of that implication.