¹ The wording of this section is identical to s 47(1)(a) of the Criminal Justice and Licensing (Scotland) Act 2010 (now repealed).

² See Miller v HM Advocate [2019] HCJAC 7.

³ Miller, above n 2, para 1.

⁴ Miller, above n 2, para 8; Art 4(1) of the ECHR posits that ‘no one shall be held in slavery or servitude’.

⁵ Miller, above n 2, para 8; the wording of this definition is taken from Art 1 of the Convention on Slavery, 9 March 1927, 60 LNTS 253. This is the ‘classic’ definition of slavery, approved of by the European Court of Human Rights per Siliadin v France (Application no. 73316/01) 26/10/2005, para 122. As indicated by that court in M and Others v Italy and Bulgaria (2013) 57 EHRR 29 para 149, for a human being to be a ‘slave’ within the meaning of Art 4 of the ECHR, they must be ‘reduce[d] to an object’ over which a ‘genuine right of ownership’ is exercised by another.

⁶ Miller, above n 2, para 8.

⁷ Miller, above n 2, para 9.

⁸ ‘Dominium’, or ‘ownership’, being ‘the sovereign or primary real right’: see Erskine Institute 2, 1, 1. Scots property law – to the ‘surprise’ of Lord Hobhouse as recorded in the case of Burnett's Trustee v Grainger 2004 SC (HL) 19 – ‘is still [in the twenty-first century] based on the judicial development, albeit sophisticated, of the laws of Rome’, hence the later importance of Roman law to the development of this paper.

⁹ See eg Alves v Alves (1861) 23 D 712 and Miller, DL Carey and Irvine, DCorporeal Moveables in Scots Law (Edinburgh: W Green and Sons, 2005) para 1.12Google Scholar.

¹⁰ This is not so because, as some contend, we should not elevate ‘one of the ugliest of human perversities, slavery, to the status of “law”’ as slavery is not and cannot be a legal relationship (see JM Miller's review of A Watson's Roman Slave Law (1988) Legal Stud F 389 at 389–391) but rather because the law as it presently stands in Scotland does not elevate the ‘perversity’ of ‘slavery’ to the status of ‘law’.

¹¹ Although it is said here that Scots law refused to countenance the institution of slavery, it is plain that the Scottish nation and people did ‘vigorously’ engage in – and ‘benefit’ from – colonial slavery. Throughout the eighteenth century, slaves from the colonies were routinely brought to the shores of Scotland – and thus nominally brought under the jurisdiction of Scots law – without undergoing any practical change in status: see JW Cairns ‘Stoicism, slavery and law: Grotian jurisprudence and its reception’ (2001) Grotiana at 216–217.

¹² (1687) Mor 9505.

¹³ See eg the controversy surrounding cases such as Sheddan v a Negro (1757) Mor 14545, Stewart Nicholson v Stewart Nicholson (1771) and Spens v Dalrymple (1770), each of which concerned purported ‘slaves’ acquired in British colonies and each of which was seen as giving rise to sufficiently complex legal issues so as to merit litigation and debate in spite of the ruling in Reid.

¹⁴ (1788) Mor 14545.

¹⁵ See the discussion in Cairns, JW ‘John Millar and slavery’ in Walker, NMacCormick's Scotland (Edinburgh: Edinburgh University Press, 2010) pp 102–103Google Scholar.

¹⁶ See the lectures of Professor John Miller in the late eighteenth century, wherein it is noted that ‘the judges [in Knight] were clearly and decidedly of opinion, that slavery was contrary both to the law of nature, and the municipal law of this country’: GUL, MS Gen. 243, 60.

¹⁷ As Cairns notes, there were at least two occasions, prior to 1778, in which the Scottish courts appeared to (implicitly) recognise the status of enslaved individuals as such: see Cairns, above n 15, p 75.

¹⁸ Cf Miller, above n 2, para 8.

¹⁹ This is in line with the observation of Professor Allain that ‘as a result of its [slavery's] legal abolition, so the thinking went, slavery no longer existed’: see J Allain ‘Identifying a case of slavery’ in K Bales (ed) Antislavery Usable Past Reader (forthcoming) ch 11.

²⁰ See Descheemaeker, E and Scott, HIniuria and the Common Law (Oxford: Hart Publishing, 2013) p 2Google Scholar. See also Cairns, JW and Plessis, P Du ‘Ten years of Roman law in the Scottish courts’ 2008 SLT 191 and Walker, DThe Scottish Legal System: An Introduction to the Study of Scots Law (Edinburgh: W Green, 8th edn, 2001) p 41Google Scholar.

²¹ See the Act Anent Coalyers and Salters 1606 APS iv 286, c 10.

²² Miller, above n 2, para 8.

²³ As the ‘Human Rights Convention’ is so defined in s 4(6).

²⁴ Siliadin, above n 5, para 122.

²⁵ Van Droogenbroeck v Belgium 7906/77 [1982] ECHR 3 para 58.

²⁶ Siliadin, above n 5, para 123.

²⁷ That is to say, the Roman: see Watson, ASlave Law in the Americas (University of Georgia Press, 1989) p 129Google Scholar. As Watson notes, in the period of European colonialism, ‘Roman law [was] the model’, thus in the European colonies ‘a modified nonracist slave law was imposed on a racist slave society’.

²⁸ See Siliadin, above n 5, para 122.

²⁹ Modern Slavery Act 2015, s 60(1).

³⁰ Ibid, s 1(2).

³¹ See Penner, JE ‘The concept of property and the concept of slavery’ in Allain, J (ed) The Legal Understanding of Slavery: From the Historical to the Contemporary (Oxford: Oxford University Press, 2012) p 242CrossRefGoogle Scholar.

³² The English courts may be able to adopt a purposive approach to interpreting s 1 of the Modern Slavery Act 2015; as indicated by the judgment in Miller, this option is not available to the Scottish courts as there must, by the construction of the statute, be evidence of legal ownership of a ‘person’ for ‘slavery’ to be established: Miller, above n 2, para 9.

³³ Carey-Miller, DL et al. ‘National report on the transfer of movables in Scotland’ in Faber, W and Lurger, B (eds) National Reports on the Transfer of Movables in Europe Volume 2: England and Wales, Ireland, Scotland, Cyprus (Sellier, 2009) p 311Google Scholar.

³⁴ See MacCormick, NInstitutions of Law: An Essay in Legal Theory (Oxford: Oxford University Press, 2007) p 77CrossRefGoogle Scholar.

³⁵ MacCormick, above n 34, p 77.

³⁶ Bois, F Du ‘Private law in the age of rights’ in Reid, EC and Visser, DPrivate Law and Human Rights: Bringing Rights Home in Scotland and South Africa (Edinburgh: Edinburgh University Press, 2013) p 12Google Scholar.

³⁷ Universal Declaration of Human Rights, Preamble; Art 1.

³⁸ Ibid, Art 2.

³⁹ MacCormick, above n 34, p 85.

⁴⁰ See MacCormick, NRhetoric and the Rule of Law (Oxford: Oxford University Press, 2005) p 147CrossRefGoogle Scholar.

⁴¹ It must be emphasised that the fact of the humanity of either P₁ or P₂ is not conclusive evidence that either are ‘persons’ in law.

⁴² See Siliadin, above n 5, para 122.

⁴³ Phillips, WD JrSlavery from Roman Times to the Early Transatlantic Trade (University of Minnesota Press, 1985) p 16Google Scholar.

⁴⁴ As Professor Reid observed on review of Palmer's, VV (ed) Mixed Jurisdictions Worldwide (Cambridge: Cambridge University Press, 2012)CrossRefGoogle Scholar, ‘the law of property in mixed legal systems is always Civilian’: see Reid, KGC ‘Patrimony not equity: the trust in Scotland’ in Valsan, RTrust and Patrimonies (Edinburgh: Edinburgh University Press, 2015) p 111Google Scholar.

⁴⁵ See Watson, above n 27, p 126; MacKenzie, GThe Institutions of the Law of Scotland (Edinburgh: John Reid, 1684) p 73Google Scholar.

⁴⁶ Watson, above n 27, p 129.

⁴⁷ Phillips, above n 43, p 16.

⁴⁸ With its reliance on demonstrating the ‘master's’ exercise of ‘rights of ownership’ over the slave, the Convention clearly conceptualises ‘slavery’ in line with the Roman institution in which the slave is conceptualised as an object which is treated no differently from any other piece of property in the owner's patrimony.

⁴⁹ Gai Institutiones I, 8; Justinian Institutiones I, Title II, para 12; per MacCormick ‘even in the twenty-first century, one can still say rather as Gaius did twenty centuries ago, that all law concerns persons, things and actions’: MacCormick, above n 34, p 77.

⁵⁰ Gaius Institutes 2, 8; Justinian Institutes 2, 2, 12.

⁵¹ See the discussion in J Brown Res Religiosae and the Roman Roots of the Crime of Violation of Sepulchres.

⁵² Gaius Institutes 2, 9. As Watson emphasises, by the time of the lex Aquilia, ‘the killing of, and injuries to, slaves are classed along with the killing of, and injuries to, herd animals’: Watson, ARoman Slave Law (Baltimore: JHUP, 1987) p 46Google Scholar.

⁵³ See the discussion in Weil, SLa Personne et le Sacré, translated as Human Personality by Rees, R in Selected Essays 1934–1943 (Oxford: Oxford University Press, 1962) p 62Google Scholar.

⁵⁴ As Esposito notes, ‘persons are defined primarily by the fact that they are not things, and things by the fact that they are not persons’: Esposito, RPersons and Things (Cambridge: Polity Press, 2015) p 16Google Scholar.

⁵⁵ ‘Summa itaque divisio de iure personarum haec est quod omnes homines aut liberi sunt aut servi’: Justinian Institutes Book I, Title 3, para 1; this sentiment is mirrored in Gaius’ Institutes: ‘et quidem summa divisio de iure personarum haec est quod omnes homines aut liberi sunt aut servi’: Gai Institutiones Book I Title III, §9.

⁵⁶ See Moyle, JBImperatoris Iustiniani Institutiones Libri Quattuor: With Introductions, Commentary and Excursus (Oxford: Clarendon Press, 3rd edn, 1896) p 111Google Scholar.

⁵⁷ Long, G ‘Caput’ in Smith, WA Dictionary of Greek and Roman Antiquities (London: John Murray, 1875) p 239Google Scholar.

⁵⁸ See the discussion in A Watson ‘Rights of slaves and other owned-animals’ (1997) Animal Law 1 at 1–6.

⁵⁹ MacCormick, above n 34, p 86.

⁶⁰ MacCormick, above n 34, p 94.

⁶¹ Watson, above n 58, at 4.

⁶² On this point see LR Danil, ‘Legal personhood for non-human animals? The case of the non-human rights project’ (26 April 2018, UK Human Rights Blog), available at ukhumanrightsblog.com/2018/04/26/legal-personhood-for-non-human-animals-the-case-of-the-non-human-rights-project-dr-linda-roland-danil/.

⁶³ Moyle, above n 56, pp 111–112. Even Westrup, who takes pains to emphasise the perceived personhood of slaves in the earliest days of Rome, concedes that the slave in later Roman law merely ‘bore the germ of an individual personality (persona)’ due to the possibility of manumission: see Westrup, CWSome Notes on the Roman Slave in Early Times (Copenhagen: Ejnar Munksgaard, 1956) p 12Google Scholar.

⁶⁴ For a discussion of such, see Watson, above n 58, at 1–5.

⁶⁵ Naturally, one must here bear in mind Westermann's remark that ‘the best criterion for determining the rigidity and the harshness of any slave system is to be found in the case and availability of its manumission procedures’: see Westermann, WLThe Slave Systems of Greek and Roman Antiquity (Philadelphia: American Philosophical Society, 1955) p 25Google Scholar.

⁶⁶ Within the context of British colonial slavery, it should be noted that slaves were drawn from other holdings including (inter alia) India, Pakistan and Bangladesh: provided that one was not white, one might find oneself ‘owned’ as a slave.

⁶⁷ Though not exclusively: though ‘manumission gave, in general, the coveted Roman citizenship’, ‘slaves who had been put in bonds, branded by their owner or tortured by the state for a crime and found guilty of it would not, if subsequently freed, become citizens, but have the lowly status of peregrini dediticii (surrendered enemies)’: Watson, above n 58, at 2–3.

⁶⁸ As Finely observed, though early modern advocates of slavery did find recourse to Roman law in providing intellectual justification for their position, and indeed they ‘adopted [the Roman framework] almost in toto’, the racist colonial institution of slavery nevertheless came to diverge significantly from the position found in Roman law, as the law of manumission was (gradually) modified to become as minimal and as restricted as possible: Finely, MIAncient Slavery and Modern Ideology (London: Chatto and Windus, 1980) pp 18–19Google Scholar.

⁶⁹ Indeed, it has been noted that ‘Roman law gave the private citizen, owner of a slave, greater power than that given to the supreme Roman magistrate, who, in order to naturalise a foreigner, needed the conformation of the city's assemblies or an authorisation by the Senate’, since any slave-owner could confer Roman citizenship upon his slaves by mere act of manumission: see L Capogrossi Colognesi ‘Peregrini and slaves in the Roman empire’ (1996) Fundamina 236 at 244.

⁷⁰ See the infamous decision in Dred Scott v Sandford 1857 US Supreme Court.

⁷¹ See Note ‘The meaning(s) of “the people” in the constitution’ (2013) Harvard Law Review 1078 at 1091.

⁷² Care should be taken to avoid categorising such extension of ‘personhood’ to incorporeal entities as a legal ‘fiction’, as MacCormick cautions: see MacCormick, above n 34, p 84.

⁷³ See the discussion in EL O'Donnell and J Talbot-Jones ‘Creating legal rights for rivers: lessons from Australia, New Zealand, and India’ (2018) Ecology and Society 7.

⁷⁴ Per Horsman and Korsten, the term persona ‘distinguish[ed] holders of full civil rights from those who lacked such civil personhood’: see Y Horsman and F-W Korsten ‘Introduction: legal bodies: corpus/ persona/ communitas’ (2016) Law and Literature 277 at 277.

⁷⁵ Nicholas, BAn Introduction to Roman Law (Oxford: Clarendon Press, 1962)Google Scholar.

⁷⁶ Nicholas, above n 75, p 60.

⁷⁷ Waelkens, LLJM ‘Medieval family and marriage laws: from actions of status to legal doctrine’ in Cairns, JW and du Plessis, PJThe Creation of the Ius Commune: From Casus to Regula (Edinburgh: Edinburgh University Press, 2010) p 104Google Scholar.

⁷⁸ Nicholas, above n 75, p 61.

⁷⁹ See Horsman and Korsten, above n 74, at 277.

⁸⁰ Though in turn, by design, the Roman Emperors began, at the beginning of the third century, a process of extending the scope and reach of the ius civile to bring as many human beings as possible under its umbrella: see RW Mathisen ‘Peregrini, barbari, and cives romani: concepts of citizenship and the legal identity of barbarians in the later Roman empire’ (2006) American Historical Review 1011 at 1013.

⁸¹ See Esposito, above n 54, p 27; note, also, Tay's remarks that ‘property is that which a man has a right to use and enjoy without interference; it is what makes him a person’: Tay, A ‘Law, the citizen and the state’ in Kamenka, E et al. (eds) Law and Society: The Crisis in Legal Ideals (London: Edward Arnold, 1978) p 10Google Scholar. While Esposito consciously avoids the use of gendered language, Tay self-consciously employs it in explicit recognition of the differential of power enjoyed by men in claims of ‘personhood’.

⁸² It should, however, be recognised that some women – those sui iuris – were recognised as paterfamilias in their own right and so would possess ‘personhood’ within the meaning discussed in this paper. This ‘personhood’ was always more limited than that afforded to men, however, since the designation of paterfamilias could only ever be applied to women in a reduced sense: women were not permitted to hold patria potestas – paternal power over life and death – over their children, as men could: see RP Saller ‘Pater familias, mater familias, and the gendered semantics of the Roman household’ (1999) Classical Philology 182; Gaius Institutes Book II, para 104.

⁸³ See the discussion in Waelkens, above n 77, pp 104–105.

⁸⁴ There was, however, a distinction to be drawn between the place of those under the potestas of a pater and the slave within the familia in Roman law. The pater enjoyed dominium – a relationship of ownership conferring powers of use, abuse and entitlements to the ‘fruits’ (benefits generated by labour) – over the slave, since the slave belonged fully to the province of the ius quod ad res pertinet. By contrast, the family member held in potestas was subject to the ius quod ad personas pertinet: see Gai Institutiones Book I, Tit 8–9; though this potestas gives the power many of the marks of ‘property’ as it might be conceptualised in modern terms, it is evident that patria potestas is fundamentally distinct from the concept of proprietary ‘rights’: see Westrup, above n 63, p 8.

⁸⁵ Westrup, above n 84, p 15.

⁸⁶ Peregrini were, however, afforded ‘rights’ under the ius gentium, rather than the ius civile, but, as the discussion above makes clear, slaves could lay claim to (almost) no entitlements. As Professor van den Berg observed recently, the Romans did not regard slavery as a morally objectionable institution and so, ‘they did not feel the need to grant legal capacity to [slaves]… according to Roman law, slaves were just res’: PAJ van den Berg ‘Slaves: persons or property? The roman law on slavery and its reception in western Europe and its overseas territories’ (2016) Osaka University Law Review 171 at 187.

⁸⁷ A Smith An Inquiry into the Nature and Cases of the Wealth of Nations vol I, viii 41.

⁸⁸ Smith, above n 87, vol I, viii 41.

⁸⁹ Smith, above n 87, vol I, viii 41.

⁹⁰ See Esposito, above n 54, p 26.

⁹¹ Indeed, as Buckland notes, a slave who was abandoned by their master would not become free, but rather become res nullius – a thing owned by no one – who would consequently come to be owned by the first personas to take possession of the abandoned slave: see Buckland, WWThe Roman Law of Slavery: The Condition of the Slave in Private Law from Augustus to Justinian (Cambridge: Cambridge University Press, 1908) p 2Google Scholar.

⁹² See SL Guterman ‘The principle of the personality of law in the early middle ages: a chapter in the evolution of western legal institutions and ideas’ (1966) University of Miami Law Review 259 at 261.

⁹³ Watson, above n 58, at 4.

⁹⁴ Justinian Institutes I, Title 8, para 1.

⁹⁵ Though compare the discussion above to Thomas Wood's 1704 New Institutes of the Civil Law: Wood, TA New Institute of the Imperial or Civil Law (London: Richard Sare, 1704) p 30Google Scholar, wherein this English jurist notably describes slaves as ‘persons’.

⁹⁶ ‘[The slave] always remained for the Roman, firmly and realistically, corporeal property whose value could be measured in monetary terms’: Watson, above n 52, p 46.

⁹⁷ See S Deakin ‘The contract of employment: a study in legal evolution’ (2001) Historical Studies in Industrial Relations 32; Middlemiss, S and Downie, MEmployment Law in Scotland (Haywards Heath: Bloomsbury, 2nd edn, 2015) para 1.3Google Scholar.

⁹⁸ Indeed, in the words of Professor Cairns, ‘From the start of sophisticated legal discussion of slavery in Scotland, Roman concepts were in use to understand the phenomenon, and slaves were understood to be property’: see JW Cairns ‘The definition of slavery in 18th century thinking: not the true Roman slavery’ in Allain, above n 31, p 72.

⁹⁹ Reid v Scot of Hardin and His Lady (1687) Mor 9505.

¹⁰⁰ APS iv 286, c 10.

¹⁰¹ See the Colliers and Salters (Scotland) Act 1775 15 Geo III c 28, although it should be noted that it took a second Act – the 1799 Act of Parliament to Explain and Amend the Laws Relative to Colliers in Scotland – to finally ‘free’ the colliers from ‘servitude’: see the discussion in Erskine, JThe Principles of the Law of Scotland: In the Order of Sir G. Mackenzie's Institutions (Edinburgh: Bell and Bradfute, 12^th edn, 1827) p 117Google Scholar.

¹⁰² Unless otherwise noted, reference to Stair in this paper is reference to the second edition reprint edited by David M Walker. The second edition of Stair's text is said to be ‘on the whole, the best’ by John S More, editor of the fifth edition, and indeed it is on this edition that the four subsequent editions of the work have been based (though not, as Professor Walker notes, without, in the cases of the third, fourth and fifth editions, the editors having ‘at many points taken liberties, frequently very great liberties, with Stair's text): see Walker, DM (ed) Stair: The Institutions of the Law of Scotland (Glasgow: Glasgow University Press, 1981) p 47Google Scholar.

¹⁰³ Stair Institute 1, 2, 2.

¹⁰⁴ Stair Institute 1, 2, 2–5.

¹⁰⁵ Stair gives the following example (inter alia): ‘a husband hath power to restrain his wife from her liberty of going where she will, and may keep her within the bounds of conjugal society’: Stair Institute 1, 2, 5.

¹⁰⁶ Stair Institute 1, 2, 6–7.

¹⁰⁷ Stair Institute 1, 2, 8.

¹⁰⁸ Stair Institute 1, 2, 9.

¹⁰⁹ Stair Institute 1, 2, 11.

¹¹⁰ See the discussion in Tierney, BThe Idea of Natural Rights (Cambridge: Eerdman's, 1997) p 136Google Scholar.

¹¹¹ Dig 1.1.4.

¹¹² Stair Institute 1, 2, 10; this follows from Regiam Majestatem, in which it is recognised that manumission is a product of the ius gentium also: see Regiam Majestatem I, Cap 14.

¹¹³ Though for a critical consideration of this assertion see Millar, JThe Origin of the Distinction of Ranks (Garrett, Aaron ed) (Indianapolis: Liberty Fund, 2006) pp 264–267Google Scholar.

¹¹⁴ Stair Institute 1, 2, 11.

¹¹⁵ Cf Smith, TDe Republica Anglorum; A Discourse on the Commonwealth of England (Cambridge: Cambridge University Press, 1906) p 130Google Scholar: ‘[The adscripti] were not bound to the person but to the manor or place, and did follow him who had the mannors, and in our law are called villains regardants’.

¹¹⁶ Stair Institute 1, 2, 11; though Ballentine's Law Dictionary of 1916 does simply – without further comment – define adscriptitii as ‘slaves’ – see Ballentine, JAA Law Dictionary (Indianapolis: Bobbs-Merrill Co, 1916) p 10Google Scholar.

¹¹⁷ Such was the similarity in factual circumstance between the Roman slave and the feudal serf that ‘Bracton thought himself entitled to assume equality of condition between the English villain and the Roman slave’: Vinogradoff, PVillainage in England: Essays in English Mediaeval History (Oxford: Clarendon Press, 1892) p 47Google Scholar, though it has been suggested that one should not readily assume that the mediaeval word ‘servus’ was wholly analogous to the word in classical Latin: van den Berg, above n 86, at 177.

¹¹⁸ Of which, see Vinogradoff, above n 117.

¹¹⁹ Stair Institute 1, 2, 11; the wording of this part is identical in the first edition of (1681) (printed by the heir of Andrew Anderson) and the second edition of 1693 (also originally printed by the heir of Andrew Anderson). In Erskine's Principles (Rankine ed), however, colliers, salters and coal-bearer are likened to the adscriptitii: see Rankine, J (ed) Erskine's Principles of the Law of Scotland (Edinburgh: W Green, 21st edn, 1911) p 105Google Scholar.

¹²⁰ For ‘serfdom’ as it subsisted in early Scots law, see Regiam Majestatem I, Cap 11–14.

¹²¹ Stair Institute 1, 2, 15

¹²² Millar's work, The Origin of the Distinction of Ranks, was first published in 1771. The text went through three editions in the author's lifetime: see the discussion in Cairns, above n 15.

¹²³ Millar, above n 122, p 268.

¹²⁴ Millar, above n 122, pp 268–269.

¹²⁵ See also Baron F Duckham ‘Serfdom in eighteenth century Scotland’ (1969) History 178 at 178.

¹²⁶ Indeed, though, in Roman law ‘all men are either free or slaves – there is no third, intermediate category’ (Watson, above n 52, p 7), early Scots law recognised categories in between these binaries. Regiam Majestatem notes that though the ius gentium recognised three types of human beings: the freemen and their opposites, the slaves, as well as those who were once slaves but have now been freed, a fourth type of human being came to be recognised ‘ab ebrietate Noae’ (in the drunkenness of Noah): the bondman. While the tripartite division of human beings is lifted almost wholesale from Ulpian and Justinian's Institutes (Dig 1.14; Justinian Institutes I, 5) the allusion to bondmen appears to have its root in Gratian's Decretals (I, 35, 8) and demonstrates the unique – and non-Roman – classification of bondmen as something other than plain ‘persons’ or mere ‘things’: see Lord Cooper of Culross (ed and trans) Regiam Majestatem and Quoniam Attachiamenta Based on the Text of Sir John Skene (Edinburgh: Stair Society, 1947) p 118Google Scholar.

¹²⁷ See Westrup, above n 63, p 12.

¹²⁸ See Regiam Majestatem I Cap 14. ‘Dominus’ – in the sense of ‘Lord’ or ‘Master’ – is used within the chapters of Regiam Majestatem pertinent to the subject of bondmen, but nothing therein implies that the Lord or Master exercises ‘ownership’ of their bondmen; rather, the bondmen are ‘manui et potestati sui domini subjectus est’: ‘subject to the power and hand of their Lord’.

¹²⁹ See the discussion in J Brown ‘Jus quaesitum tertio: a res, not a right?’ (2019) Jur Rev 53 at 72. Due to the expanding importance of the law of obligations, the Roman tripartite iurum divisione has expanded into a quadripartite division, recognised as comprising ‘Scots private law’ within the Scotland Act 1998, per s 126(4).

¹³⁰ See also Duckham, above n 125, at 178.

¹³¹ See the discussion in Brown, above n 129, at 72.

¹³² See also Duckham, above n 125, at 178.

¹³³ Stair Institute 1, 2, 12.

¹³⁴ Stair Institute 1, 2, 11; APS ii 50, c 24 and APS ii 487, c 17.

¹³⁵ Stair Institute 1, 2, 15.

¹³⁶ Middlemiss and Downie appear, therefore, to err when, in their text on Employment Law in Scotland, they suggest that in Scots law at this time ‘the master not only had a right to the fruits of the labour of his slave, but he became the legal owner, body and soul, of a human being whom the law counted as a chattel’: see Middlemiss and Downie, above n 97, para 1.2. The relationship described by Stair appears to fit better within the framework of the ‘Victorian’ master-servant relationship, rather than any ‘master-slave’ relationship and, though it is the case ‘that on several estates the children of coal workers were considered to be life bound too brings the Scottish experience within the margins of a slave system… the temptation to overstate the argument should be resisted’ per Whatley, C ‘The dark side of the enlightenment: sorting out serfdom’ in Devine, TM and Young, JREighteenth Century Scotland: New Perspectives (East Linton: Tuckwell Press, 1999) p 262Google Scholar.

¹³⁷ The second edition was published in 1693. Various manuscript copies which were later incorporated into the final published editions began circulating from as early as 1664: see Hutton, GM ‘Purpose and pattern of the institutions’ in Walker, DM (ed) Stair Tercentenary Studies (Edinburgh: The Stair Society, 1981) p 79Google Scholar.

¹³⁸ MacKenzie, above n 45, p 73.

¹³⁹ (1687) Mor 9505.

¹⁴⁰ APS iv 286, c 10.

¹⁴¹ Stair Institutes 1, 2, 11 is unchanged between the first and second edition.

¹⁴² The third edition of Stair's work appeared in 1759; the fourth and fifth editions were each published in the early nineteenth century (1826 and 1832 respectively).

¹⁴³ See Forbes, WThe Institutes of the Law of Scotland (Edinburgh: J Watson, 1722)Google Scholar.

¹⁴⁴ A work which, at best, exercised a ‘rather muted’ influence on the development of Scots law: see MacQueen, HL ‘Introduction’ in Forbes, WThe Institutes of the Law of Scotland (Edinburgh: Edinburgh Legal Education Trust, 2012) p viGoogle Scholar.

¹⁴⁵ See MacQueen, above n 144, p x.

¹⁴⁶ Forbes Institutes, above n 143, p 91.

¹⁴⁷ Forbes Institutes, above n 143, p 91.

¹⁴⁸ Forbes Institutes, above n 143, p 91.

¹⁴⁹ Though, of course, as Ulpian reminds us, ‘nihil commune habet proprietas cum possessione’: Dig 41.2.12.1.

¹⁵⁰ See A Herd ‘William Forbes, The Institutes of the Law of Scotland, with an introduction by Hector L MacQueen’ (2014) Edinburgh Law Review 300 at 301.

¹⁵¹ W Forbes A Great Body of the Law of Scotland, containing the harmony thereof, and differences from the civil and feudal laws: and shewing how far the Scots and English law do agree and differ; with incident comparative views of the modern constitutions of other nations in Europe, (1708–1745). The text is available at www.forbes.gla.ac.uk/contents/.

¹⁵² See Cairns, JW ‘Scottish law, Scottish lawyers and the status of the Union’ in Cairns, JWLaw, Lawyers and Humanism: Selected Essays on the History of Scots Law vol I (Edinburgh: Edinburgh University Press, 2015) p 88CrossRefGoogle Scholar.

¹⁵³ See Cairns, JW ‘The origins of the Glasgow law school: the professors of civil law, 1714–1761’ in Cairns, JWEnlightenment, Legal Education, and Critique: Selected Essays on the History of Scots Law vol II (Edinburgh: Edinburgh University Press, 2015) p 148CrossRefGoogle Scholar.

¹⁵⁴ MacQueen, above n 144, p vi.

¹⁵⁵ MacQueen, above n 144, p vi.

¹⁵⁶ Great Body, above n 151, p 316.

¹⁵⁷ Great Body, above n 151, p 317.

¹⁵⁸ Great Body, above n 151, p 317.

¹⁵⁹ Great Body, above n 151, p 317: ‘the master may sell them, dispose of their persons, their industry and their labour’.

¹⁶⁰ Forbes Institutes, above n 143, p 91.

¹⁶¹ Great Body, above n 151, p 321.

¹⁶² Compare Great Body, above n 151, pp 321–322 and Forbes Institutes p 91.

¹⁶³ Great Body, above n 151, pp 320–321.

¹⁶⁴ (1772) 98 ER 499.

¹⁶⁵ Ibid, para 19.

¹⁶⁶ (1788) Mor 14545.

¹⁶⁷ Ibid, p 14546.

¹⁶⁸ Great Body, above n 151, p 322.

¹⁶⁹ Sir Wood, ThomasA New Institute of the Imperial, or Civil, Law (London: Richard Sare, 1704) p 31Google Scholar.

¹⁷⁰ RB Robinson ‘The two institutes of Thomas Wood: a study in eighteenth century legal scholarship’ (1991) American Journal of Legal History 432 at 432.

¹⁷¹ Forbes’ reference to Wood directs the reader to p 40 of the work; this citation is not correct for the first edition, but is for the third.

¹⁷² (London: Richard Sare, 3rd edn, 1721) p 40.

¹⁷³ (London: J&J Knapton, 4th edn, 1730) p 114.

¹⁷⁴ Robinson, above n 170, at 433.

¹⁷⁵ Robinson, above n 170, at 432.

¹⁷⁶ Sir Wood, ThomasAn Institute of the Laws of England (London: Strahan and Woodfall, 10th edn, 1772)Google Scholar.

¹⁷⁷ Robinson, above n 170, at 432.

¹⁷⁸ The court refers to position in Scots law (noting that ‘the law of Scotland annuls the contract to serve to life’, save in the case of colliers and salters) and in French law (which is described in a manner consistent with the account of Wood and Forbes): Somerset v Stewart (1772) 98 ER 499 paras 4–5.

¹⁷⁹ See also Allan and Mearns v Skene of Skene and Burnet of Monboddo (1722) Mor 9454, wherein a contract of servitude for ‘three nineteen years’ was reduced, ‘being too great a restraint upon natural liberty’.

¹⁸⁰ Devine, TMRecovering Scotland's Slavery Past (Edinburgh: Edinburgh University Press, 2015) ch 1, fn 19Google Scholar.

¹⁸¹ See R Crawford ‘Slaves and slaveowners in eighteenth-century Scotland’ (2012) Centre for Scottish and Celtic Studies, available at cscs.academicblogs.co.uk/slaves-and-slaveowners-in-eighteenth-century-scotland/.

¹⁸² A MacDouall, Lord Bankton An Institute of the Laws of Scotland in Civil Rights.

¹⁸³ Bankton Institute, above n 182, I, 2, 80.

¹⁸⁴ Bankton Institute, above n 182, I, 2.

¹⁸⁵ Bankton Institute, above n 182, I, 2, 1.

¹⁸⁶ Bankton Institute, above n 182, I, 2, 1.

¹⁸⁷ Sir Wood, Thomas, An Institute of the Laws of England (London: Henry Lindtot, 8th edn, 1754) p 11Google Scholar.

¹⁸⁸ Bankton Institute, above n 182, I, 2, 80.

¹⁸⁹ Bankton Institute, above n 182, I, 2, 82.

¹⁹⁰ Bankton Institute, above n 182, I, 2, 82.

¹⁹¹ John Erskine of Carnock An Institute of the Law of Scotland vol 1 (Edinburgh: John Bell, 1773) Book I, Tit VII, ch 2, para 60Google Scholar.

¹⁹² Great Body, p 322; Erskine Institute, above n 191, I, 7, 2, 60.

¹⁹³ Erskine Institute, above n 191, I, 7, 2, 60.

¹⁹⁴ To use Forbes’ words: see Great Body, p 322.

¹⁹⁵ Bankton Institute, above n 182, I, 2, 80; Erskine Institute, above n 191, I, 7, 2, 62. Erskine did, however, recognise the status of ‘negroes bought for the use of the European settlements in the Indies’ to be of ‘slavery’ in the proper sense.

¹⁹⁶ Bankton Institute, above n 182, I, 2, 83.

¹⁹⁷ Erskine Institute, above n 191, I, 7, 2, 62.

¹⁹⁸ de Groot, Hugo (Grotius) De Iure Belli ac Pacis (Amsterdam: Joannem Blaev, 1690) 2.c.5.27Google Scholar.

¹⁹⁹ See MacCormick, NLegal Reasoning and Legal Theory (Oxford: Clarendon, 1984) p 61Google Scholar. As MacCormick discusses, the Scottish Institutional writers were, to a man (and ironically, given their present status as sources of positive law) representatives of the ‘natural law’ school of legal thought.

²⁰⁰ Allan and Mearns v Skene of Skene and Burnet of Monboddo (1722) Mor 9454.

²⁰¹ Ibid.

²⁰² HM Advocate v Bell or Belinda (1771) NRS JC23/193; NRS, JC11/28.

²⁰³ Cairns, above n 98, p 69.

²⁰⁴ Cairns identifies Robert Sheddan v A Negro (1757) Mor 14545, Houston Stewart Nicholson v Mrs Stewart Nicholson (1770) Mor 16770 and Dalrymple v Spens (1770) NRS CS236/D/4/3 as relevant pre-Knight cases concerning the definition of slavery as it was understood in the eighteenth century: see Cairns, above n 98, pp 68–69.

²⁰⁵ Cairns, above n 98, pp 69–70.

²⁰⁶ ‘Mors ultima linea rerum. There the servant shall be free from his master. The poor young man is dead, and so has put an end to the question, what influence Christian charity or love to our neighbour, whatever his colour is, ought to have’: Robert Sheddan v A Negro (1757) Mor 14545.

²⁰⁷ Ibid.

²⁰⁸ This, of course, implies that Spens was not regarded as a ‘thing’ by Scots law. Had he been a slave ‘in a proper sense’, ownership of him would have logically fallen to Dalrymple's heirs in line with the law of succession.

²⁰⁹ Details of the Dalrymple v Spens litigation can be found on the National Archives of Scotland website: see webarchive.nrscotland.gov.uk/20170106030431/http://www.nas.gov.uk/about/061010.asp.

²¹⁰ See the discussion in Cairns, above n 98, p 70.

²¹¹ To paraphrase Bankton: Bankton Institute, above n 182, I, 2, 80.

²¹² As Cairns notes, the judges in Knight v Wedderburn must have ‘classified Knight as coming under the law relating to personae not that relating to res’ since ‘had they not done so, the Act of 1701 [the Liberation Act, or Act Anent Wrongous Imprisonment] would not have been applicable to him… because he had to be a “person” to be covered by the provisions of the statute’: see Cairns, above n 98, p 81.

²¹³ See Cairns, above n 98, p 74.

²¹⁴ Cairns, above n 98, p 79.

²¹⁵ Cairns, above n 98, p 82.

²¹⁶ More, JS (ed) Stair's Institutions of the Law of Scotland vol I (Edinburgh: Bell and Bradfute, 1832) p 19Google Scholar.

²¹⁷ ALSP Information for Joseph Knight, a Native of Africa, Pursuer in the Action at his Instance; Against John Wedderburn of Ballandean, Esq, Defender (25 April 1775) p 38.

²¹⁸ Cairns, above n 98, p 75.

²¹⁹ Hailes, LordDecisions of the Lords of Council and Session: From 1766 to 1791 vol II (Edinburgh: William Tait, 1826) pp 778–779Google Scholar. Lords Monboddo and Covington went further and took the view that Knight remained a slave in the Roman sense of that term.

²²⁰ Hailes, above n 219, p 778.

²²¹ See above. Neither Bankton nor Allan and Mearns are cited by the court, however.

²²² More, above n 216, p 19.

²²³ See Ivory, J (ed) Erskine's Institute of the Law of Scotland vol I (Edinburgh: Bell and Bradfute, 1824) p 210Google Scholar.

²²⁴ See J Allain ‘The legal definition of slavery in the twenty-first century’ in Allain, above n 31, p 199.

²²⁵ ALSP, above n 217, p 38.

²²⁶ Or crime/delicts: see Blackie, J and Chalmers, J ‘Mixing and matching in Scottish delict and crime’ in Dyson, MComparing Tort and Crime: Learning from across and within Legal Systems (Cambridge: Cambridge University Press, 2015) p 286Google Scholar.

²²⁷ At common law, this affront might have been regarded as a crimen privati carceris, itself a nominate sub-category of the iniuria realis (a species of the Romanistic delict iniuria, received into Scots law as the crime/delict ‘injury’: see Blackie, J ‘Unity in diversity: the history of personality rights in Scots law’ in Whitty, NR and Zimmermann, RRights of Personality in Scots Law: A Comparative Perspective (Dundee: Dundee University Press, 2009) pp 111–113Google Scholar). Crimen privati carceris had fallen out of fashion by the latter half of the eighteenth century, since the Act of 1701 (which remains in force today), and the remedy afforded for ‘wrongous imprisonment’ under this statute, came to be the preferred alternative for litigants: Blackie, J ‘The protection of corpus in modern and early modern Scots law’ in Descheemaeker, E and Scott, HIniuria and the Common Law (Oxford: Hart Publishing, 2013) p 160Google Scholar. Knight, in his case, (successfully) relied upon the Act 1701 in his pleadings.

²²⁸ See CA Whatley ‘Scottish “collier serfs”, British coal workers? Aspects of Scottish collier society in the eighteenth century’ (1995) Labour History Review 66 passim.

²²⁹ See H Cullen ‘Contemporary international legal norms on slavery’ in Allain, above n 31, p 304.

²³⁰ See J Allain and R Hickey ‘Property and the definition of slavery’ (2012) ICLQ 915 at 916; Miers, SSlavery in the 20^th Century: The Evolution of a Global Problem (AltaMira Press, 2003) p 453Google Scholar.

²³¹ Indeed the International Research Network on Slavery as the Powers Attaching to the Rights of Ownership achieved a consensus that ‘the definition of slavery available within the existing international legal framework that provided the greatest clarity and usefulness was that given in the 1926 Slavery Convention’: see K Bales ‘Slavery in contemporary manifestations’ in Allain, above n 31, p 282.

²³² Allain, above n 224, p 199.

²³³ The Scottish Parliament is bound to comply with the ECHR by dint of s 57 of the Scotland Act 1998. Any legislation to legalise the ownership of human beings could consequently be struck down by the courts.

²³⁴ Professor Reid has commented that ‘wrongful detention by private persons now occurs only rarely’ (see Reid, ECPersonality, Confidentiality and Privacy in Scots Law (Edinburgh: W Green, 2010) para 5.48Google Scholar) although it might be more accurate to simply state that cases concerning such now occur only rarely.

²³⁵ See Gordon, GHThe Criminal Law of Scotland Vol II (Edinburgh: W Green, 4^th edn, 2017) by James Chalmers and Fiona Leverick, para 33.51Google Scholar.

²³⁶ O'Connell-Davidson, JModern Slavery: The Margins of Freedom (Palgrave-MacMillan, 2015) p 34CrossRefGoogle Scholar.

²³⁷ O'Connell-Davidson, above n 236, pp 32–33.

²³⁸ O'Connell-Davidson, above n 236, p 33.

²³⁹ UN Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery 1956.

²⁴⁰ See S Drescher ‘From consensus to consensus: slavery in international law’ in Allain, above n 31, p 99.

²⁴¹ Note that as interwar Germany was a signatory to the 1926 Convention, the Nazi leadership was in contempt of international law and consequently the Reich's leadership was charged with, and convicted of, crimes against humanity for its institutional re-introduction of Romanistic slavery in Nazi Germany: see Drescher, above n 240, p 100.

²⁴² O'Connell-Davidson, above n 236, p 32.

²⁴³ RJ Scott ‘Under color of law: Siliadin v France and the dynamics of enslavement in historical perspectives’ in Allain, above n 31, p 162.

²⁴⁴ [2004] UKHL 26 para 20.

²⁴⁵ It is worth noting, at this juncture, that per s 6 of the Human Rights Act 1998, the courts may be bound to have due regard to the ECHR in any case concerning s 4 of the 2015 Act even in the absence of subsection (2), since the courts cannot presently ‘act in a way which is incompatible with a Convention right’.

²⁴⁶ ‘Professor Kevin Bales's response to Professor Orlando Patterson’ in Allain, above n 31, p 360.

²⁴⁷ As O'Connell-Davidson notes, ‘in practice anti-slavery advocacy has largely framed slavery as a uniquely appalling phenomenon’ (present author's emphasis): see O'Connell-Davidson, above n 236, p 31.

²⁴⁸ O Patterson ‘Trafficking, gender and slavery: past and present’ in Allain, above n 31, p 323.

²⁴⁹ As Bales notes, it is clear that ‘for most forms of slavery, the fundamental powers of ownership are exactly those that can be determined to exist outside legal frameworks’: see K Bales ‘Slavery in contemporary manifestations’ in Allain, above n 31, p 284.

²⁵⁰ Miller, above n 2, para 17 (present author's emphasis).