Introduction
Section 4(1)(a) of the Human Trafficking and Exploitation (Scotland) Act 2015 states that it is an offence for any person to hold another person in servitude or slavery.Footnote 1 In February 2018, John Miller and Robert McPhee appeared at the High Court in Glasgow, charged on indictment with this offence.Footnote 2 The co-accused were duly convicted of the charge of holding another person in servitude (inter alia), but the initial libel of ‘slavery’ was removed, by the trial judge, from the jury's consideration.Footnote 3 In defining both ‘servitude’ and ‘slavery’, the court was obliged, per s 4(2) of the 2015 Act, to have due regard to the understanding of these terms which has evolved out of the jurisprudence of Article 4 of the European Convention on Human Rights (ECHR).Footnote 4 ‘Slavery’, then, was said to denote ‘the status or condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised’.Footnote 5 Thus, it was concluded that ‘the definition of slavery involves … rights of ownership’Footnote 6 and that, as a result of this, ‘there was no evidence upon which they could hold that the complainer had been held in a state of slavery’.Footnote 7
If, however, the definition of ‘slavery’ must be understood as necessarily involving the ‘powers’ arising from ‘rights of ownership’ – that is, in the Scottish context, a legal relationship of dominium between the owner and the slaveFootnote 8 giving rise to powers of disposal, use and abuse of the ‘thing’ owned, as well as legal claims to the fruits produced by the labour of the ‘thing’Footnote 9 – it is difficult to see how any private individual can actually commit the offence of holding another person as a slave within the context of the 2015 Act.Footnote 10 Historically, Scots law has refused to countenance the institution of slavery.Footnote 11 As early as 1687, in the case of Reid v Scot of Harden and his Lady,Footnote 12 the Court of Session held that ‘we have no slaves in Scotland, and mothers cannot sell their bairns’. Though this juridical pronouncement was seemingly forgotten in practice for much of the eighteenth century,Footnote 13 in the 1778 case of Knight v Wedderburn Footnote 14 it was firmlyFootnote 15 established that Scots law did not recognise the lawfulness of slavery as an institution.Footnote 16 If the law does not recognise that it is possible for one human being to own another – and Scots law has certainly not recognised this for centuries, if it ever formally didFootnote 17 – and if the definition of slavery necessarily ‘involves rights of ownership’,Footnote 18 then it follows that any enactment of law specifically proscribing slavery is nugatory.Footnote 19
This paper consequently asks whether or not in passing s 4(1)(a) of the 2015 Act (and thus its predecessor, s 47(1)(a) of the Criminal Justice and Licensing (Scotland) Act 2010) Parliament criminalised an impossible action. In answering this question, this paper considers the significance that conferring the status of ‘person’ upon an entity has, as a matter of law, and assesses the extent to which there can be said to be a legal binary between ‘persons’ and ‘things’ in ‘living Roman legal systems’, such as Scotland.Footnote 20 Drawing on this discussion, the piece then considers the historical place of slavery in Scots law and investigates, with reference to the Acts of the pre-1707 Scottish Parliament providing for the astriction of colliers, coal-bearers and salters to the mines,Footnote 21 the extent to which the concept of slavery, as it would be recognised in domestic Scots and in international law, can be said to be necessarily bound up in notions of ownership. In concluding that, at present, the definition in European human rights law is necessarily so bound, the paper closes by recommending that domestic Scots law draw on a wider definition of ‘slavery’ than that present in ECHR jurisprudence in order to capture the nature of the wrong that the Scottish Parliament sought to prohibit.
1. ‘Persons’, ‘servitude’ and ‘slavery’ in s 4
Before embarking on a discussion of historical legal perspectives on ‘slavery’ and ‘servitude’ it is necessary to establish what, precisely, Parliament has proscribed in passing s 4 of the 2015 Act. For that reason, subsection (1) of the Act is set out below:
(1) A person commits an offence if—
(a) the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is so held, or
(b) the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform such labour.
As Lady Stacey indicated at first instance in Miller,Footnote 22 per subsection (2), when defining ‘slavery’ or ‘servitude’, one must have reference to the jurisprudence of Article 4 of the ECHR,Footnote 23 which consequently here means that ‘slavery’ must be interpreted in light of the 1926 Convention on Slavery per the decision in Siliadin v France.Footnote 24 In respect of ‘servitude’, the prosecution must prove that there has been a ‘particularly serious form of denial of freedom’Footnote 25 which includes ‘in addition to the obligation to perform certain services for others … the obligation for the “serf” to live on another person's property and the impossibility of altering his condition’.Footnote 26 As such, any prosecutor must demonstrate either that the accused held the victim as a slave within the ‘“classic”Footnote 27 meaning of [that term] slavery as it was practised for centuries’,Footnote 28 or that they held the victim in servitude within the aforementioned terms.
Section 4 of the 2015 Act mirrors s 1 of the Modern Slavery Act 2015, which applies to England and Wales.Footnote 29 The courts of England and Wales are bound, then, like those of Scotland, to interpret ‘slavery’ or ‘servitude’ in the manner prescribed by Siliadin.Footnote 30 Unlike in Scots law, however, ‘ownership’ is not traditionally recognised as a legal concept in the common law world.Footnote 31 Common law courts consequently have a certain degree of latitude in interpreting the term ‘ownership’, in defining slavery, which is not available to the Scottish courts.Footnote 32 In Scotland, property law remains ‘resolutely Civilian in character’ and ‘ownership’ or dominium exists as a defined legal concept.Footnote 33 Thus, on the face of it, the Scottish courts cannot convict a ‘person’ of holding another in ‘slavery’, as Miller demonstrates, since in Scots law no person may hold another in their patrimony.
Indeed, in the Scottish context, the 2015 Act's use of the term ‘person’ to refer to both perpetrator and victim is also notable. As Professor MacCormick discussed in his Institutions of Law, ‘being a person is additional to being a human being’,Footnote 34 although by dint of Article 6 of the Universal Declaration of Human Rights every human being has a claim-right to this ‘additional recognition’.Footnote 35 The ‘classic’ meaning of ‘slavery’ evolved before our present ‘age of rights’Footnote 36 and before international instruments such as the UDHR entreated signatory states to recognise the ‘inherent dignity… of all members of the human family’Footnote 37 which is shared equally among all, regardless of colour, class or creed.Footnote 38 Indeed, one of the primary hallmarks of this brand of slavery, as a legal institution, is the fact that it reifies – and so dehumanises – those whom the system deems to be ‘slaves’.Footnote 39 Under any legal system which recognises slavery, certain human beings are denied ‘personhood’ and so denied legal protection, capacity and agency; as non-persons, they cannot be directly wronged in law. This, as demonstrated in the course of this paper, has an obvious knock-on effect on the criminalisation of ‘slavery’ within the terms of s 4.
Since the 2015 Act must be interpreted in light of both the ‘classic’ meaning of slavery as set out in Siliadin and the peculiarly legal, rather than the now-everyday, meaning of the term ‘person’, in order for an accused to be convicted of the proscribed offence under subsection (1)(a), it must consequently be syllogisticallyFootnote 40 established in any case that (1) the accused (the ‘master’) (P1) is a person (P*); (2) the complainer (the ‘slave’ or ‘serf’) (P2) is a person (P*);Footnote 41 (3) that P1 knowingly (or should have known that P1) held P2 in slavery or servitude. In order to establish (3), it must either be shown (I) that P1 exercised genuine rights of ownership over P2 (this necessitates there being extant some legal framework which permits ownership of human beings) or that (II) P1 denied P2 their freedom, required P2 to carry out services for P1's benefit, forced P2 to live on P1's land and afforded P2 no opportunity to change their status. As is apparent from the decision in the Miller case, it is possible for one to demonstrate (II) in modern Scots law, however establishing (I) is seemingly impossible, as in Scots law P1 can never be shown to have exercised a genuine legal right of ownership over P2. Indeed, as the historical investigation in this paper establishes, it appears that the prohibition of slavery in s 4(1)(a) would be legally meaningless in any Western legal system which employs the ‘“classic” meaning of slavery as it was practised for centuries’,Footnote 42 since slaves were not ascribed juridical ‘personhood’ and so could not be designated P* for the purposes of any charge under this legislation.
The ‘classic’ meaning of slavery is rooted in Roman law.Footnote 43 Roman law, as noted above, forms the basis of the modern Scots law of property (as well as the property law of all other Civilian and Mixed jurisdictions),Footnote 44 but in many European jurisdictions (including France and Scotland) in which slavery was not recognised in domestic common law, Roman slave law was not received.Footnote 45 Nevertheless, Roman law, as it pertained to slaves and slave-ownership, was used to fill the ‘gaps in the law relating to slaves’ in the European colonies, and Anglo-American judges adopted this method as readily as did those trained in the Civil law tradition proper.Footnote 46 As Phillips observed, ‘the Romans left slavery as a major legacy, whose distant legatees were the slaves and slave-owners of the Americas’.Footnote 47 The Roman conceptualisation of ‘slavery’ as an institution which reifies and dehumanises the ‘slave’, consigning them to the status of ‘res’ (thing), thus evidently influenced the drafters of the 1926 Slavery Convention,Footnote 48 which now provides the definition of ‘slavery’ within ECHR jurisprudence and, consequently, modern Scots law. Accordingly, it follows that the ‘classic’ position of slavery merits some consideration, since to appropriately understand the interpretation of ‘slavery’ in twenty-first century Scotland (or, indeed, elsewhere), the key concepts at play remain rooted in Roman law.
2. Legal persons, legal property
(a) Legal persons and legal property in Roman law
The Emperor Justinian (and his juristic predecessor, Gaius) divided Roman law under three headings: the law of persons; the law of things; and the law of actions.Footnote 49 According to this schema – prima facie – all human beings were quintessentially corporeal res humani iuris Footnote 50 (‘things’ subject to human, as opposed to divine, law)Footnote 51 and so could be ‘owned’ by others.Footnote 52 In order for a human being to escape designation as a mere res, or ‘thing’, wholly subject to the despotic control of another,Footnote 53 said human being would require juridical recognition of their libertas (liberty) and caput (civil status, or ‘personhood’) within the terms of the ius quod ad personas pertinet (the law pertaining to persons).Footnote 54
From the outset of the title de Iure Personarum (‘the law of persons’), Justinian observes that ‘the primary division in the law of persons is between those human beings that are free and those that are slaves’.Footnote 55 Read within the wider context of the Corpus Iuris Civile, however, it is plain that ‘a slave was not a “person” at all’.Footnote 56 Though a human being, a slave had neither libertas nor caput Footnote 57 and was governed by the same rules that applied to domestic animals.Footnote 58 In this light, it seems that Roman slaves lacked even the ‘pure passive capacity’Footnote 59 (ie ‘the condition of being eligible to receive the protection of law for one's own sake’) that is the ‘minimum legal recognition that can be conferred on any being’.Footnote 60 Though there were several Imperial rulings which were designed to afford protection to slaves, these were ‘concerned with the specific issue of slaves as property’ and so can be said to be comparable in scope and design to modern animal welfare legislationFootnote 61 (where such falls short of ascribing ‘personhood’ to animals).Footnote 62 As Moyle observes, ‘so far as there is any difference of treatment [between slaves and animals in law] it is due to the slave's possession of reason, so that (a) he is able to increase his master's means by his intellectual as well as by his physical powers, and (b) by manumission he is capable of becoming a “person”’.Footnote 63
The latter point is significant; unlike in a system of slavery which is wholly predicated on racism, in Roman law ‘enslavement could happen to anyone; even to a Roman citizen. Being a slave was no indication of moral or intellectual inferiority’.Footnote 64 This contradistinction between the Roman institution of slavery and the race-based system of slavery which arose in the later European colonies does not imply that the lot of the Roman slave was in any way better than his counterpart in (say) eighteenth century Jamaica.Footnote 65 Neither he nor his African (or African-descended)Footnote 66 compatriot were ‘persons’ within the eyes of the law (of their respective societies) and both were regarded as ‘property’ de jure. The distinction between racial and non-racial slavery lay only in the fact that the lot of a Roman slave who was subsequently freed was generallyFootnote 67 better than a manumitted black slave in any system based on racial segregation,Footnote 68 since the former might attain the ‘coveted’ status of citizenship,Footnote 69 while the latter would not attainFootnote 70 (and indeed it may be said that their descendants have not yet won) full civil rights in the eyes of the law.Footnote 71
The term ‘persona’ was not therefore, in Roman law, synonymous with ‘homo’, just as the word ‘person’ is not identical to the term ‘human being’ in historical, nor indeed modern, Scots law. While the scope of the word ‘person’ has now been extended to encompass incorporeal entities such as companies and business partnerships,Footnote 72 and in some jurisdictions the legal status of ‘person’ has been conferred upon natural resources and landmarks,Footnote 73 in Roman law the term persona was much narrower in scope.Footnote 74 It was not, as Professor Nicholas suggested in his Introduction to Roman Law,Footnote 75 a word with no technical meaning, denoting only ‘as “person” does in ordinary speech today, a human being, whether capable of holding rights and duties or not’.Footnote 76 Instead, as Professor Waelkens observed ‘in legal texts the word was used for the actors in a law suit. When the word occurs in the Corpus Iuris Civile, it has thus to be understood as referring to one of the men present in court’.Footnote 77
Rather than finding use as a device to extend the benefits of ‘personhood’ to entities other than human beings, the status of persona was, consequently, fundamentally exclusive. In addition to being restricted in scope only to ‘natural’ legal persons,Footnote 78 the designation of ‘persons’ also served as a primarily procedural status which distinguished those who held full entitlements under the civil law from those who did not.Footnote 79 As Professor Esposito noted in his text on Persons and Things, this was explicitly by design:Footnote 80 ‘the more human beings that an individual manages to place on the sloping plane of the thing, the more solidly he or she acquires the title of person’.Footnote 81 Thus, not only were slaves excluded from the horizon of personhood, but women and children were likewiseFootnote 82 (though they could be afforded the status of persona if they were represented by a tutor in court).Footnote 83 Generally, in Roman law, those who remained in alieni iuris (in the power of another – ie within the patria potestas of a paterfamilias) were not ‘persons’, though they might have the potential to be recognised as such in certain circumstances.Footnote 84 Slaves and peregrini (foreigners) had no entitlements under the ius civile and so were likewise not personae;Footnote 85 they did not escape the designation of res ascribed to them under the ius quod ad res pertinet (the law pertaining to things) of the ius civile.Footnote 86
Esposito's observation, and the state of Roman law as described above, correlates with the observations of Adam Smith that though ‘the work done by freemen comes cheaper in the end than that done by slaves’,Footnote 87 humankind ‘will generally prefer the services of slaves to that of freemen’Footnote 88 given that ‘the pride of man makes him love to domineer, and nothing mortifies him so much as to be obliged to condescend to persuade his inferiors’.Footnote 89 For as long as man regards women, children, foreigners and his servants as his ‘inferiors’, then he is likely to actively seek to diminish the ‘personhood’ of those whom he perceives as beneath him. Such tendencies will, naturally, be exaggerated in any cultural milieu which finds slavery morally unobjectionable.
As an instrumentum vocale – a ‘speaking tool’ – it is obvious that the slave could be said to ‘hover’, in part, between ‘the regime of persons and things’, in much the same way that ‘wives, sons and insolvent debtors’ did so.Footnote 90 From the above discussion, however, it is likewise plain that as a matter of Roman law, all human beings were – first and foremost – ‘things’, with some such ‘things’ being distinguished from the others primarily by dint of their possession of the status of ‘person’.Footnote 91 To be a ‘person’, in Roman law, was therefore to hold some significant status. This significant status was afforded to those who were sui iuris or paterfamilias and thus entitled to appear in the law courts. Foreigners were denied this status, though they did have the protection of the ius gentium and their own ‘personal’ law,Footnote 92 but slaves – who were also and always denied ‘personhood’ – were mere things subject to be used and abused by their owners however that owner saw fit. Though it is certainly true and notable that several laws were passed, in Roman times, aimed at improving the lot of slaves, it is equally plain that such juridical acts fell far short of affording legal recognition to the personhood – or even the humanity – of those enslaved. As Watson stated in a 1997 work, ‘in restraining cruelty no mention is made of the slave's well-being’.Footnote 93 It is, rather, said only to be ‘in the interest of the state that no one should abuse his property’.Footnote 94
From the above discussion, it may consequently be inferred that the prohibition of slavery in the 2015 Act would have been nugatory in the Roman legal system, as well as in modern Scots law (as is hypothesised, and shall be discussed further, in this paper). If the term ‘slavery’ within the context of s 4 is indeed to be understood as proscribing the holding of another as a slave within a legal framework of property law, then it might be inferred that the wording of the legislation as it stands cannot possibly criminalise the conduct of any private ‘person’ within a Romanistic legal system. At present, s 4 proclaims that ‘a person commits an offence if (a) the person holds another person in slavery’. From the above discussion, however, it is plain that no ‘person’ can be lawfully held in slavery, since it is the absence of juridical ‘personhood’, on the part of the slave, which allows the law to recognise the legal relationship of ‘ownership’ between that slave and their ‘owner’.Footnote 95
It would be impossible, then, to convict one who ‘owned’ a slave, in the Roman sense, of the offence of holding another person as a slave under s 4 of the 2015 Act. Indeed, unlike in Miller, it would likewise be impossible to convict the slave-holder of the offence of holding another ‘person’ in servitude since, in law, the slave-owner has done no such thing. The slave-owner owns a res – a piece of property.Footnote 96 The slave-owner does not own a ‘person’, nor do they hold a ‘person’ in servitude. Rather than standing in any position akin to that of a modern employer (or ‘master’, as employers were historically styled)Footnote 97 when enjoying the benefit of the slave's labour, the slave-owner simply acts as a property owner enjoying ius fruendi: since the slave is a thing, the results of that slave's labour are juridically the fruits of a thing. No ‘person’ is, therefore, held in servitude under such circumstances: within terms of the analysis above, our Roman P1 is P*, but in this instance the enslaved P2 is demonstrably not.
It goes (or should go) without saying that the dehumanisation and depersonalisation involved in the lawful institution of slavery is utterly immoral. The above discussion is liable to affront all modern moral sensibilities and the very discussion of slavery as a ‘legal’ institution has provoked disgust from some legal commentators. With that said, however, the historical position in respect of slavery and servitude must be discussed if the words ‘slavery’ and ‘servitude’ are to be ascribed any real meaning in modern legislation, particularly since the 2015 Act – by drawing on the ECHR – is bound up with the ‘classical’ definition of ‘slavery’. Thus, given the influence that Roman slave law exercised on both the common law and Continental European legal traditions, the above discussion is warranted.Footnote 98 Likewise, consideration of the artificial distinction between slaves as ‘things’ and freemen as ‘persons’ is also warranted within the particular Scottish context, as it is this arbitrary divide that allowed the Court of Session to declare, in 1687, that ‘we have no slaves in Scotland’,Footnote 99 in spite of the provisions of the Act Anent Coalyers and Salters 1606 (the 1606 Act),Footnote 100 which was not repealed until 1775.Footnote 101
(b) Scots law, slavery and serfdom
Viscount Stair affords considerable attention to the subject of liberty, servitude and slavery in his opus, the Institutions of the Law of Scotland.Footnote 102 In the second title of the text, in line with the Romanistic position outlined above, Stair states that ‘bondage exeemeth man from the account of persons, and brings him rather in among things, quae sunt in patrimonio nostro [ie things which might be held by another in private patrimony]’.Footnote 103 Affront to one's liberty, he says, ‘are the most bitter and atrocious’ forms of injury, though the right to liberty is not to be taken as an absolute.Footnote 104 One's liberty might be lawfully constrained for a number of reasons: as a result of obediential obligation;Footnote 105 as a result of penal punishment or civil incarceration for non-payment of debt;Footnote 106 and by the dictate of the sovereign.Footnote 107 In addition to this, Stair recognises that ‘liberty is wholly taken away by bondage, slavery or servitude, which is diametrically opposed to liberty; for as liberty is that power, by which men are sui iuris, so by servitude they become alieni iuris’.Footnote 108 In Stair's schema therefore, in spite of the high level of importance ascribed to individual liberty, ‘bondage, though contrary to the nature of liberty… is lawful, liberty being a right alienable, and in our disposal’.Footnote 109
In common with the Romans,Footnote 110 Stair locates the law of slavery within the ius gentium,Footnote 111 rather than the ius naturale, noting that ‘bondage was introduced by the law of nations, and it is amongst the positive laws of nations settled by common consuetude’.Footnote 112 The ‘leniency’ and ‘mercy’ of the Christian religion had, according to Stair,Footnote 113 by his time effected the abrogation of slavery in almost all European nations (save Spain, Portugal and those nations bordering the Ottoman Empire, who ‘may have slaves to exchange with slaves’),Footnote 114 yet it was nevertheless recognised that adscriptitii (ie ‘serfs’)Footnote 115– ‘who are not absolutely slaves’,Footnote 116 though nevertheless in servitudeFootnote 117 – subsisted in England (as villainage),Footnote 118 ‘but in Scotland there is no such thing’.Footnote 119Adscriptitii, unlike those bound in vassalage or ‘free’ labourers and artisans, were (in Stair's conceptualisation) essentially serfs bound to the land on which they laboured;Footnote 120 they could not leave the land nor could they be sold by their ‘masters’, as they were ‘fixed to and follow’ the land ‘and they are conveyed therewith’.Footnote 121 According to Professor Millar, writing almost a century after Stair,Footnote 122 in Scotland villainage had fallen into disuse by the late seventeenth century ‘without any aid of statute’,Footnote 123 though even by Millar's time ‘the period when this change was effected [had] not been ascertained by lawyers or historians’.Footnote 124
Even while the institution of serfdom was recognised, however, and Scottish adscriptitii, villains or serfs were recognised as being in bondage and so not fully ‘persons’, they were not ‘absolutely’ slaves.Footnote 125 From this, it consequently follows that they cannot be deemed to have been only ‘things’, as Roman slaves were.Footnote 126 Rather, it seems that the Scottish serf – prior to the abrogation of the concept of serfdom – must be thought to have lain in an intermediate field between the law of ‘persons’ and the law of ‘things’. While, in some sense, they may have been viewed as closer to ‘things’ than to ‘persons’ in the eyes of the law, it nevertheless remains the case that it cannot be said that there existed a clear binary between ‘persons’ and ‘things’ in early Scots law. The slave was ‘absolutely’ a thing; the freeman ‘absolutely’ a person. The bondman was something in between; sometimes person, sometimes thing, sometimes both. In effect, their legal position was comparable to that of a slave in the familia under early Roman law;Footnote 127 indeed, when speaking of bondmen, Regiam Majestatem never once utilises the word ‘dominium’ to describe the relationship between bondman and master, but instead, like the earliest Roman sources, uses the term ‘potestas’,Footnote 128 denoting ‘power’ rather than ‘ownership’.
After the systemising efforts of jurists such as Craig, MacKenzie and Stair himself (though Stair was notably critical of the Romanistic schema), the Roman tripartite division of law into ‘persons’, ‘things’ and ‘actions’ was received into early modern Scots law.Footnote 129 It is thus at this juncture – after the institution of agrarian serfdom had vanished from ScotlandFootnote 130 – that a perceived persons/property binary might be said to have first emerged in Scotland, however as with the later divide between ‘property law’ (ie ‘thing-law’) and the law of obligations,Footnote 131 this binary cannot be said to be absolute – and, as such, is to be more appropriately understood as a continuum than an absolute separation. Thus, agrarian serfs, while they existed in Scots law, were undoubtedly in servitude, although they were manifestly not ‘slaves’, since slavery necessarily entails a full denial of the personhood of the slave.
With that said, though emphasising that agrarian serfdom had ceased to subsist in Scotland,Footnote 132 Stair nevertheless accepted that Scots law recognised ‘a kind of bondage’ called ‘Manrent’,Footnote 133 but went on to emphasise that this institution placed the ‘free persons’ in clientela (in vassalage) rather than in bondage, and that in any case it had been abolished by subsequent Parliamentary Acts and custom.Footnote 134 Rather than being conceptualised as slaves (and so ‘things’), under Scots law ‘servants’ were adjudged to be free ‘persons’ who have hired their labour by contract,Footnote 135 just as any modern ‘contract of service’ relationship between employer and employee might be so understood.Footnote 136 Against this background (Stair's Institutions having first been published in 1681),Footnote 137 and combined with Sir George MacKenzie's observation that ‘we have little use in Scotland, of what the Institutions of the Roman Law teach, concerning slaverie… for we as Christians allow no Men to be made Slaves’,Footnote 138 the stage was set for the Court of Session to rule, in 1687, that ‘we have no slaves in Scotland’.Footnote 139
Yet, at the time that Reid was decided, the aforementioned Act Anent Coalyers and Salters of 1606Footnote 140 remained in force throughout Scotland. This legislation provided, inter alia, that no one was to employ a salter, collier or coal-bearer without the approval of the ‘Maister whom they last served’, that ‘vagabonds and sturdie beggers’ could be apprehended and put to work in the mines and that any salter, collier or coal-bearer who left the employ of their master were to ‘be esteemed, reput and halded as theives [sic], and punished in their bodies’. In effect, then, the legislation provided that colliers, salters and coal-bearers were, in like manner to agrarian serfs, absent liberty, bound to the mines in which they laboured, and thus evidently in the power of the mine-owner or master. This state of servitude could only be altered with the leave of the ‘Maister whom they last served’, so this astricted status was life-long.
In spite of the statutes ordaining the bondage of colliers and salters, Stair made no mention of the lot of these unfortunate bondmen in either of the editions of his Institutions published during his lifetime. Only bondage to farms and villages appears to enter Stair's cognisance;Footnote 141 it is only by a later editorial hand that consideration of colliers and salters appears in the Institutions. The consideration given in the later editions of Stair's work is consistent with Scottish legal literature of the eighteenth century. In the intervening period between the second and third editions of Stair's work,Footnote 142 in 1722,Footnote 143 the first Regius Professor of law at the University of Glasgow, William Forbes, published the first volume of his own Institutes of the Law of Scotland.Footnote 144 This work, as Professor MacQueen observed, offers an important insight into the position of Scots law in the period between the appearance of Stair's work and the publication of the later Institute of Bankton.Footnote 145
Though Forbes, like Stair, posited that ‘we have no vestige of slavery remaining in Scotland’,Footnote 146 he – unlike Stair – thereafter went on to compare the position of colliers and salters to that of slaves ‘at the arbitrary pleasure of [their] masters’ who ‘may be sold by him as goods’.Footnote 147 In setting out the effect of the 1606 Act, Forbes implicitly regarded colliers and salters as ‘things’, suggesting that should a master lose ‘possession’ of their labourers, that master might raise an action against ‘any unlawful possessor… the possessor must deliver [the collier or salter] back to their Master within twenty four hours’ under the pain of a fine.Footnote 148 The language of ‘possession’, naturally, implies ‘property’.Footnote 149
Forbes’ Institutions are, in large part, an abridgement of his unpublished life's work,Footnote 150 the Great Body of the Law of Scotland.Footnote 151 This titanic work, which exceeds a million words and remained unfinished (and thus unpublished) at the time of Forbes’ death,Footnote 152 though he had worked on it for some 37 years,Footnote 153 ‘has lain almost unread in Glasgow University Library since 1786’.Footnote 154 The work does, however, ‘provide the fullest account available of Scots law in the early eighteenth century’;Footnote 155 as such, it merits consideration here as it provides an elucidation of the law relevant to salters and colliers which is wholly absent from Stair's account of Scots law.
In common with the enlightenment thinkers of the eighteenth century, the title on Master and Servant in the Great Body begins by positing that ‘by the law of nature all men are free born’.Footnote 156 Like Stair and the Roman jurists, Forbes repeats the view that ‘slavery and bondage were introduced by the law of nations’.Footnote 157 In his account, ‘servants’ are divided into three classes: ‘slaves’, ‘hirelings’ and ‘apprentices’, though only ‘slaves are servants in the most proper sense’.Footnote 158 It is implied that in Forbes’ schema slaves are ‘persons’, since he uses this term to describe that which might be sold or disposed of by the ‘master’.Footnote 159 The assertion that ‘we have no vestige of slavery remaining in Scotland’, present in his Institutes,Footnote 160 is echoed in the Great Body Footnote 161 and, indeed, much of the discussion of the lot of colliers and salters mirrors that which is present in the shorter volume.Footnote 162
Of particular note in Forbes’ Great Body is the author's suggestion that those who are slaves ‘in the rigid sense of the Roman law may come claim their freedom as soon as they come into France, Germany, the United Provinces [the Netherlands], England or Scotland’.Footnote 163 This assertion must have been made at the very least 26 years before the English case of Somerset v Stewart Footnote 164 tentatively endorsed this propositionFootnote 165 and some 32 years before the case of Knight v Wedderburn Footnote 166 unequivocally posited that this proposition is true within Scots law.Footnote 167 The authority on which this proposition rests is, consequently, of particular interest. Forbes cites the English jurist Thomas Wood's New Institute of the Civil Law as authority for his proposition;Footnote 168 Wood, for his part, states much the same as Forbes, though he omits mention of Scotland.Footnote 169
Wood's New Institute was first published in 1704 and ran to four editions, with the last published in 1730.Footnote 170 The third edition, which Forbes appears to have utilised,Footnote 171 retains the unequivocal statement that ‘slaves may claim their freedom’ on arrival in England, Germany and France;Footnote 172 the posthumously published fourth edition likewise provides the same statement, with the wording retained, and unaltered, from the first edition.Footnote 173 Wood's work has been the subject of little scholarly attention,Footnote 174 however, during his lifetime (and for a considerable period thereafter) Wood's ‘Institutes enjoyed considerable popularity in England and in the American colonies’.Footnote 175 For that reason, it is perhaps surprising to find no reference to Wood's work in Somerset v Stewart, though his second significant work, his Institute of the Laws of England, appeared in its tenth edition in that year,Footnote 176 having first been published in 1720.Footnote 177 Unlike Wood's Civil Institute, however, the common law account provides no consideration of the subject of slavery, which perhaps explains why the court of King's Bench felt no impetus to refer to the work, notwithstanding the extensive comparative consideration afforded to the position in other jurisdictions, in the course of that judgment.Footnote 178
In any case, it appears that in both Scotland and in England there existed authority prior to – and post – the Treaty of Union which disavowed slavery as a legal institution.Footnote 179 Notwithstanding this jurisprudential hostility towards the juristic institution of slavery throughout the nascent United Kingdom, slavery retained de facto recognition within eighteenth century Scottish society.Footnote 180 Indeed, it is evident that ‘slaves were a significant presence in eighteenth century Scotland, particularly from the 1740s onwards’.Footnote 181 This fact of life stood seemingly at odds with the letter of the law, given the juridical hostility to the concept of ‘slavery’ expressed by the learned legal writers of the late seventeenth and early eighteenth century.
This juridical hostility continued to be expressed in the Institutional writings published in the latter half of the eighteenth century. Lord Bankton's Institute of the Laws of Scotland, which was modelled ‘after the general model of Stair's Institutions’ and first published in 1751,Footnote 182 also expressed doubt on the existence of slavery as in institution in Scots law.Footnote 183 Like Forbes’ publications, Bankton's work appeared in the interregnum between the publication of the second and third editions of Stair's opus. In discussing ‘the state and distinction of persons’,Footnote 184 Bankton unequivocally posits that ‘persons are all mankind’, though it is accepted that ‘the law considers them only with respect to rights, and their different state in that view’.Footnote 185 Prima facie, in Bankton's schema, it thus seems that though women, children and vassals might be afforded fewer civil rights than others, such does not imply any difference in the ‘personhood’ with which they are imbued by dint of their humanity.Footnote 186 Such correlates with the eighth edition of Wood's common law Institute,Footnote 187 which was published very soon after Bankton's work. In any case, Bankton – like his forbearers – is explicit: ‘slavery, in a proper sense, does not take place with us’.Footnote 188
Nevertheless, Bankton acknowledges that ‘the state of colliers and salters, by our law and custom, resembles, in some respects, that of slaves [in the Roman sense]’,Footnote 189 however it is stressed thereafter that the lot of colliers and salters is more readily comparable to that of adscriptitii.Footnote 190 This comparison was also drawn by Erskine, who noted that colliers, salters and coal bearers were ‘by the law itself, without any paction, bound’ to the perpetual service of the mines.Footnote 191 ‘Sturdy beggars’, ‘vagabonds’, ‘whores’ and ‘theives [sic]’ were, as a result of penal servitude, deprived of their liberty and ‘kept at hard work’Footnote 192 and, along with colliers and ‘indigent’ children, categorised as ‘necessary’ servants in Erskine's schema.Footnote 193 Like Forbes, then, Bankton and Erskine both acknowledged that Scots law recognised a status of ‘quasi-slavery’;Footnote 194 nevertheless, all were equally clear that Scotland (nor indeed any other ‘Christian country) did not countenance slavery.Footnote 195
Bankton and Erskine did, however, differ as to the legitimacy of perpetual servitude in the absence of any statute providing for such. Bankton discountenanced the notion as ‘against natural liberty’,Footnote 196 whereas Erskine found that there was ‘nothing repugnant either to reason, or to the peculiar doctrines of Christianity, in a contract by which one binds himself to perpetual service under a master, who, on his part, is obliged to maintain the other in all the necessaries of life’.Footnote 197 In support of this assertion, Erskine referred to the work of the Dutch jurist Grotius,Footnote 198 making explicit his credentials as a natural lawyer.Footnote 199 Bankton, on the other hand, founded his claim on positive Scots law, referring to the authority of the case of Allan and Mearns.Footnote 200 Therein, it was found that the practice of astriction to the mines, and the ‘quasi-slavery’ of those adscriptitii, was permissible only as a result of statutory authority. Thus, in the absence of any authorising statute, when a number of tacksmen contracted so as to astrict themselves, ‘as adscriptitii or villani’, to their fishing boats, the court reduced the contract on the grounds that such was an impermissible affront to liberty.Footnote 201
There was, however, one criminal case in which a Scottish court implicitly recognised that a Bengali girl was a ‘slave’, and not merely some kind of adscripta or other such servant.Footnote 202 As Professor Cairns notes, however, in that case ‘there was no discussion of the legality of that enslavement or of the nature of that slavery’.Footnote 203 In a number of eighteenth century civil cases, culminating in Knight v Wedderburn, the question of the status of ‘slaves’ was called before the Scottish courts;Footnote 204 each of these cases included comparative discussion of Roman law and it is notable that the two ‘freedom cases’ (Sheddan and Dalrymple) were inconclusive due, in each case, to the deaths of one of the parties.Footnote 205
The litigants in Sheddan and Dalrymple each sought to test the proposition that a slave who was brought to Scotland was to be deemed free upon arrival. Though the court in Sheddan was generous enough to note that the ‘slave’ was ultimately to be deemed ‘free’ at the conclusion of that case, this was only because it was deemed death was sufficient to ‘free the servant from bondage’.Footnote 206 Lord Kilkerran recorded that the Senators of the College of Justice were ‘generally inclined to find that the negro was not manumitted by his being brought to Scotland’,Footnote 207 shedding some doubt upon Scots law's formal institutional repudiation of the concept of slavery at the time of this case. In the case of Dalrymple, the ‘slave’ was ultimately deemed free, though only as a result of the death of the pursuer.Footnote 208 Still, in defence, Spens – the defender – claimed that he was freed by his baptism as a Christian and that ‘by the Laws of this Christian land there is no Slavery nor vestige of Slavery allowed’.Footnote 209 In spite of this, as the material concerning this case is rather fragmentary, it is difficult to discern what the court might have made of Spens’ argument and so nothing concrete can be concluded from the occurrence of this case.Footnote 210
Though the Institutional writers were explicit in their condemnation of slavery, ‘in the proper sense’,Footnote 211 their sources were inconsistent as to the position of perpetual servitude in Scots law. Save Stair, who made no mention of those astricted to the mines, the Scottish jurists accepted that servitude for life was recognised where such was provided for by statute; each agreed that those placed in any form of legal servitude were ‘persons’ in the eyes of the law,Footnote 212 and manifestly not slaves, but were divided as to the criteria necessary to allow for one to be legitimately bound by law to labour for life (or for decades). This final point merits further discussion; as the arguments made by counsel in Stewart Nicholson v Stewart Nicholson indicates, the uncertain status of ‘servitude for life’ allowed scope for the question of a colonial slave's ‘freedom’, in the Roman sense of slavery, to be, potentially, rendered moot.Footnote 213
(c) Slavery, servitude and astriction: a distinction without a difference?
That the status of ‘servitude for life’ was potentially recognised as legally legitimate allowed for counsel to argue that a master of a colonial slave, in Scotland, did not possess the incidents of ‘ownership’ over the slave (at least for as long as the slave was outwith the jurisdiction of the colonies),Footnote 214 but nevertheless retained a right to the services of his slaves. ‘Jamaican slavery was very like the Roman, the essence being the type of possession or control associated with ownership’, but one who is bound to perpetual servitude ‘is in no real sense owned, just as the monarch did not own the sailors compelled by the press gang to serve in the Royal Navy’.Footnote 215 This technical distinction between the status of slavery ‘in a proper sense’ and that of one of perpetual service might be thought merely pedantic; in practical terms, one can only imagine that informing an adscriptitii that he was not technically a ‘slave’ or the ‘property’ of his master would be of cold comfort if he were nevertheless expected to labour for life, for the benefit of his ‘master’, without the hope of improving his circumstances.
The courts and legal practitioners of the eighteenth century were alive to this fact; although this conception of ‘slavery’ did not adhere to the true ‘classic meaning of slavery as it has been practised for centuries’ (since the attendant powers possessed by the ‘master’ were lesser than those enjoyed by as Roman dominus), ultimately the courts came to hold that ‘perpetual service, without wages, is slavery’.Footnote 216 Nevertheless, the ability to distinguish between the concept of Roman slavery, despotic in the letter of the law as well as in practice, and the lesser juristic concept of perpetual servitude, tyrannical in practice, though ostensibly more liberal than the explicitly repressive Romanistic regime, allowed those who were uncomfortable (for whatever reason) with the idea that one human being might ‘own’ another to equivocate on the issue of colonial slavery. Indeed, further to this, it allowed those who were explicitly in favour of the practical outcome of slavery to take public face against it without necessarily prejudicing their financial interests. Such occurred in the case of Knight v Wedderburn itself; in arguing for his entitlement to return his ‘servant’, Knight, to the colonies, Wedderburn's counsel contended that ‘it is almost unfair even to quote the word slavery against [Wedderburn]’.Footnote 217 Though the Scottish institutional writers had each turned their faces against ‘slavery’ in its ‘classical’ sense, eminent jurists such as Stair and Erskine had explicitly enjoined the possibility of de facto slavery by recognising the legitimacy of contracts for perpetual service ‘under whatever conditions were agreed, including service for necessaries without pay’.Footnote 218 Such allowed the Lord President (Dundas) to opine, along with Lord Elliock in Knight, that there was no moral or legal objection to the notion of perpetual, unwaged, servitude.Footnote 219
The Lord Justice-Clerk (Thomas Miller, then styled Lord Barskimming and later Lord Glenlee, with whom the majority agreed), however, rejected this notion; indeed, he was unequivocal in ruling that ‘the law of our land does not allow an express covenant, even of consent, for a servant to serve for life without wages’.Footnote 220 In this, he implied a preference for both Bankton and precedent,Footnote 221 as discussed above. Later editions of the respective Institutions of Stair and Erskine would retain the comments of the original authors endorsing the possibility of perpetual servitude falling short of ‘slavery’ in its classical sense, however each contained a proviso to the effect that such did not accurately represent the law of Scotland. More's edition of Stair's Institutes includes a footnote suggesting that liberty was ‘formerly’ an alienable right;Footnote 222 Ivory's edition of Erskine, for its part, notes that ‘it has [since] been absolutely decided, that a slave, brought from the plantations, acquires his freedom on coming to this country’,Footnote 223 with this proposition being justified by reference to Knight.
The definition of ‘slavery’ was, then, understood to be broader in the late eighteenth century than it was in Roman law and, indeed, modern international law.Footnote 224 With that said, however, for the status of ‘slavery’ to exist, there nevertheless required to be some legal recognition of the master-‘slave’ relationship. As counsel for Knight argued, ‘many have defined slavery to be a title to the industry of another; and this indeed is the essence of slavery, and whips, and chains, and tortures are only its attendants’.Footnote 225 Arbitrary force might bring about de facto ‘slavery’, in a non-technical sense, but this status would not receive recognition in the courts. It would be no more than an unlawful detention, with the attendant cruelties and tortures being regarded as further and additional delicts.Footnote 226 Thus, in the absence of ‘title’ (whether proprietary or contractual) allowing the ‘master’ some claim to the labour of the ‘slave’, the purported master would simply be regarded as a delinquent who had illegally affronted the personality interests of the person detained.Footnote 227
Since the legal condition of ‘slavery’ could not arise absent judicial recognition of either a ‘master's’ exercise of dominium over his slave per the ‘classical’ definition, or of the lawfulness of unremunerated perpetual servitude per the eighteenth century conceptualisation, it would appear that the decision of the Court of Session in Knight rendered it wholly impossible for an individual to contravene the ‘slavery’ provision of s 4 in the 2015 Act. Certainly it can be concluded that the status of those astricted to the mines, or otherwise bound to labour for life, could well fall within the definition of ‘servitude’ within the context of the modern legislation, since such individuals were consistently recognised as juristic persons, though they were subject to the ‘particularly serious’ denial of liberty attached to the status of serfdom. In spite of this fact, however, due to the very recognition of their juridical ‘personhood’, the astricted miner could not be described as a ‘slave’ within the terms of the legislation, as they were not ‘owned’ as is presently required by s 4. Indeed, even under the expansive later eighteenth century definition, the miners in question would not be ‘slaves’ as, though they were bound to labour in perpetuity, they were not unwaged and were, in fact, rather well remunerated for the work that they were bound to carry out.Footnote 228
An unwaged perpetual servant, though, would likewise not be recognised as a ‘slave’ under the 2015 Act, even in spite of the fact that the courts of the eighteenth century would have recognised this person's condition as one of slavery (were the ‘master’ to hold claim to lawful title to the labour of the slave). Though the ‘slave’, in this context, is recognised as a ‘person’ (P* and so potentially P2 within the context of the 2015 Act) and so ostensibly within the remit of s 4, the ‘master’ (P1) does not, here, hold genuine rights of ownership over P2. Thus, (I) – a necessary component for a conviction under the legislation – cannot be demonstrated and it becomes apparent that – though undoubtedly imperfect – the definition of ‘slavery’ recognised by the Court of Session in the eighteenth century is, in fact, broader than that which now subsists in twenty-first century Scotland. In any case, s 4 remains of no utility to one kept in ‘slavery’ under either of these definitions, since all ‘slaves’ are instantly freed upon arriving in the jurisdiction of the Scottish courts and so their status or condition of ‘slavery’ ceases to abide at that time.
3. ‘Slaves’ in the twenty-first century
The definition of ‘slavery’ has been settled as a matter of international law since the 1926 Slavery Convention held that it was to be understood as ‘the status or condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised’.Footnote 229 This rather narrow definition has, in part, served as a bulwark against the overly-broad definitions of the term which began to proliferate throughout the twentieth century and led to worries that the word might be rendered effectively meaningless.Footnote 230 Though the definition is perhaps commendable for this reason,Footnote 231 there is still ‘no escaping the fact that the [Convention definition] emerged at the height of European imperialism qua colonialism’ and that it ‘was meant to be applicable, in the main, to the “Other” [ie only to those who were not members of the League of Nations]’.Footnote 232 The Convention definition – received into European human rights law as it was – then serves as a means of penalising states which enjoin slavery, rather than as a means of protecting private persons from being maltreated or dehumanised by other private persons.
While, then, as a matter of international law, the United Kingdom could be said to fail in its obligation under Article 4 of the ECHR if it permits one person to claim ownership of another within the context of any of the UK legal systems – and indeed, the Scottish Parliament would not be competent to introduce any law re-instituting slavery within its jurisdictionFootnote 233 – it ultimately appears that Article 4, in these terms, does not provide direct protection to individuals who have been kept in ‘slavery’ by private persons. Protection for individuals who are enslaved de facto (as opposed to de iure) is afforded – as it was in the eighteenth century – by the common law of, and legislative enactments pertaining to, the protection of personality rights.Footnote 234 One who holds another in a status analogous to slavery might be pursued, with considerable likelihood of success, in the civil courts and prosecuted for depriving a person of their liberty in the criminal courts.Footnote 235 For slavery to be functionally criminalised as a nomen juris, as was intended with the passing of (what is now) s 4 of the 2015 Act, Parliament would have to pass legislation which paints the offence with a broader brush than the ECHR. At present, both international law and domestic Scots law bind the definition of ‘slavery’ to the existence of a legal institutional framework of ‘ownership’. This, as demonstrated, is a more restrictive definition than had begun to emerge in eighteenth century Scotland, which recognised that compelling another to perpetual servitude without wages was simply ‘slavery’, though this did not adhere to the ‘classical’ definition of that term.
That the 1926 Convention applied a more restrictive definition of ‘slavery’ than that which had emerged in the eighteenth century is unsurprising. The Convention, though ostensibly humanitarian, was designed so as to serve the ‘political interests of the colonial powers amongst the original signatories to [it]’.Footnote 236 By defining ‘slavery’ in the classical Roman sense, the European powers were able to ‘virtue-signal’ to the ‘uncivilised’ nations of the world, by condemning a practice which they themselves had proscribed. From the mid-nineteenth century, the eradication of ‘slavery’, in this sense, in the ‘backward’ regions of the world had come to be viewed as an element of the ‘white man's burden’ which resultantly justified further colonial expansion.Footnote 237 By strictly confining the definition of ‘slavery’ to the understanding of that term as emerged from Roman law, colonialists were able to impose systems of labour which were as, or more, brutal than ‘slavery’, but which were not proscribed as they did not institutionally reify those subject to such regimes.Footnote 238
Although other international instruments, such as the United Nation's Supplementary Convention in 1956,Footnote 239 went further than the 1926 Convention in obliging signatories to abrogate serfdom, debt-bondage and other such conditions, the definition of ‘slavery’ remained unchanged in such instruments.Footnote 240 The ECHR has continued in like vein, by co-opting the definition of ‘slavery’ as presented in the 1926 Convention without seeking to expand it beyond situations in which a nation-state institutes a legal regime in which certain human beings are institutionally reified and recognised, as a matter of law, as being ‘owned’ by others. As an international instrument, this position is defensible, notwithstanding the problematic context in which the drafters of the 1926 Convention settled on the definition of ‘slavery’. At an international level, there ought to be a customary proscription of ‘slavery’ in the Roman sense; no state should be permitted to introduce (or re-introduce) such an abomination within its national law.Footnote 241 With that said, however, ‘modern slavery’, which the 2015 Act (and the equivalent legislation in England and Wales) seeks to proscribe, is a phenomenon which is evidently distinct from both Roman slavery and the slavery of the Americas and European colonies. As O'Connell-Davidson observed, ‘the legalistic approach to the definition of slavery worked perfectly well for anti-slavery campaigners prior to the abolition of chattel slavery’,Footnote 242 but ‘in a post-abolition world no one can “be” a slave in the strictest nineteenth-century sense of occupying a legally recognised status category of person as property’.Footnote 243 Accordingly, in constructing a legal definition of ‘slavery’ in domestic law, national legislatures must recognise the limitations of the present definition which subsists in international law.
In recognition of this fact, it is here submitted that the rights set out in the ECHR should not be regarded as the ‘gold standard’ of rights which might be afforded by law; rather, those rights should be properly viewed as the minimum standard of rights which a legal system should be expected to uphold. Indeed, as Lord Bingham observed in the 2004 case of R v Special Adjudicator, ex p Ullah, ‘the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’.Footnote 244 In like vein, it might be said that it is the duty of national legislatures to go beyond the letter of the Convention in implementing legislation to protect the human rights and interests of all in society.Footnote 245 As such, rather than taking the ECHR definition of ‘slavery’ as the starting point, the Scottish Parliament should instead take time to consider the precise nature of the harm that it wishes to criminalise by legislation of this kind. In doing so, it should be plain to see that the harm caused by modern slavery is not the same as that perpetrated by the Romans, or by European colonial ventures, but rather that it is a harm of an altogether more insidious kind. Such requires the legislature to consider, in detail, the nature of the wrong which it seeks to proscribe before ultimately coming up with its own definition of the term ‘slavery’, in order to ensure that the particular wrong is indeed thus prohibited. A necessary element of this, it is thought, is the decoupling of the understanding of ‘modern slavery’ from the ‘classical’ definition which remains fundamentally predicated upon the existence of a legal regime allowing ‘ownership’ of human beings.
As Bales notes, ‘slavery is, first and foremost, a state of being – not a legal definition’.Footnote 246 To tackle the issue of ‘modern slavery’, however, some kind of legal definition is required. Although it might be contended that the horrors of colonialism are such that the term ‘slavery’ should not be diluted by expanding to include situations other than those in which there is anything less than an institutional denial of the personhood of human beings,Footnote 247 if any legislative provision akin to s 4 of the 2015 Act is to have any legal effect, and not serve as mere headline-grabbing window-dressing, the definition of ‘slavery’ must expand beyond the limited, ‘classical’, sense in which it is used in international law. Indeed, to be effective, any such definition must be decoupled not only from questions of ‘ownership’, but from wider questions of legal title, as the situation in respect of the eighteenth century Scottish conception of ‘slavery’ makes clear. If, in order to prove that a ‘person’ held another in ‘slavery’, one must prove that the law recognises some lawful relationship between those persons, the prohibition becomes, axiomatically, oxymoronic. For that reason, it is here submitted that the definition of ‘slavery’, within the terms of the 2015 Act, might be more effective if it were understood to amount to the occurrence of a situation in which, through their actions in depriving another person of their liberty, a person purports to hold another person as their ‘property’, treating them as though they held the status of ‘slave’, or otherwise purports to exercise rights of ownership over that person.
It is not here suggested that the above amounts to an ideal definition of ‘slavery’. It is simply posited that acceptance of this definition – or one like it – would avoid the issues, which have been identified in the course of this paper, attached to the present definition in international and domestic Scots law as it stands. Under such a definition, there would be no need to prove that there existed any recognised legal relationship between the ‘master’ and ‘slave’; likewise, that the law recognises the ‘slave’ as a ‘person’ would not be problematic, since the proposed definition would not require there to be a juridical denial of the ‘slave's’ ‘personhood’, as is presently required. What is key, to any legal definition of ‘slavery’ in national law, is that the practical reality of the ‘slave's’ experience should be placed at the centre of that definition. As Patterson recognised, slavery is characterised by ‘the absolute power (in practice) [present author's emphasis] of the master over his slave, the latter becoming merely an extension of the will and household of the former’ as well as ‘the deracination and socio-cultural isolation of the slave’.Footnote 248 Such can be practically demonstrated in the absence of any institutional or legal recognition of the relationship between ‘master’ and ‘slave’:Footnote 249 By emphasising that a simulacrum of ‘ownership’, rather than actual legal ownership, will suffice to establish ‘slavery’, as is suggested here, the courts would not be bound to hold that ‘the definition of slavery involves … rights of ownership’ and thus that ‘there was no evidence [and could not possibly be evidence] upon which they could hold that the complainer had been held in a state of slavery’, as was found to be the case in Miller.
In any case, whether the author's proposed definition is deemed acceptable or not, it is clear that, presently, the definition of ‘slavery’ contained within the 2015 Act is not fit for purpose. Within the terms of the legislation as it presently stands, it is not possible for a court to ever convict anyone who is charged with holding another human being as a slave. Such is made clear by the decision of the court in Miller; due to the letter of the law as set out in the 2015 Act, the court had no choice but to link the concept of slavery to the legal conception of ‘ownership’. Since Scots property law remains rooted in Roman jurisprudence, there was no scope for the courts to make use of a purposive interpretation of the 2015 Act – the ‘definition of slavery… involves rights of ownership’ and, since Scots law knows of a defined concept of ‘ownership’, there could be no evidence that the accused therein held another ‘person’ as a slave. As such, when the time comes for Human Trafficking and Exploitation (Scotland) Act 2015 to be reviewed, it is plain that the legislature must do more to ensure that the wrong which they wish to proscribe is adequately defined within any subsequent legislation. The first step to take in this process is clearly the decoupling of the domestic law definition of ‘slavery’ from the understanding of that term that has emerged in international law and international legal instruments.
Conclusion
From the above discussion, it is clear that the 2019 case of Miller v HM Advocate has laid bare a notable problem with s 4 of the Human Trafficking and Exploitation (Scotland) Act 2015. If slavery involves, necessarily, one human being ‘being in the legal ownership of another’,Footnote 250 then the crime of slavery cannot occur in any jurisdiction which does not juridically recognise the possibility of legal ownership of human beings. Though Scotland, like most European jurisdictions, recognised the status or condition of agrarian serfdom, this institution died out at a relatively early stage in the development of Scots law. In any case, given the narrowness of the ‘classical’ definition of slavery, these serfs were manifestly not slaves. Though some modern writers have described the condition of colliers and salters as akin to slavery, it appears that their lot was closer in juridical nature to serfdom. Thus, those individuals astricted to the mines were not ‘slaves’ within the ‘classical’ meaning of slavery as it subsisted in Roman law (and, indeed, in modern international law), since the miners were both juristically recognised as ‘persons’ and remunerated for their labour.
Although the Scottish academic and institutional writers of the seventeenth and eighteenth century were hostile to the institution of slavery, and consistently expressed the view that ‘we have no vestige of slavery remaining in Scotland’, as a result of the UK's colonial ventures (in which many prominent Scots were enthusiastic participants) slavery was something of a fact of life in eighteenth century Scotland. Nevertheless, the question of whether or not individuals were lawfully owned or held in slavery, in Scotland, was undecided until the 1778 case of Knight v Wedderburn unequivocally held not only that Scots law did not recognise the institution of slavery in its Roman sense, but also that that ‘the law of our land does not allow an express covenant, even of consent, for a servant to serve for life without wages’. This recognition that ‘perpetual service, without wages, is slavery’ meant that Scots law, since this time, has unequivocally refused to recognise the legal validity of any relationship akin to ‘slavery’ in an extended sense and so any individual who is held as a slave in another jurisdiction becomes free upon arrival in Scotland.
As a result of this, it is presently impossible for a private individual to engage in conduct which might see them convicted of a charge of ‘slavery’ under s 4 of the 2015 Act. Any individual who obtains ‘ownership’ of a human being in a jurisdiction other than Scotland would cease to enjoy ownership of their slave upon reaching the jurisdiction of the Scottish courts. Although this slave-owner might be liable for any number of delicts, and could be criminally liable for depriving another person of their liberty, were they to continue to act as ‘master’ of another human being, the nomen juris of slavery would not attach to conduct of this kind at present. As it stands, the definition of ‘slavery’ – as it subsists in international and European human rights law, and so by association s 4 of the 2015 Act – serves as a means of obliging states to refrain from instituting a legal order which recognises the legal validity of ownership of human beings.
If the Scottish government wishes to afford prosecutors the means to try cases involving ‘human trafficking’ or ‘modern slavery’ as ‘slavery’ in any nominate sense, the definition of the term ‘slavery’, within the context of the present legislation, must be revised. This paper makes no pretence to proffer the perfect definition of ‘slavery’ fit for the challenges we face in the modern world. The definition suggested in this paper is simply indicative of one way in which the law might progress, if it is to effectively criminalise modern slavery, as the 2015 Act intended. Whatever weight is attached to the suggestion that ‘purporting’ to exercise ownership over another ought to amount to ‘slavery’, the primary submission of the present piece simply remains a request that, when the time comes for the Scottish Parliament to review s 4 of the 2015 Act, our legislators take seriously the task which is before them and go beyond the confines of the unfit ‘classical’ – and ultimately regressive – definition of the term which exists as the present norm in international law.
