The Evidence of Black Slaves in Scotland During the Eighteenth Century, A Problem of Roman Law

Until 1778 and the decision in favour of freedom in Scotland by the Court of Session in the case of Knight v. Wedderburn, a number of black men and women can be traced as held as slaves in eighteenth-century Scotland. The lower courts had hitherto accepted this position and litigation before the Court of Session itself had also at one stage threatened to accept their status as slaves. The problem was that, if, as was argued, slavery was compatible with the law of Scotland and endorsed by the ius gentium and (some at least argued) by the ius naturae, and hence potentially recognisable in Scotland, the law made no provision for the further regulation of the details of slavery. This created problems about, for example, manumission of a slave. How did a freed slave show he was free? Masters developed a variety of ruses to generate a document that showed that the black individual who held it was free. Another problem that arose related to evidence or testimony in court. Here were two problems. First, not all slaves were baptised as Christians, and hence could not take the oath necessary to give testimony. Secondly, while the state of dependence of the slave made him or her potentially not a “habile” witness, more significantly, did their status as unfree prevent such an individual from being a witness at all? These issues arose in litigation in the early 1770s in divorce litigation before the Commissary Court in Edinburgh, where a party to an action for divorce called an alleged slave as a witness. The lack of regulation of slavery meant that the court was in a quandary as to what to do. The paper will explore this issue and how the reference to Roman law, still considered as a potential source, was not found helpful, given that the Roman legal texts required that slaves generally give evidence under torture. It will thus demonstrate the problems that arose from the acceptance at some level of slavery, but without any supporting legal institutions.