An Introduction to Roman-Dutch Law by Robert Warden Lee-1915

GENERAL INTRODUCTION

The Roman-Dutch Law: The phrase ‘Roman-Dutch Law’ was invented by Simon van Leeuwen,[1] who employed it as the subtitle of his work entitled Paratitula Juris Novissimi, published at Leyden in 1652 and republished in 1656. Subsequently his larger and better known treatise on the ‘Roman-Dutch Law’ was issued under that name in the year 1664.

The system of law thus described is that which obtained in the province of Holland during the existence of the Republic of the United Netherlands. Its main principles were carried by the Dutch into their settlements in the East and West Indies; and when some of these, namely the Cape of Good Hope, Ceylon, and part of Guiana, at the end of the eighteenth and the beginning of the nineteenth century, passed under the dominion of the Crown of Great Britain, the old law was retained as the common law of the territories which now became British colonies. With the expansion of the British Empire in South Africa, the sphere of the Roman-Dutch Law has extended its boundaries, until the whole of the area comprised within the Union of South Africa, representing the four former colonies of the Cape of Good Hope, Natal, the Transvaal, and the Orange River, as well as the country administered by the British South Africa Company under the name of Southern Rhodesia, has adopted this system as its common law. This is the more remarkable since in Holland itself and in the Dutch colonies of the present day, the old law has been replaced by modern codes; so that the statutes and text-books, which are still consulted and followed in the above-mentioned British dominions, in the land of their origin are no longer of practical interest.[2]

Though to indicate in general terms the nature of the Roman-Dutch Law is a matter of no great difficulty, precisely to define its extent in time or space is not so easy. Its origin,Derived from the two sources of Germanic Custom and Roman Law, the Roman-Dutch Law may be said to have existed, so soon as the former of these incorporated elements derived from the latter. Undoubtedly such a process was at work from very early times. Long before the Corpus Juris of Justinian had been ‘received’ in Germany, the Codex Theodosianus (A. D. 438) had left its mark upon the tribal customs of the country now comprised within the limits of the kingdoms of Holland and Belgium.[3] and development.Later, the various influences of the Frankish Monarchy and of the Church and Canon Law[4] forged fresh links between Rome and Germany. The general reception of the Roman Law into Germany and Holland in the fifteenth and sixteenth centuries completed a process, which in various ways and through various channels had been at work for upwards of a thousand years.[5]

For many centuries after the dissolution of the Frankish Empire there was no general legislation. Under the rule of the Counts of Holland the law of that province consisted principally in general and local customs supplemented to an uncertain degree by Roman Law. The numerous privileges (handvesten) wrung from the Counts by the growing power of the towns only tended to complicate the law by a multiplication of local anomalies.[6] In such a state of things it is not surprising that men should have resorted to the Roman Law as to a system logical, coherent, and complete.[7] Later, under Spanish rule, came an era of constructive legislation; but by that time the victory of the Roman Law was already assured.

The reception of the Roman Law in the Netherlands; Prominent amongst the causes which stimulated the reception of the Roman Law in this its latest phase was the establishment of the Great Council at Mechlin[8] in the year 1473 with jurisdiction over all the provinces of the Netherlands then subject to the Duke of Burgundy. This Court, which continued to exist until the War of Independence,[9] did much to assimilate the law in the various provinces, and thus exercised a jurisdiction comparable to that of the Judicial Committee of the Privy Council or (in a narrower field) of the Appellate Division of the Supreme Court of South Africa at the present day. Nicholaus Everardus,[10] one of our earliest authorities for the Roman-Dutch Law, was President of this Court in 1528.[11] Perhaps we shall not be wrong, then, if we select the year of the institution of this tribunal as the starting-point of the system which we know by the name of the Roman-Dutch Law.[12]

Unequal in the various provinces.The reception of the Roman Law was by no means equally complete in all the provinces of the Dutch Netherlands.[13] It was most far-reaching in Friesland, least so in Overijssel and Drenthe. The other provinces lay at various points between these extremes. It follows that the laws of no two provinces were precisely the same. There is no reason why we should not, if we please, include all these systems imder the name of ‘Roman-Dutch Law’. In practice, however, the phrase is usually applied more particularly to the law of the province of Holland. This is accounted for partly by the hegemony, constantly tending to domination, which Holland exercised over the other provinces during the whole continuance of the Republic, partly by the fact that the principal writers upon the romanized law of the Dutch Netherlands belonged to this province.

The extent of the reception matter of controversy. If we ask to what extent the Roman Law was received in the Netherlands in general and in the province of Holland in particular, we incur the risk of taking sides in a controversy of rival schools.[14] There are those who regard Grotius, Van Leeuwen, Voet, and the other romanists as traitors to the law of their country, which, it is inferred, they enslaved to an alien system. So far as the issue is purely historical the present writer does not offer an opinion. For the lawyer, he submits, the question is not what the law was when these jurists wrote, but what it was when they had written. In the history of institutions it is sometimes more important to know what was thought to be true than to know what was true in fact. At all events, no one disputes the fact of the reception of the Roman Law. What is questioned is the degree to which the reception went. For our part, we shall be content to accept the dictum of Van der Linden: ‘In order to answer the question what is the law in such and such a case we must first inquire whether any general law of the land or local ordinance (plaatselijke keur) having the force of law or any well-established custom can be found affecting it. The Roman Law as a model of wisdom and equity is, in default of such a law, accepted by us through custom in order to supply this want.’[15] The limits of this acceptance are defined by Van der Keessel in a series of theses[16] which Professor Fockema Andreae recognizes to be substantially correct.[17]

Legislation under Spanish rule. During the period of Spanish rule legislation became active. Many useful measures were promulgated by Charles V, such as the Placaat of May 10, 1529,[18] relating to the transfer and hypothecation of immovable property, and, above all, the Perpetual Edict of October 4, 1540.[19] In 1570 his son Philip II issued a Code of Criminal Procedure,[20] which regulated the practice of the Dutch Colonies until superseded by the humaner provisions of the English Law.[21] The Political Ordinance of April 1, 1580,[22] though enacted by the States of Holland and West Friesland, not by the States-General, must also be mentioned as one of the formative elements of the modern law. The Civil Procedure of all the Courts was regulated by another Ordinance of the same year and day.[23]

The Roman-Dutch Law in Holland. The history of the Roman-Dutch Law during the existence of the Dutch Republic is for our present purpose the history of the authorities from whom we derive our knowledge of it. To these we shall presently refer. In the home of its origin the Roman-Dutch Law as a separate system survived by a few years the dissolution of the Republic of the United Netherlands. In 1809 it was superseded by the Napoleonic Codes, which in turn gave place in 1838 to the existing codes in force in the kingdom of the Netherlands. Van der Linden, the latest writer on the old law, was also the earliest writer on the new. When the old system crumbled beneath his hands he left unfinished his projected Supplement to Voet’s Commentary upon the Pandects;[24] applying his tireless industry in a new field, he became to his countrymen the interpreter of the laws of their conqueror.[25] The existing Dutch Civil Code, however, in many respects reverts from the rules of the French law to the earlier law of Holland.

Having said thus much of the Roman-Dutch Law in general, we shall proceed next to speak more particularly of its history in the Roman-Dutch Colonies,[26] for by that name we may conveniently indicate the British possessions in which this system obtains. After that we shall go on to speak of the sources from which our knowledge of the Roman-Dutch Law is derived.

The Roman-Dutch Law in the Dutch Colonies. The two great trading companies of East and West, the Dutch East India Company incorporated in 1602, and the Dutch West India Company incorporated in 1621, carried the Roman-Dutch Law into their settlements. The Cape was occupied by Van Riebeek in 1652. The maritime districts of Ceylon were won from the Portuguese in 1656. The Dutch settlements upon the ‘Wild Coast’ of South America, which came to be known as Guiana, date from the early years of the seventeenth century. How far the Dutch Statute Law was in force in the Colonies.How far the statutes of the mother country were in force in these Colonies the evidence hardly allows us to say. On principle they would not apply unless expressly declared to be applicable, or at least unless locally promulgated;[27] but some may have been accepted by custom as part of the common law.[28] As regards laws of the patria passed subsequently to the date of settlement it may be thought that the burden of proof lies on him who alleges their application. The fact is that the States-General legislated but seldom for the Colonies, having delegated their functions in this regard to the two Chartered Companies of East and West. These acted through their Committees, the Councils of XVII and the Council of X respectively; and the East India Company also, through its Governor-General in Batavia, issued rules for the government of the various stations, which, if locally promulgated, had binding force until superseded or forgotten.[29] In addition to these there were the enactments of the local governors. Failing all the above and any colonial custom having the force of law, recourse was had to ‘the laws statutes and customs of the United Netherlands’ and, where these were silent, in the last resort to the Law of Rome.[30] It may be supposed, since the Dutch Colonies stood in no peculiar relation to the province of Holland more than to any other provinces of the Union, that even general customs of this province had no preferential claim to acceptance in the Colonies. In theory this is true. In practice, perhaps, the predominant partner carried the day. In South Africa at all events there seems to be some presumption in favour of the admission of a general custom of Holland rather than that of any other province as part of the common law of the Colony.[31]

The Roman-Dutch Law in the Colonies under British Rule:

(a) At the Cape;The Dutch settlements of the Cape of Good Hope, Ceylon, and Guiana, passed into the hands of the British at the end of the eighteenth and the beginning of the nineteenth century. The Cape was taken from the Dutch in 1795, given back in 1803, and retaken in 1806, since when it has remained part of the British Dominions. It does not appear that any express stipulation was made upon the occasion of either the first or the second cession for the retention of the Roman-Dutch law. Its continuance is the expression of the settled principle of English law and policy that colonies acquired by cession or by conquest retain their old law, so long and so far as it remains unrepealed. In a system derived from the Civil Law repeal may be effected tacito consensu as well as alia postea lege lata; so that as regards the Cape Province we may state the presumption to be that, except so far as they have been abrogated by legislation or by the growth of a custom inconsistent therewith, the laws which obtained under the Dutch Government remain in force at the present day.[32] Custom, however, seems to have made short work with the pre-British statute law of the Colony. The earliest collected edition of the local statutes (1862) contains only nine enactments prior to 1795, and the latest edition (1895) only five. The remainder of the Dutch placaatenreglementenadvertissementen, &c. (whether emanating from the home country or from Batavia, or locally enacted) seems to have been abrogated by disuse. We are speaking, of course, of the statute law subsequent to 1652, the date of the Dutch occupation of the Cape. The home legislation prior to that date may, unless inapplicable or abrogated by disuse, be regarded as forming part of the common law of the Colony. An exception, too, must be admitted in favour of the Octrooi to the East India Company of January 10, 1661, which, together with the Political Ordinance of 1580 and the Interpretation thereof of 1594, defines the law of intestate succession for the whole of Roman-Dutch South Africa.

(b) In Ceylon;In Ceylon the continuance of the Roman-Dutch Law was guaranteed by the Proclamation of Governor the Honourable Francis North of September 23, 1799, which declared that the administration of justice and police should ‘henceforth and during His Majesty’s pleasure be exercised in all Courts of Judicature, Civil and Criminal, according to the laws and institutions that subsisted under the ancient government of the United Provinces subject to such deviations and alterations as have been or shall be by lawful authority ordained and published’.[33] The central portion of the island did not pass under British rule until 1815, but the Dutch Law was applied to this region also by Ord. No. 5 of 1852.[34] (c) In British Guiana.In Guiana the existing laws and usages were expressly retained in the articles of capitulation of Essequibo and Demerara dated September 18, 1803. A similar provision is contained in the Letters Patent of March 4, 1831, by which the three settlements were constituted a single colony under the name of British Guiana[35].

General result.It results from what has been said that the foundation of the law of Cape Colony is the Dutch Law as it existed in that settlement in the year 1806; that the law of Ceylon is based upon the Roman-Dutch system administered in the island in 1796;[36] and that the law of British Guiana rests upon a substructure of Dutch laws and usages having authority in the settlements of Essequibo, Demerara, and Berbice in the year 1803.

It remains to speak of the geographical extension of the Roman-Dutch Law in South Africa.

Geographical extension of the Roman-Dutch Law in South Africa.So long as the boundaries of Cape Colony enlarged themselves by gradual and inevitable advance, so long the Dutch civil law extended its sphere by the same natural process of expansion without express enactment. But before the middle of the last century the era of annexation had begun.

Natal.Natal was annexed to the Cape by Letters Patent of May 31, 1844, and this was followed by Cape Ordinance No. 12 of 1845, confirming the Roman-Dutch Law in and for the district of Natal. This remains the common law of the Colony, which was called into existence as a separate entity by Royal Charter of July 15, 1856; and now the Natal Act No. 39 of 1896 provides that: ‘The system, code, or body of laws commonly called the Roman-Dutch law as accepted and administered by the legal tribunals of the Colony of the Cape of Good Hope up to August 27, 1845, and as modified by the Ordinances, Laws, and Acts now in force, heretofore made or passed in this Colony by the Governor or Legislature thereof, is the law for the time being of the Colony of Natal, and of His Majesty’s subjects and all others within the said Colony’.

Zululand.The law of Natal, with some reservations, obtains also in Zululand, which became part of Natal on December 30, 1897.

Basutoland.In Basutoland, by proclamation dated May 29, 1884, the law to be administered (save between natives) is, as nearly as the circumstances of the country permit, the same as the law for the time being in force in the Colony of the Cape of Good Hope; but Acts of the Cape Legislature passed after the date of the Proclamation do not apply.

Bechuanaland Protectorate.By Proclamation No. 36 of 1909, the law of Cape Colony is to be administered, as far as practicable, in the Bechuanaland Protectorate to the exclusion, however, of subsequent Cape statutes.

Southern Rhodesia. By the Southern Rhodesia Order in Council of October 20, 1898, s. 49 (2), the law of Cape Colony as it stood on June 10, 1891, applies in Southern Rhodesia, except so far as that law has been modified by any Order in Council, Proclamation, Regulation or Ordinance in force at the date of the commencement of the Order.

Transvaal and Orange Free State. In the Republics the Roman-Dutch Law remained in force almost unaltered up to the date of annexation.[37] It is continued in the Orange River Colony (now, once more, the Free State) by Proclamation No. 3 of 1902, s. 1, and in the Transvaal by Proclamation No. 14 of 1902, s. 17. But in each of the new Colonies extensive alterations have been made so as to bring the law into closer harmony with the system obtaining in the adjoining territories.

Swaziland. By Proclamation of February 22, 1907, the Roman-Dutch common law, save in so far as the same has been modified by statute, is law in Swaziland.

The Union of South Africa.By the South Africa Act, 1909 (9 Edw. 7, ch. 9), which took effect on May 31, 1910, the four Colonies of the Cape of Good Hope, Natal, the Transvaal, and the Orange River Colony[38] were united in a Legislative Union under one Government under the name of the Union of South Africa (s. 4), and became original provinces of the Union under the names of Cape of Good Hope, Natal, Transvaal, and Orange Free State respectively. Subject to the provisions of the Act, all laws[39] in force in the several Colonies at the estabUshment of the Union are continued in force in the respective provinces until repealed or amended by the Parliament of the Union, or by the provincial Councils in matters in respect of which the power to make ordinances is reserved or delegated to them (s. 135).

The sources of the Roman-Dutch Law.The last portion of this Introduction relates to the authentic sources of the Roman-Dutch Law, which are also the primary sources of our knowledge of that system. These are:

  1. Treatises.
  2. Statute Law.
  3. Decisions of the Courts.
  4. Opinions of Jurists.
  5. Custom.

i. Treatises.I. Treatises.[40] The numerous works of the Dutch jurists, written in Dutch and Latin at various dates from the sixteenth to the nineteenth centuries, are cited to-day as authoritative statements of the law with which they deal. A modern text-book has no such authority. The rules therein expressed are merely opinions which Counsel in addressing the Court may, if he pleases, incorporate in his argument, but which have no independent claim to attention, however eminent their author. The works of the older writers, on the contrary, have a weight comparable to that of the decisions of the Courts, or of the limited number of ‘books of authority’ in English Law. They are authentic statements of the law itself, and, as such, hold their ground until shown to be wrong. Of course the opinions of these writers are very often at variance amongst themselves or bear an archaic stamp. In such event the Courts will adopt the view which is supported by authority or most consonant with reason; or will decline to follow any, if all of the competing doctrines seem to be out of harmony with the conditions of modern life; or, again, will take a rule of the old law, and explain or modify it in the sense demanded by convenience.

Writers of the seventeenth century.The principal writers on the old law and their principal works are the following:

Seventeenth Century

H. de Groot. Inleiding tot de Hollandsche Rechtsgeleertheyd (‘s Gravenhage, 1631); the same with notes by Groenewegen (1644); the same with added and more extensive notes by W. Schorer (1767).[41] This is the best old edition. The best modern edition is that with historical notes by Professor Fockema Andreae. There is a translation by Sir A. F. S. Maasdorp.

Arnoldus Vinnius.[42] Commentarius in IV libros Institutionum Imperialium (1642). This well-known work contains copious references to the jus hodiernum. The best edition is that with notes by the Prussian jurist Heineccius.

S. van Groenewegen van der Made edited the Inleiding of Grotius in 1644. In 1649 he produced his well-known Tractatus de legibus abrogatis et inusitatis in Hollandia vicinisque regionibus, in which he goes through the whole of the Corpus Juris by book and title and considers how far it has been received or disused in the modern law.

Simon van Leeuwen published his Censura Forensis in 1662, and his Roomsch Hollandsch Recht in 1664.[43] The last-named work was an amplification of a slighter treatise called Paratitula Juris Novissimi published in 1652 and again in 1656. The best edition of the Roomsch Hollandsch Recht is that with notes by W. Decker issued in 1780. This last-named edition has been translated with additional notes by Mr. Justice Kotzé.

Ulrik Huber issued the first volume of his Praelectiones Juris Civilis, containing his commentary on the Institutes of Justinian, in the year 1678. This was followed after a considerable interval by his commentary on the Digest in two additional volumes. The best edition is that of J. Le Plat of Louvain issued in 1766. The same author published in 1686 his treatise entitled Heedensdaegse Rechtsgeleertheyt, soo elders, als in Frieslandt gebruikelyk. The last-named work, though principally concerned with the law of Friesland, not of Holland, is a valuable contribution to the study of the Roman-Dutch Law. It was edited after the author’s death by his son Zacharias Huber, who, like his father, was a Judge of the Frisian High Court.

Johannes Voet. Commentarius ad Pandectas. This work was published simultaneously at the Hague and at Leyden in 1698 and 1704 in two volumes folio. It has gone through innumerable editions. The best is the Paris edition of A. Maurice of 1829, which is free from most of the misprints which disfigure the folio editions. The whole of Voet has not been systematically translated into English,[44] but translations varying in merit are procurable of many of the separate titles. In 1793 Van der Linden published, in folio, a Supplement to Voet’s Commentary. It extends only to Book xi of the Pandects. Amongst the lesser works of Voet may be mentioned his Compendium of the Pandects, which, though originally issued before the larger work, serves the purpose of an analysis of it. A little book in Dutch published in the eighteenth century under the name of De beginselen des rechts volgens Justinianus is a translation from the Latin of Voet’s analysis of the Institutes (Elementa Juris), supplemented with a translation of those passages in Vinnius’ Commentary in which reference is made to the modern law.

Eighteenth Century

Writers of the eighteenth century. Cornelis van Bijnkershoek is beyond controversy the most eminent Dutch jurist of the eighteenth century. He was President of the Supreme Court of Holland, Zeeland, and West Friesland from 1724 to 1743. For our present purpose the most useful of his works is the Quaestiones Juris Privati, published in Latin in 1744, and in a Dutch translation in 1747.

Mention has already been made of Schorer’s edition of Grotius (1767) and of Decker’s edition of Van Leeuwen (1780). A Dutch translation of Schorer’s notes on Grotius, which contains also additional matter supplied to the translator by the author, appeared from the hand of J. E. Austen in 1784–6. This is the edition referred to in the margin of Professor Fockema Andreae’s edition of Grotius.

A useful work was published by Van der Linden and other jurists in 1776 under the name of Rechtsgeleerde Observatien, dienende tot opheldering van verscheide duistere, en tot nog toe voor het grootste gedeelte onbewezene passagien uyt de Inleidinge tot de Hollandsche Rechtsgeleertheid van wylen Mr. H. de Groot.

D. G. Van der Keessel, a Professor at Leyden, issued in the year 1800 his Theses Selectae juris Hollandici et Zelandici ad supplendam Hugonis Grotii Introductionem ad Jurisprudentiam Hollandicam. The work was reprinted in 1860. There is a translation by C. A. Lorenz. The Dictata in which the author of the Theses expanded and supported them still circulate in manuscript, but have never been printed. There is a fine MS. copy in the University Library at Leyden corrected in Van der Keessel’s own hand. I am told that the author’s own manuscript is in the Bar Library at Colombo. A typewritten copy of the Leyden MS. was presented to the Supreme Court Library at Capetown by the late Dr. C. H. van Zyl.

Joannes van der Linden is the last of the old text-writers. In 1794 he published his Verhandeling over de judicieele practijcq, which is still consulted. But his best-known work is his Introduction to Roman-Dutch Law, issued in 1806 under the name of Regtsgeleerd, Practicaal, en Koopmans Handboek. The book is very elementary, but has enjoyed great favour amongst students, particularly in Sir H. Juta’s translation entitled Institutes of Holland. Another work by the same author which may be mentioned (besides his Supplement to Voet referred to above) is his Dutch translation of Pothier on Obligations with short notes from his own hand (1804–8).

If the student wishes to supplement the above-mentioned list of books with a handy law dictionary he will find Boey’s Woorden-tolk easily procurable and sometimes useful. Kersteman’s larger work (1768) and the supplementary volumes by Lucas Willem Kramp[45] enjoy a reputation which is scarcely merited. The collection of pleadings by Willem van Alphen known by the quaint name of Papegay (originally published in 1642) is deservedly famous. If Van der Linden’s work on Procedure proves inadequate, reference may be made to Paul Merula’s Manier van Procederen, the last and best edition of which, under the names of Didericus Lulius and Joannes van der Linden, was issued in the years 1781–3.

ii. Statute Law.II. Statute Law. The enactments of the States-General and of the States of Holland and West Friesland are to be found in the ten folio volumes of the Groot Placaat Boek. The statutes of Batavia are printed in Van der Chijs, Nederlandsch-Indisch Plakaat Boek. The pre-British statutes of the Cape exist but have not been printed.

iii. Decisions of the Courts.III. Decisions of the Courts. Many published volumes of Decisions have come down to us and are a valuable source of law. Particular mention may be made of the Sententien en gewezen Zaken van den Hoogen en Provincialen Raad in Holland, Zeeland en West-Friesland, published by Joannes Naeranus at Rotterdam in 1662; of the Utriusque Hollandiae, Zelandiae, Frisiaeque Curiae Decisiones of Cornelius Neostadius, printed at the Hague in 1667; and of the Decisiones Frisicae sive rerum in Suprema Frisiorum Curia judicatarum libri V of Johannes à Sande, himself a Judge of the Court whose decisions he reports. The Latin original of this work is dated 1634. There is also a Dutch translation. These three volumes of Reports are often cited by Voet. Van der Keessel frequently refers to a volume entitled Decisien en Besolutien van den Hove van Holland, published at the Hague in 1751; but this and Van der Linden’s Verzameling van merkwaardige Gewijsden der Gerechtshoven in Holland,[46] published at Leyden in 1803, are rarely obtainable.

iv. Opinions of Jurists.IV. Opinions of Jurists. The numerous volumes of ConsultatienAdvysen, &c., are a very interesting and characteristic feature of the Roman-Dutch system of jurisprudence. It is enough here to refer more particularly to the well-known collection entitled Consultatien, Advysen en Advertissementen gegeven ende geschreven by verscheijden Treffelijke Rechtsgeleerden in Hollant en elders (commonly known as the Hollandsche Consultatien), originally published by Naeranus in 1645,[47] containing the opinions of Grotius and other eminent lawyers. The opinions of Grotius, in particular, have been translated and edited by the late Mr. D. P. de Bruyn (1894). Other collections designed to supplement the above-named work were issued at various dates during the eighteenth century. The latest work of the kind, containing opinions by the eminent jurist J. D. Meijer, was published at Amsterdam in 1842.

v. Custom.V. Custom. This is in every country a source of law. We mention it here more particularly because, as observed above, it is through custom that the Roman Law found its way into Holland, and it is as custom that it continues to exist in the Roman-Dutch Colonies. Without attempting a bibliography of the jus civile we may perhaps be allowed to recommend the student to supply himself with the Mommsen-Krüger edition of the Corpus Juris. For a law lexicon he will consult the older works of Calvin[48] or Vicat[49] or Heumann’s Hand-Lexicon,[50] or the exhaustive Vocabularium jurisprudentiae in course of publication under the auspices of the Savigny Foundation.

Sources of the Modern Law.Such, then, are the sources of the Roman-Dutch Law, or such were its sources while it still flowed in an undivided stream. They remain to-day the sources of law for the several Roman-Dutch Colonies, supplemented by enactments of the local legislatures, decisions of the local tribunals, and local authoritative custom. The treatises and opinions of modern lawyers do not make law, though they often help the inquirer to find out what the law is.

Works on Colonial Law. The principal works on the modern law of South Africa are: The Common Law of South Africa, in 4 vols., by Dr. Manfred Nathan; The Institutes of Cape Law, by Chief Justice Sir A. F. S. Maasdorp; English and Roman-Dutch Law, by Mr. George T. Morice.

For the Law of Ceylon the student may refer to The Laws of Ceylon, by Mr. Justice Pereira (2nd ed., Colombo, 1913); to A Digest of the Civil Law of Ceylon, by Sir P. Arunachalam (vol. i, ‘Persons Natural and Juristic’, London, 1910); and to the earlier work entitled Institutes of the Laws of Ceylon, by Henry Byerley Thomson, a Puisne Judge of the Supreme Court of Ceylon, published in 1846. Sir Charles Marshall’s Judgments, &c., of the Supreme Court of the Island of Ceylon, published at Paris in 1839, furnishes a conspectus of the Law of the Colony as it existed in the first half of the last century.

For British Guiana no text-book exists.

Reception of the English Law in the Roman-Dutch Colonies;The reader who may use this book, or one of the older text-books mentioned in the preceding pages, as an introduction to his study of the modern law in one or other of the Roman-Dutch Colonies must bear in mind that just as the Roman-Dutch law of Holland was a complex system drawn from different sources, so the law of every one of these Colonies, Roman-Dutch in origin, has been affected in almost every department by the encroaching influences of English Law. the result of
(a) express enactment,
This has been the result partly of express enactment, partly of judicial decisions, partly of tacit acceptance.

As examples of statutory introduction of the law of England, mention may be made of the Ceylon Ordinance No. 5 of 1852, which enacts that the law of England is to be observed in maritime matters and in respect of all contracts and questions relating to bills of exchange, promissory notes, and cheques; and of the Ceylon Ordinance No. 22 of 1866, which makes similar provisions with respect to the law of partnerships, joint-stock companies, corporations, banks and banking, principals and agents, carriers by land, life and fire insurance.

In British Guiana by Ordinance No. 6 of 1864, s. 3, ‘all questions relating to the following matters, namely ships, and the property therein, and the owners thereof, and the behaviour of the master and mariners and their respective rights, duties, and liabilities as regards the carriage of passengers and goods by ships; stoppage in transitu; freight; demurrage; insurance; salvage; average; collision between ships; bills of lading; and all rights, liabilities, claims, contracts, and matters arising in respect of any ship, or any such question as aforesaid, shall be adjudged, determined, construed, and enforced according to the Law of England applicable to such or the like case.’ By Ordinance No. 3 of 1909 the law of England for the time being was made the law of the Colony in relation to life and fire insurance.

At the Cape the General Law Amendment Act No. 8 of 1879, introduced the English law: (s. 1) in all questions relating to shipping; and (s. 2) in all questions of fire, life, and marine insurance, stoppage in transitu, and bills of lading. But (s. 3) English statutes passed subsequently to the date of the Act do not apply.

or imitation of English statute law;It would occupy too much space to speak of the numerous Colonial Statutes which follow more or less closely the language of English Acts of Parliament and through this channel admit into their own system the rules and principles of the law of England. As examples may be cited the Ceylon Sale of Goods Ordinance No. 11 of 1896, and the British Guiana Sale of Goods Ordinance No. 26 of 1913. The numerous changes produced by the statutory abolition of institutions of the Roman-Dutch common law will be illustrated in the course of this book.

(b) judicial decisions;We have not space to speak of the modification of the Roman-Dutch common law in the several Colonies by the jurisprudence whether of the Colonial Courts or of the Judicial Committee of the Privy Council. Fuller information on these matters must be sought elsewhere. It is enough to have warned the student that much of the learning of the old books is obsolete or superseded. To the extent of the topics included in this book, the points of contact between the Roman-Dutch and English systems will, it is hoped, be sufficiently indicated in the following pages.

(c) tacit acceptance.Lastly, much of the English law has found its way in by a process of silent and often unnoticed acceptance. It would be easy to accumulate instances in every branch of the law. But the student may better be left to draw his own conclusions from the pages of the law reports and, in course of time, from the practice of his profession.

The present condition of the Roman-Dutch system:In conclusion, a few words will be permitted with regard to the present condition and future prospects of the Roman-Dutch system within the British Empire. In South Africa, in Ceylon, and in British Guiana its fortunes have been widely different. Writing some years ago in the Journal of Comparative Legislation, I said:

in South Africa,‘In South Africa its tradition is continuous, its pre-eminence unchallenged. Bench and Bar have been trained to it. The best legal talent of the country has applied it in judgments or explained it in text-books. in Ceylon,Far other has been its fate in Ceylon. Here it has been mangled by the Legislature, and administered by judges sometimes frankly contemptuous of its principles. And yet it lives! The local Bar is vigilant and active. The Bench has been adorned by at least one profound civilian. There are text-books. There are law reports almost continuous since 1821. in British Guiana.In British Guiana these signs of activity have been absent. There are no text-books. There are no written records of judgments of earlier date than 1856. There are no reports, the series initiated in 1890 having been discontinued after four years’ life.[51] Upon a general view of the state of the Roman-Dutch Law in this Colony it may be said that except in the sphere of property and intestate succession not very much of it remains. What of it the Courts had spared the Legislature has quite lately set itself to destroy.’[52]

The future of the Roman-Dutch system:Since these words were written events have tended to confirm them. The institution of the Union of South Africa and with it of the Appellate Division of the Supreme Court, which hears appeals also from the Supreme Court of Southern Rhodesia, will before long lead to the production of a body of statutory and judge-made law, in which the principles of the Roman-Dutch Law will be expounded and developed. in South Africa,It may be anticipated that under such auspices the Roman-Dutch Law will assume a completeness and a symmetry which it has failed to attain in previous ages. It will be a system in which the best elements of the Roman and the English Law will be welded together in an harmonious and indissoluble union. As the corpus of South African Law grows to maturity the old folios and quartos, which some of us have learnt to handle with a feeling almost of affection, will be less and less consulted. Having served their turn they will yield to the fate of all things mortal. But the spirit of justice which inspires them and the rules of law which they express will live embodied in new forms. The reproach levied against the Roman-Dutch Law by a learned writer lately deceased, that its text-books are antiquated and its weapons rusty, if it is true to-day, will be true no longer.

in British Guiana,In British Guiana the doom of the Roman-Dutch Law has been pronounced. The ‘Common Law Commission’ appointed by the Governor of the Colony has recently reported in favour of its replacement by the Common Law of England, to the exclusion, however, of the English Law of Real Property. Whether this scheme will be carried out in its entirety remains to be seen.

Meanwhile the Commissioners append to their Report the draft of ‘An Ordinance to codify certain portions of the Roman-Dutch Law of the Colony and to substitute the English Common Law and principles of Equity for the Roman-Dutch common law’, and propose that it should come into operation by January 1, 1915.[53] The justification for a change of so uncompromising a character is found in the circumstances of the Colony.

‘While much has gone from the Roman-Dutch domain much remains. Roman-Dutch Law may be seldom quoted in the Courts and even then with little hope of the quotation seriously affecting the issue. English authorities and precedents may tend more and more to have weight with judges and lawyers to its exclusion. But it remains as an element of uncertainty. We have all the disadvantage of a mixed system without the elasticity of the Roman-Dutch jurisprudence.’

‘It increases the work of both judge and counsel. It wastes time and is a source of expense. In this country it is not a living system. We have no resident Dutch population and few even of the Dutch names survive. The colonists have no sentimental affection for any legal legacy of the Batavian Republic of 1803 or the Kingdom of the Netherlands of 1814. Our population is a small one, very mixed in race. East Indians and Portuguese make up some fifty per cent.; and natives of the West Indian Islands form no small proportion of the balance. Mixed as it is, it is overwhelmingly British in its attachments, traditions, and sympathies.’

in Ceylon.In Ceylon, if the Roman-Dutch Law is not so firmly established as it is in South Africa, yet it is not, as in British Guiana, in danger of immediate extinction. It seems more likely that in this Colony it will die slowly of asphyxia, smothered beneath legislation which may, however, continue in a greater or less degree to reflect its principles.

APPENDIX

How far the Statute Law of Holland obtains in the Colonies

In In re Insolvent Estate of Loudon, Discount Bank v. Dawes (1829) 1 Menz. at p. 388, the Court observed: ‘When this Colony was settled by the Dutch the general principles and rules of the law of Holland were introduced here, but by such introduction of the law of Holland it did not follow that special and local regulations should also be introduced; accordingly the provisions of the Placaat of 5th February, 1665, as to the payment of the 40th penny (3 G. P. B. 1005) have never been part of the law of this Colony, because this tax has never been imposed on the inhabitants of this Colony by any law promulgated by the legislative authorities within this Colony. In like manner until a law had been passed here creating a public register the provisions of the Placaat of 1st February 1580 (? 1st April—1 G. P. B. 330), were not in force or observance here.’

In Herbert v. Anderson (1839) 2 Menz. 166, the following Placaats were said to be merely fiscal and revenue laws of Holland, which had never become or been made law in Cape Colony, viz. Placaats, &c., of June 11, 1452 (3 G. P. B. 18), January 22, 1615 (1 G. P. B. 363), April 1, 1580 (Art. 31, 1 G. P. B. 337), March 29, 1677 (3 G. P. B. 672), April 3, 1677 (3 G. P. B. 1037). This decision was quoted with approval by Kotzé C.J. in Eckhardt v. Nolte (1885) 2 S. A. R. 48, who added (at p. 52): ‘From this it follows that the Placaats of [September 26] 1658 (2 G. P. B. 2515) and [February 24] 1696 (4 G. P. B. 465) and others in pari materia, merely renewing the earlier Placaats are likewise of no application at the present day.’ On the other hand, in De Vries v. Alexander (1880) Foord at p. 47, de Villiers C. J., referring to Herbert v. Anderson said: ‘The Court could only have intended to confine their decision to those portions of the Edicts (of 1515 and 1580) which are of a fiscal or of a purely local nature. So far as they had been incorporated in the general law of Holland, and were not inapplicable here, they were equally incorporated in the law of this Colony.’ Applying this principle, the learned Judge held that the 9th Art. of the Placaat of September 26, 1658, formed part of the law of Cape Colony.

In British Guiana the question arose in 1905 as to the validity of a gift by will to a Roman Catholic bishop: (a) for offering masses for the soul of testatrix; (b) for the benefit of Roman Catholic churches. The full Court (Bovell C.J., Lucie Smith, and Hewick JJ.) held that the Acts of: (1) October 28, 1446; (2) July 6, 1515; (3) March 20, 1524; (4) October 16, 1531; (5) May 4, 1655; (6) October 14, 1655; have never been part of the law of these Colonies (De Freitas v. Exor. of Jardim (1905) Brit. Gui. Off. Gaz., vol. xxii, p. 1193). [For Cape law herein see Act No. 11, 1868.] On the other hand, the Placaat of September 26, 1658, has been held to be in force in British Guiana (Liquidator of the Brit. Gui. Ice Co. v. Birch (1909) Brit. Gui. Off. Gaz., vol. xx, p. 3). ‘There was nothing in the original circumstances of this Colony which would show that this part of the Roman-Dutch Law was unnecessary, unsuitable, or inapplicable, or that cases could not reasonably be expected to arise in which the Placaat or any riiles founded thereon would be appropriate. … It is obvious that the mere non-existence of any concrete case to which the law could be applied at the date of the Colony’s foundation would not be a sufficient reason for holding that the Placaat and rules based thereon were not introduced here, as similar reasoning would prove the non-introduction of some of the most elementary laws for the preservation of life and property’ (Bovell C.J., Hewick, and Earnshaw JJ.).

For Ceylon Law see Karonchihamy v. Angohamy (1904) 8. N. L. R. 1, in which Middleton J. and Sampayo A.J. (Moncreiff A.C.J, dissenting) held that the Placaat of July 18, 1674, prohibiting marriage between an adulterer and his adulteress, was not in force in Ceylon, and that it is for those who assert and rely upon the operation of a law enacted since the date of the Dutch occupation of the island in 1656 to show beyond all question that it operates and applies. See also authorities cited in argument in Rabot v. de Silva [1909] A. C. 376, and Pereira, Laws of Ceylon, p. 12.


NOTES

  1.  See Journ. Comp. Leg., N.S., vol. xii (1911), p. 548.
  2.  On codification in Holland, see a note by Dr. W. R. Bisschop in Journ. Comp. Leg., N.S., vol. iii (1901), p. 109.
  3.  Van de Spiegel, Verhandeling over den Oorsprong en de Historie der Vaderlandsche Rechten, pp. 73–4.
  4.  Ibid. p. 110. For some remarks on the part played by the Canon Law in the formation of the mature system of R.-D. L. see Kotzé, S. A. L. J., vol. xxvi, pp. 510 ff.
  5.  Mr. Justice Kotzé says (S. A. L. J., vol. xxvi, p. 492) : ‘There is, no doubt, a good deal of what is true in this speculation of Van de Spiegel that Germanic and Frankish laws and customs formed the basis or component parts of the law under the early Dutch Counts; but there is a lack of historical evidence to show that the Roman Law ever had any influence in the Northern Netherlands during the Frankish régime, or that, in the period from the eleventh to the fifteenth century, it was adopted and relied on by the ordinary tribunals throughout the country. The opposite view to this is the more correct.’ This very learned writer accepts Bynkershoek’s view: Ego vix putem aliquam in Hollandia Juris Romani fuisse auctoritatem ante Carolum Audacem (Observationes Juris Romani, in praefat.). And again (p. 497): ‘Although the Roman Law was known in various ways before the time of Charles the Bold, it is clear that Bynkershoek is correct when he says that it first received authoritative and legislative recognition in 1462 (Instructie voor den Stadthouder ende Luyden van de Kamer van den Rade, Art. 42, 3 G. P. B. 635) from that Prince’ (S. A. L. J., vol. xxvi, p. 497). On the other hand, Mr. Justice Wessels (History of the Roman-Dutch Law) supports the view expressed in the text.
  6.  This was particularly the case when, as usually happened, the towns enjoyed the privilege of making local regulations (keuren). Wessels, p. 210.
  7.  Mr. Justice Kotzé in S. A. L. J., vol. xxvi, pp. 407–8.
  8.  The Great Council (De Groote Raad) was instituted in the year 1446 by Philip the Good, Duke of Burgundy and Count of Holland. It was fixed at Mechlin by Charles the Bold in 1473, and again by Philip the Fair in 1503 (Fruin, Geschiedenis der Staatsinstellingen in Nederland, pp. 136–7). The Provincial Court of Holland (Hof van Holland) also exercised an important influence in the same direction. See Professor Fockema Andreae’s edition of Grotius, Inleidinge tot de Hollandsche Recht-geleerdheid, vol. ii, p. 8. For a short history of these Courts, see Kotzé, S. A. L. J., vol. xxvi, pp. 39 ff.
  9.  Fruin, p. 255. Its place was taken, as regards Holland and Zeeland only, by the Hooge Raad van Holland (en Zeeland), established in the Hague in 1581. Zeeland submitted to its jurisdiction in 1587.
  10.  Kotzé, S. A. L. J., vol. xxvii, p. 29.
  11.  He had previously been President of the Court of Holland from 1509.
  12.  If we adopt Mr. Justice Kotzé’s view (supra, p. 2, n. 3), we shall date it from 1462.
  13. Kotzé, S. A. L. J., vol. xxvi, pp. 503 ff.
  14.  See, on the whole subject, the valuable tract of the late Professor Modderman, De Receptie van het Romeinsche Recht (Groningen, 1874).
  15.  Van der Linden, Rechtsgeleerd, Practicaal, en Koopmans Handboek (translated by Sir Henry Juta, under the name of Institutes of Holland), lib. I, cap. i, sec. 4. See also Gr. 1. 2. 22; Van Leeuwen, 1. 1. 11.
  16.  V. d. K. Th. 6–23.
  17. Inleidinge tot de Hollandsche Rechts geleerdheid, beschreven bij Hugo de Groot, met aanteekeningen van Mr. S. J. Fockema Andreæ, Hoogleeraar te Leiden (tweede uitgave), Arnhem, 1910, vol. ii, p. 9; Kotzé, ubi sup. at p. 508.
  18.  1 G. P. B. 374.
  19.  1 G. P. B. 311. Wessels (p. 218) summarizes its contents.
  20.  2 G. P. B. 1007; Wessels, p. 373: ‘The statute of 1570 regulated the procedure in the lower Courts. The same procedure was followed in the Supreme Court of Holland except in so far as it was modified by the rules of that Court.’
  21.  It remained part of the Law of British Guiana until 1829, when it was superseded by Rules of Criminal Procedure made under the authority of an Order in Council of December 15, 1828.
  22.  1 G. P. B. 330. Wessels (p. 222) summarizes its contents.
  23.  2 G. P. B. 695. See Wessels, Hist. R.-D. L., p. 186. An annotated edition of this Ordinance by Willem van Aller was published at Middelburg in 1664.
  24.  Johannis Voet, Commentarii ad Pandectas, tomus tertius: ejusdem commentarii continens supplementum, auctore Joanne van der Linden. Sectio prima, a libro I usque ad XII Pandectarum, Trajecti ad Rhenum, 1793.
  25.  In his Beredeneerd register op het wetboek Napoleon ingericht voor het Koningrijk Holland (Amsterdam, 1809), and other works.
  26.  See an article by the present writer on ‘The Fate of the Roman-Dutch Law in the British Colonies,’ Journ. Comp. Leg., N.S. vol. vii (1906), p. 356, which, by kind permission, is partly reproduced in the text.
  27.  As to the necessity of promulgation see Gr. 1. 2. 1, and Groenewegen and Schorer, ad loc.; Van Leeuwen, 1. 3. 14; V. d. K. Th. 1.
  28.  See Appendix to this Chapter (infra, p. 24).
  29.  The collected edition of the Statutes of Batavia of 1642 seems to have been promulgated at the Cape in 1715. Burge, Colonial and Foreign Laws (New Edition), vol. i, p. 115. Governor van der Parra’s New Statutes of Batavia of 1766 were never recognized by the States-General and had not strictly the force of law. The law in force in the West Indies was defined by the Ordre van Regeeringe of October 13, 1629 (2 G. P. B. 1235; Burge, vol. i, p. 119), and later by the resolutions of the States-General of October 4, 1774 (Laws of Brit. Gui., ed. 1905, vol. i, p. 1; Burge, vol. i, pp. 121 ff.).
  30.  Burge, vol. i, p. 116.
  31.  Per Kotzé J.P., in Fitzgerald v. Green [1911] E.D.L. at p. 493: ‘There is no rule which makes it incumbent upon us, under the circumstances, to adopt the law of North Holland in preference to that of South Holland, although in a conflict between the law of the different provinces of the Netherlands the Courts in South Africa, we are told, have generally followed that of the province of Holland.’ Dr. Bisschop (Burge, Colonial and Foreign Laws (2nd. ed.), vol. i, p. 91) directs attention to the preponderating influence in the affairs of the Company of the Chambers of Amsterdam and Middelburg, which accounts for the fact that the Company was held to be domiciled within the jurisdiction of the Court of Holland. The same writer has observed elsewhere that the Colonial Courts in most cases got their law, so far as it was not comprised in local statutes and customs, from text-books rather than from the original sources, with the result that ‘the local law of the Netherlands—so far as it was not referred to by writers on the Roman-Dutch Law—would be ignored’. ‘In the Dutch East and West Indies the same method of legal application and interpretation would be followed as in the Low Countries, viz., to apply first the local statutes and customs and subsidiarily the Roman law as explained by the learned jurists at home.’ Law Quarterly Review, vol. xxiv (1908), p. 169.
  32.  Per de Villiers C.J. in Seaville v. Colley (1891) 9 S. C. at p. 44: ‘The conclusion at which I have arrived as to the obligatory nature of the body of laws in force in this Colony at the date of the British occupation in 1806 may be briefly stated. The presumption is that every one of these laws, if not repealed by the local legislature, is still in force. This presumption will not however prevail in regard to any rule of law which is inconsistent with South African usages. The best proof of such usage is furnished by un-overruled judicial decisions. In the absence of such decisions the Court may take judicial notice of any general custom which is not only well-established but reasonable in itself. Any Dutch law which is inconsistent with such well-established and reasonable custom, and has not, although relating to matters of frequent occurrence, been distinctly recognized and acted upon by the Supreme Court may fairly be held to have been abrogated by disuse.’ This principle applies alike to the statute law and to the common law of Holland. See also Parker v. Reed (1904) 21 S. C. 496; McHattie V. Filmer (1894) 1 O. R. 305; Natal Bank v. Kuranda [1907] T. H. 155.
  33.  It has been doubted whether the Dutch ever applied their law to the native races of the low country. But since the British occupation the low-country, Sinhalese have had no distinctive law of their own, and have always been treated as subject to the Roman-Dutch law.
  34.  This Ordinance extends to the Kandyan provinces certain specified branches of the law of the Maritime Provinces, and further enacts that if the Kandyan Law is silent on any matter the law of the Maritime Provinces is to be applied. It says nothing as to the general law applicable to Europeans or low-country Sinhalese residing in the Kandyan provinces. The extension to them of the Roman-Dutch Law in general seems to be the work of judicial decisions (see Williams v. Robertson (1886) 8 S. C. C. 36).
  35.  For the history of the Roman-Dutch Law in British Guiana see Report of the Common Law Commission (Georgetown, Demerara, 1914) and ‘Roman-Dutch Law in British Guiana’ (Journ. Comp. Leg., N.S., vol. xiv (1914), p. 11), by the present writer.
  36.  The capitulation of Colombo to the British is dated February 15 of that year.
  37.  A resolution of the Volksraad of the South African Republic of September 19, 1859, gave statutory authority to the legal treatise of Van der Linden, which, failing the commentaries of Simon van Leeuwen and the Introduction of Hugo de Groot, were to be binding. This quaint enactment was repealed by Tr. Procl. No. 34 of 1901.
  38.  On annexation to the British Crown (May 31, 1902), the Orange Free State became the Orange River Colony.
  39.  ‘By the word Laws in that section the Legislature meant Statutes, and never intended that the section should apply to Judge-made Law.’ Webster v. Ellison [1911] A. D. at p. 99, per Solomon J.
  40.  For a bibliography of Roman-Dutch law books see The Commercial Laws of the World, vol. xv—South Africa—pp. 14 ff.
  41.  In the early editions of Grotius the paragraphs are not numbered. Van Leeuwen cites Grotius by book, chapter, and the initial words of the paragraphs, e.g. Grot., Introd., lib. 1, cap. 5, vers. Alle Mondigen. Voet makes the numeration of Groenewegen’s notes do duty for paragraphs. Thus: Hugo Grotius manuduct. ad Jurisprud. Holl. Libr. I, cap. 5, num. 13 (=Gr. I. 5. 9). The division of the chapters into paragraphs was first employed in an edition of the ‘Inleydinge’ published at Amsterdam by Ian Boom in 1727. I am indebted for this information to Mr. Justice Kotzé.
  42.  Wessels, Hist. R.-D. L., p. 294.
  43.  The title-page of this work and of its precursor, the Paratitula, affords an interesting indication of the uncertainty of seventeenth-century spelling. The first edition of the Paratitula has for its subtitle Een kort begrip van het Rooms-Hollandts-Reght. In the second edition this becomes Een kort begrip van het Rooms-Hollands-Recht. The first edition of the later work is described as Het Rooms-Hollands-Regt. Lastly, in Decker’s edition (1780) we have Roomsch Hollandsch Recht, and this I have followed.
  44. I am told that there is an Italian translation, which I have not seen.
  45.  As to the authorship of the Aanhangsel to Kersteman’s Woordenboek see Journ. Comp. Leg., N.S., vol, xii (1911), p. 549.
  46. The Introduction to this volume contains some valuable observations by the compiler on the authority of decided cases.
  47. 3 Wessels, p. 243.
  48.  Calvinus J., Lexicon juridicum juris Caesarei simul et Canonici, Geneva, 1670.
  49.  B. Philip Vicat, Vocabularium Juris utriusque, Lausanne, 1759.
  50. Heumanns Handlexicon zu den Quellen des römischen Rechts (9th ed.), Jena, 1907.
  51. Since September 1, 1900, all Supreme Court judgments have been published in the Gazette, previously only judgments in Appeal.
  52. Journ. Comp. Leg., N.S., vol. vii (1906), p. 369.
  53. This design has not been realized. See Preface.

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