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Roman-Dutch Law

system, dutch, roman, british, holland, civil and south

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ROMAN-DUTCH LAW. The term Roman-Dutch law describes the system of law which existed in the province of Holland (see HOLLAND) from the 15th to the 19th centuries. This system, introduced by the Dutch into their colonies, was re tained in those of them which passed to the British Crown at the end of the i8th and the beginning of the 19th centuries. These were the maritime districts of Ceylon, the Cape of Good Hope, and the settlements upon the coast of South America now corn prised within the colony of British Guiana. In a secondary sense therefore Roman-Dutch law is the original common law of these countries. In Ceylon this system has been extended to the Kan dyan Provinces (annexed in 1815), while in South Africa it was carried forward with the expanding range of white settlement into the Republics and Natal. To-day it is in force in the whole of British Africa south of the Zambesi, as well as in the Mandated Territory, known as the Protectorate of South-West Africa.

In British Guiana on the other hand the Roman-Dutch law hav ing been found unsuited to the existing conditions of the colony has by the local Civil Law of British Guiana Ordinance 1916, taking effect from Jan. 1, 1917, been to a very great extent replaced by the common law of England. When it is said that Roman Dutch law forms the common law of British South Africa and Ceylon, this must be understood with a reservation in favour of native law and custom, so far as these are recognized, and with the qualification that the general law of these countries, as will be seen, has in many respects departed from its original type.

Historical Development.

It does not fall within the scope of this article to investigate the historical sources of the old Dutch law. It is enough to say that in the 15th and 16th cen turies the Roman law was "received" in subsidium in the prov ince of Holland, as it was sooner or later in the Netherlands gen erally, as well as in Germany. General and local customs, based ultimately upon Germanic tribal law (Frankish, Frisian, Saxon), afforced by privileges and by-laws (keuren), and affected, doubt less, by an earlier "infiltration" of Roman law, held their ground. Hence resulted the mixed system for which Simon van Leeuwen in 1652 invented the term "Roman-Dutch law." This remained

in force until superseded in 1809 by the Code Napoleon, which in 1838 gave place to the existing Dutch civil code. The old law was abrogated in the Dutch colonies also, so that to-day the Roman Dutch law is no longer in force outside the British empire. (See ROMAN LAW.) We have spoken of two elements in the Roman-Dutch system, Roman law and Germanic custom. To these must be added a third, viz., legislative acts of the Burgundian and Spanish periods. Such were the Great Privilege of Mary of Burgundy of 1476; the Placaat of the emperor Charles V. of 1529, requiring immovable property to be transferred before the local court ; the Perpetual Edict of the same monarch of 1540, relating to clandestine mar riages and other matters; the Maritime Laws of Charles V. of 1551 and of Philip II. of 1563; the Codes of Criminal and Civil Procedure of Philip II. of 157o and 158o; the Political Ordinance of the States of Holland of 1580; the Placaat on Intestate Suc cession of 1599. There was much legislation in the 17th and i8th centuries, but it had little effect upon the general character of the legal system. Apart from legislation we derive our knowledge of the Roman-Dutch law from collections of decided cases, from col lections of opinions, commonly termed consultatien or advijsen, and from a rich juristic literature.

Systematization.

The first attempt to reduce the Roman Dutch civil law to system was made by Hugo de Groot (Grotius ) in his Introduction to the Jurisprudence of Holland (Inleiding tot de Hollandsche Rechts-geleertheyd), written while he was a prisoner in Loevestein in 1619-2o, published in 1631. This short treatise, a masterpiece of condensed exposition, remains to this day a legal classic. But after Grotius honor must be assigned to Johannes Voet (1647-1713), professor at Utrecht and Leyden, whose Commentarius ad Pandectas (1698-1704) more than any work of the old law is in use to-day. In the i8th century the most famous name is Cornelis van Bijnkershoek, for 20 years president of the Supreme Court (1673-1743). Towards the end of the century Dionysius Godefridus Van der Keessel, professor at Leyden, lectured on the jus hodiernum, of which he published a summary in Theses selectae juris Hollandici et Zelandici (i800).

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