Roman-Dutch Law

Copies of the lectures themselves, commonly known as Van der Keessel's Dictata, circulate in ms., and these have been cited in judgments of the South African Courts. A younger contemporary of Van der Keessel was Joannes van der Linden, the author of a popular textbook, Regtsgeleerd, Practicaal en Koopmans Hand boek. These two names conclude the list of the contemporary writers on the old Dutch law.

The Dutch carried to their colonies the law of the home coun try, just as the English took with them their common law, and subject to the same necessary adaptation to local conditions. In practice the law of the province of Holland was followed. Hence the extension to the colonial empire of the Roman-Dutch system of law. This was supplemented by local ordinances of the gov ernors in council, and in the East Indies by laws made by the governor-general in council established at Batavia. These were collected by Van Diemen in 1642 and by Van der Parra in 1766. The supreme direction of the East India company was exercised by the Council of XVII. and of the West India company by the Council of X. The ultimate legislative authority was vested in the States General.

In the British Empire.

When the Dutch colonies passed to the British Crown, the old law was in principle retained, but during the century and more which has since elapsed it has under gone profound modifications due partly to changed social and economic conditions, partly to the incursion of rules and institu tions derived from English law. In commercial matters, in par ticular, English influences have been predominant. This was so even in the South African republics, and after annexation their law was brought into closer harmony with that of the neighbouring colonies.

The South Africa Act i9o9 provided (sec. 135) for the con tinuance of all laws in force in the several colonies at the estab lishment of the Union until repealed by the Union parliament, or by the provincial councils within the sphere assigned to them. But since this Act took effect on May 31, 1910, the Union parliament and the appellate division of the Supreme Court of South Africa (which hears appeals not only from the Union, but also from Southern Rhodesia and the Mandated Territory) have been active in consolidating, amending and explaining the law, and will con tinue to introduce uniformity in place of diversity. Many of the rules of the old law have already been pronounced to be obsolete by disuse.

But, except where the field is occupied by statute or invaded by English law, the law of South Africa (and in a less degree the law of Ceylon) retains the character of a Roman law system. In

many departments of the law the of the Corpus Juris are still cited as authoritative. The approach to them is through the writings of the Dutch jurists, Grotius, van Leeuwen, Voet, van der Keessel, van der Linden and the rest. The influence of English law has been profound, most of all in British Guiana, where its victory has been complete, less in Ceylon, least in South Africa. But at some points the Roman-Dutch law has offered a stubborn resistance. Thus, it is now settled for both South Africa and Ceylon that "consideration" is not necessary to the validity of a contract. South Africa (but not Ceylon) retains almost un changed the old law of community of goods with its consequences in the proprietary relations of the spouses.

Upon a general view it must be said that a system of law, which can draw at the same time upon the treasures of the Roman and of the English law has great elements of strength, particularly in a virile and progressive community. But the need to resort to law-books of by-gone centuries is a serious inconvenience.

BIBLIOGRAPHY.--Hugo de Groot, Inleiding tot de Hollandsche Rechtsgeleerdheid, with notes by Groenewegen and Schorer (1767) ; the same edit. by S. J. Fockema Andreae (3rd ed., revised by L. J. van Apeldoorn, 1926) ; Engl. trans. by Herbert (1845), Maasdorp (3rd ed., 1903), Lee (1926) ; Simon van Leeuwen, Het Roomsch Hollandsch Recht, with commentary by Decker (178o ; Eng. trans. and commen tary by Sir J. G. Kotze, 2nd ed., 1921) ; Johannes Voet, Commentarius ad Pandectas (best ed., 4 vols., Paris, 1827-29) ; D. G. van der Keessel, Theses Selectae Juris Hollandici et Zelandici (1800 ; Eng. trans. by Lorenz, 2nd ed., 1901) ; Joannes van der Linden, Regtsgeleerd, Practi coal, en Koopmans Handboek (18o6), Eng. trans. by Henry (1828), Sir H. Juta (4th ed. 1904), Morice (2nd ed. 1922) ; A. S. Fockema Andreae, Het Oud-Nederlandsch Burgerlijk Recht (Haarlem, i906) and Bijdragen tot de Nederlandsche Rechtsgeschiedenis (1888–Igoo) ; A. S. de Blecourt, Kort Begrip van het Oud-Vaderlandsch Burgerlijk Recht (2nd ed., 1924) ; R. W. Lee, Introduction to Roman-Dutch Law (2nd ed., 1925) ; Sir A. F. S. Maasdorp, The Institutes of Cape Law (4th and 3rd ed., 1922-26) ; Hon. J. W. Wessels, History of the Roman Dutch Law (5908) ; Hon. W. Pereira, The Laws of Ceylon (2nd ed., 1913) ; Hon. Ll. C. Dalton, The Civil Law of British Guiana (George town, 1921). See also the Cape Law Journal and the South African Law Journal. (R. W. L.)