The Influence of Roman Law on the Practice of Slavery at the Cape of Good Hope (1652-1834)
Hilton, John, Acta Classica
This article investigates the extent to which Roman Law and received ideas about Roman slavery actually did form the basis on which slavery was practised and administered in the Cape of Good Hope between 1652 and 1834. Cape slavery was governed by plakaaten issued in Batavia as well as in Cape Town, but, particularly in capital cases, recourse was had directly to Roman Law and to the Roman-Dutch writers such as Simon van Leeuwen, Joost de Damhouder, Ulrich Huber, Andreas Gail and others. These writers frequently cite actual Roman laws, especially when considering the appropriate punishment. At this stage of our knowledge of how Roman Law was used in these cases, it is not possible to say whether its effect was ameliorative or pejorative, but there is little doubt that it was used both by owners and slaves, prosecution and defence, from the beginning until the end of this period.
'If a more minute and exact history of what slavery really was in South Africa be required, it will perhaps be found best recorded by each of us in our hearts.' Olive Schreiner, Thoughts on South Africa (London 1923) 121.
The broad outlines of how the law was administered at the Cape of Good Hope in the 17th and 18th centuries are by now fairly clear. In 1602 the States-General of the Netherlands granted the Dutch East India Company control of the Cape and all Dutch interests east of the Cape by means of a charter (octrooij), in terms of which legal matters in these territories were to be administered by a Council of Justice. (1) Records of the proceedings of this Council show that it recognised as law the 'The Statutes of Batavia' (also known as 'The Statutes of India' and 'Van Diemen's Code'). These statutes had been compiled by Van Diemen in Batavia in 1640 and Joannes Maetsuijcker in 1642 and were adopted by the Council of Justice at the Cape in 1715 'in addition to the Roman law and modern laws, and without derogating from the plakaten and ordinances issued here at various times.' (2) This quotation briefly recapitulates the major sources of law at the Cape: the plakaaten (Latin placita), or by-laws regulating the behaviour of slaves--not just those issued by the governor at the Cape, but also those issued in the Netherlands and Batavia (3)--, the the written laws (i.e. Roman Law), (4) the ordinances of the Heeren XVII in the Netherlands and those of their commissioners sent to the Cape from time to time, and the common Roman-Dutch Law. (5) Behind all of these the influence of Roman Law can often be seen. For example, the Statutes of Batavia cite the Corpus Iuris Civilis often: Digest 15.1 is cited for its discussion of peculium; Digest 21.1 and Codex 4.58 are mentioned in relation to the Roman Law principle of latent defect in relation to the sale of slaves; Codex 9.14.1 crops up in a discussion of the deaths of slaves resulting from excessive punishment by their owners. Roman Law occurs also in a plakaat issued in Batavia in 1752 which decreed, citing the authority of ancient practice, that slaves should not occupy a sidewalk except when in attendance on their masters, and in 1775 it was enacted--in consonance with the ethics of ancient slavery--that a slave who rescued his master from danger must be emancipated. (6) The present paper investigates the influence of only one of these sources of law--Roman Law and its reception by the Dutch jurists--and confines its attention to a particularly problematic area--slavery. Even this is a vast area to investigate and I shall not be touching on many facets of this problem which have been discussed elsewhere, such as the status of slaves, (7) manumission, the punishment of sodomy between burger and slave, (8) and slave testimony against their owners. (9) Instead, I intend to confine my attention to the relevance of Roman Law in cases involving slaves and aim to demonstrate its importance in a number of trials before the Council of Justice as they are recorded in the Cape Archives. …