An Introduction to Roman-Dutch Law

An excerpt from the GENERAL INTRODUCTION: THE phrase 'Roman-Dutch Law' was invented by The Simon van Leeuwen, 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 tmder 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 This is the more remarkable since in Holland itself and in the Dutch colonies of the present day, the old law has been replaced by modem codes; so that the statutes and text-books, which are still consulted and followed in the above-mentioned British dominions, in the land of their origin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. 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. 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. Later, the various influences of the Frankish Monarchy and Church and Canon Law 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. For many centuries after the dissolution of the Frankish Empire there was no general legislation. Under the rule 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. 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. Later, under Spanish rule, came an era of constructive legislation; but by that time the victory of the Roman Law was already assured....