The beginnings of a mixed system or, advocates at the Cape during the early nineteenth century, 1828-1850

Abstract

In his study of the judgments of the Supreme Court of the Colony of Good Hope during the late nineteenth century, Reinhard Zimmermann stressed the importance of the role of the Bar. A study of the professional activity of the advocates at the Cape Bar during the early nineteenth century necessitates reconsideration of current assumptions. The Charter of Justice of 1827 required advocates to have been admitted to a United Kingdom Bar or to be doctors of law of Oxford, Cambridge or Dublin.This gave rise to the misconception that from the outset the survival of Roman- Dutch law was under threat, if not from a hostile Bar, at least from one with little knowledge of Roman-Dutch Law. The Charter of Justice also made provision for the admission of persons who had practised as advocates in the former Court of Justiceand from 1803, were required to have graduated in law in Holland. For the first ten years of its existence, only former advocates of the old Court of Justice practisedbefore the Cape Supreme Court, the one exception being the Attorney-General. Perusal of the Menzies' Reports, which cover the years 1828 to 1849, reveals theextent to which advocates relied on Roman-Dutch authority. In every contested civil case old authority is cited, sometimes on an extensive scale. During the fi rst years of the Cape Supreme Court, the advocates played a vital role in affirming the status of Roman-Dutch law as an integral part of the law of the Colony. This continued throughout the nineteenth century. At the Cape during the nineteenth century there was no bellum juridicum between the proponents of Roman-Dutch law and English law. This does not mean that Roman-Dutch law was the only actor on the stage. Ties with Holland had been severed. Roman Dutch-law found application within an English colonial political environment, and the courts operated within a procedural regime of English origin. In the Netherlands, the country of origin of Roman-Dutchlaw, the introduction of a code based on the French Civil Code meant that Roman- Dutch law was no longer a living system. In the circumstances, developments in the field of mercantile law, in particular, were assimilated with reference to English law and through legislation derived from English precedents. Whatever tensions there might have been at times, these various elements were in fact the building blocks of the new mixed system. From the very first years, the advocates, in a pragmatic way, played their part in fashioning a coherent system from these building blocks.