The rule of law at the Cape of good hope in the eighteenth century

Abstract

According to Rodney Davenport, in the Oxford History of South Africa, 'the rule of law did not exist at the Cape in the Company period'. This statement secms incredible in view of the immense volume of the survivmg legal archives—a volume of the criminal court cases for a single year can easily be over 1000 paees of manuscript—and the large number of placcaaten issucd by the povernment of the Cape of Good Hope in the eightcenth Century.This, it would seem, is evidence of a society in which the Roman-Dutch law of the Republic of the Netherlands, as amcnded first to suit the requirements of an castern trading empire and then of the port and colony of the Cape, was used to settlc disputes and to maintain public order and the rights of property. South Africa was clearly rulcd by a code of law—as indeed is probably every society in the world, in some sense or other—and moreover by one which was based on a system to which more concentrated legal thought had been given, at a higher theoretical level, than any other m the seventcenth and eighteenth centurics. To be sure, there were no junsts of any standing whatsoever at the Cape at the time. Most of the meinbers of the Court of Justicc had. no legal training at all.' Ncverthcless, the codifications and tcxtbooks which they used were among the finest products of the greatest pcriocl of Dutch intcllcctual history. Tt is doubtful if the 'modernity' of the legal system of any other country could be comparcd with that of the Nclherlands in the eightcenth Century. Certainly that of the Netherlands could be comparcd with that of any other country. The batllement which Davcnport's init ial sentencc presents is, to a certam extent eascd by the rest of the paragraph in question, whcrc he imphcitly defines 'the rule of law' as one where the law was imposed 'uniformly' and 'fully impartialfly]', so that the 'sevcrity of the sentcnccs [did nol] depend .; . largely on the lenal status of the offender or the person olTcnded agamstV That the contrary was the case was clearly admitted by the Dutch authonties. When, after the British capture of the Cape in 1795, the Court of Justicc was informed that the barbaric nature of the capital punishment imposed m Company t i mes was hcnccforth to be mitigatcd, so that slaves would mercly be hanged or bcheadcd, they replied as follows: