A tale of two translations: Van Leeuwen and Van der Linden and the application of Roman-Dutch law at the Cape in the 1820s; to which is appended a transcription of pb borcherds' 1822 translation of book II of Van der Linden's Koopmans Handboek

 

 

JP van Niekerk; Gardiol van Niekerk

Professors, School of Law, University of South Africa

 

 

---

ABSTRACT

The Roman-Dutch law applicable at the Cape of Good Hope survived the British take-over of the settlement at the beginning of the nineteenth century for a number of reasons. One of these was the increasing availability, through translations into English, of the main sources of that legal system. This contribution spotlights two hitherto little known such translations, of works of Van Leeuwen and Van der Linden. One of these was by a local Cape lawyer, PB Borcherds. Although partly typeset and printed, the translation was, for apparently spurious reasons, never published; had it been, it may well have been the earliest legal work published at the Cape. The translation, existing only as archival material, is here transcribed and published for the first time, almost two hundred years after it should have appeared.

Keywords: Roman-Dutch law; law at the Cape in the 1820s; role of translations; Van Leeuwen and Van der Linden

---

 

 

1 Introduction

Several factors played a role in what has been termed the "remarkable survival" of Roman-Dutch law at the Cape of Good Hope in the nineteenth century. It survived despite the fact that when the territory became a British settlement in 1806, that legal system was finally cut off from its roots in the Netherlands and came to be subjected to a subtle but persistent process of anglicisation. In addition to the fact that a significant number of lawyers qualified in (Roman-) Dutch law continued to practice in Cape courts,¹ a steady stream of translations into English of the most important sources of Roman-Dutch law in the course of the nineteenth century sought to make that system accessible to the increasing number of local lawyers who had an English background.²

A particular problem faced the administration ofjustice in territories taken over by Britain where a legal system or systems other than English common law applied. The existing system was, in accordance with trite British constitutional principles, and at least for the time being, left unchanged; only a gradual and partial assimilation with English common law was usually envisaged and provided for. This meant that for the time being British judicial officers and civil servants had to apply a foreign legal system, with its sources invariably in a language other than English, to a population which, in many cases, included a growing number of English-speaking immigrants. The legal system with which we are concerned here is Roman-Dutch law, which was the main system³ applicable in the British colonies of Guiana, Ceylon and the Cape of Good Hope. Apart from a policy of gradual anglicisation - not only of the law, but also of its language,⁴ procedures and customs - another solution to this problem was to make the main sources of the applicable legal system accessible by means of translations.⁵ Given the larger aim of anglicisation, such translations were, at best, an intermediary measure and hence never generally and officially sanctioned. They appeared piecemeal and over a considerable period of time. There was no formal scheme for the official translation into English of foreign, including Roman-Dutch, legal sources to facilitate the colonial administration of justice in the relevant territories.

However, some translations did appear to have, if not official sanctioning or authorisation, then at least official backing and blessing. In this piece we are concerned with two such translations, involving two works of two well-known Roman-Dutch jurists, Simon van Leeuwen's Het Rooms Hollands Recht and Johannes van der Linden's Rechtsgeleerd, Practicaal, en Koopmans Handboek⁶Although the translations in question are not completely unknown,⁷ they are sufficiently obscure to justify their brief discussion here, the more so given that both seemingly featured prominently in the administration of justice at the Cape in the 1820s and that their provenance is of fascinating legal-historical interest. By the mid-1800s, the various translations of the two works in question were still significant for being of the very few works available in English on the general principles of Roman-Dutch law.⁸

 

2 Van Leeuwen's Het Rooms Hollands Recht and its Ceylonese translation

Simon van Leeuwen (1626-1682), with a doctorate from Leiden and a practising advocate, was the author and translator of several legal works,⁹ a number of which attained high authority in former Dutch territories before and in the course of the nineteenth century.

One of his early works, Paratitula juris novissimi, dat is: Een kort begrip van het Rooms Hollands Regt, published in Leiden in 1652, was the first to employ the term "Roman-Dutch law" in its subtitle. It, in turn, formed the basis of a more comprehensive work,¹⁰ entitled Het Rooms Hollands Recht, which appeared in Leiden and Rotterdam in 1664. This, his best-known work, went through several subsequent editions¹¹ and was eventually, in 1780-1783 in its 12th edition, updated in two volumes with notes by Corneli(u)s Willem Decker.

The first translation into English of Van Leeuwen's Het Rooms Hollands Recht appeared in London in 1820, published by Joseph Butterworth and Son. Entitled Commentaries on the Roman-Dutch Law, it was a translation of the 11th edition of 1744 and was stated on the title page to have been translated from Dutch "by a native Cingalese, under the direction of Sir A Johnstone", and to have been edited by TH Horne.¹²

The anonymous translator, or rather translators, it has been stated, were "the translators of the Supreme Court of Ceylon" at the time.¹³ The translation was made under the instruction of Sir Alexander Johnstone (1775-1849), a distinguished and influential colonial official, orientalist and judge in Ceylon until 1819,¹⁴ when he returned to England for reasons of health. In 1832 he was made a privy councillor and in 1833 appointed to the Judicial Committee of the Privy Council, the establishment of which body as the court of final appeal in colonial litigation he had supported.

A reformer of judicial administration and supporter of the rights of indigenous inhabitants, Johnstone had in 1807 collected and reported on various local and customary laws in use in Ceylon so as to enable the new British officialdom better to understand and administer justice. In 1809 he had submitted several suggestions for the reform of the judicial administration on the island. Under his guidance, considerable advances were also made in the preparation of a compilation of the applicable law for Ceylon in which provision was made for the preservation of the indigenous laws and customs of local Hindus, Muslims and Buddhists.¹⁵

Significantly, the 1820 translation of Van Leeuwen's Het Rooms Hollands Recht also contained, by way of appendices, translations, made by Johnstone's "official translators",¹⁶ of various indigenous laws.¹⁷

The editor of the 1820 English translation of Het Rooms Hollands Recht was Thomas Hartwell Horne (1780-1862), a biblical scholar and bibliographer.¹⁸ Horne started off as a barrister's clerk and later, from 1806 to 1809, became the private clerk to the publisher Joseph Butterworth, all the while cultivating his interest and honing his skills in the editing of books and the compilation of catalogues on various subjects, including theology and law.¹⁹ His appointment as editor of the Van Leeuwen translation in all probability stemmed from his acquaintance with its publisher.

In the preface to the 1820 translation of Van Leeuwen's Het Rooms Hollands Recht, the work is referred to as "the book to which the Dutch Courts of Justice on Ceylon most generally referred, as containing the System of Law which they were bound to administer to the Inhabitants on that Island". As the judges of the Supreme Court established by Britain on the island were directed to administer to those inhabitants the same system of laws as administered by Dutch courts previously, Sir Alexander Johnstone, while chief justice, "caused the present Volume to be translated into English, for the use of the Court, by such translators as he could procure on the Island". And because the work was also the basis of civil and criminal law in all those colonies that formerly belonged to Holland but which now formed part of the British Empire, the preface continued, "the following Translation has been printed by command of His Majesty's Secretary of State for the Department of War and the Colonies". It added that no pains had been spared to render the translation as accurate and perspicuous as possible, "so that the Work may form a useful Manual to professional Gentlemen on Ceylon, the Cape of Good Hope, and other Dutch Colonies now under the English Government, where the Dutch Laws are still in force". And lastly, but not without significance,²⁰ it was observed that as the system or "plan" of Van Leeuwen's work in a considerable degree resembled that of Blackstone's Commentaries on the Laws of England, it had been deemed proper to substitute the title Commentaries on the Roman-Dutch Law in lieu of the original title of the work.

 

3 Van Leeuwen's Het Rooms Hollands Recht and its significance at the Cape

No doubt in part because of the 1820 translation into English, Van Leeuwen's Het Rooms Hollands Recht had, and continued to enjoy, an elevated status as a source of the applicable Roman-Dutch law at the Cape after the British take-over. But was it ever at the Cape more than just one of the sources of that system?

In their Report on the Case of Mr Bishop Burnett,²¹ dated 7 December 1825, in describing the law applicable at the Cape,²² the commissioners then comprising the Commission of Eastern Inquiry - John Thomas Bigge and William MG Colebrooke - observed that the laws of Holland and Flanders were founded on Roman law and that these systems in combination had received the appellation of Roman-Dutch law. This legal system, they then tantalisingly continued, formed "the subject of a treatise composed by a learned civilian of Holland [that is, by Van Leeuwen] that has been translated into the English language, and under the auspices of your Lordship [Henry, third Earl of Bathurst, Secretary of State for the Colonies, 1812-1827], has been introduced as authority into the tribunals of those colonies that have been added to the British dominions, and in which the Dutch laws have been retained".

Taken at face value, this seems to imply that the English translation of Van Leeuwen's Het Rooms Hollands Recht, and in all probability then the 1820 Ceylonese one, had in some way or another been granted some kind of official status as a source of Roman-Dutch law in former Dutch colonies taken over by Britain, including, therefore, at the Cape. However, while true that the Ceylonese translation had been published in London on the instructions of the Secretary of State, we could trace no official record of such status. Otherwise than was subsequently the case in the Orange Free State or the Zuid-Afrikaansche Republiek,²³ neither Van Leeuwen nor his Het Rooms Hollands Recht was ever formally elevated to any official canon of authoritative sources of the law at the Cape. Equally, even though it was one of the so-called "books of authority" relied on by Ceylonese courts in their application of Roman-Dutch law,²⁴ it seems not to have enjoyed that status even in Ceylon itself, whence the translation originated.

A possible explanation for the commissioners' statement, advanced by Fine,²⁵is that the British government sought to narrow the definition of "Roman-Dutch law" when the Secretary of State for the Colonies "introduced" a translation of Van Leeuwen's Het Rooms Holland Recht as "authority in former Dutch colonies", including at the Cape. Again, though, while that may indeed have been the motivation behind the official support or, at most, sanctioning of the translation, there is no evidence of how and when exactly the translation was "introduced" as "authority".

It seems, therefore, that the commissioners' statement should not be taken literally as suggesting that the unofficial ministerial imprematur given to the Ceylonese translation of Van Leeuwen's Het Rooms Hollands Recht elevated that work to the position of an authorised and, in some way, privileged source of Roman-Dutch law at the Cape. The translation was merely encouraged or supported to facilitate in the administration of Roman-Dutch law in those British colonies where, for the time being, it still applied.

But, of course, Van Leewen's work remained a favoured source of Roman-Dutch law at the Cape and a further English translation, by Sir John G Kotzé,²⁶ this time of the 12th edition with Decker's notes, appeared in two volumes in London in 1882 and 1886 as Roman-Dutch Law; a second edition followed in 1921 and 1923.

 

4 Van der Linden's Koopmans Handboek and its Guianese translation

Johannes van der Linden (1756-1835), also with a doctorate from Leiden and a practising advocate in The Hague and later in Amsterdam, where he held several legal offices and was appointed to the bench in 1827, was a prolific author and prodigious translator of multiple legal and historical works;²⁷ he was also a renowned bibliophile.²⁸ Although actively involved in the codification movement in the Netherlands after 1795 as the drafter of several preliminary codes, he also wrote the last recognised work on the general principles of the Roman-Dutch common law, generally known as the Koopmans Handboek. It appeared in Amsterdam in 1806, the very year the Cape was returned to British possession.

With the full title Rechtsgeleerd, Practicaal, en Koopmans Handboek ten dienste van Regters, praktizijns, kooplieden, en allen, die een algemeen overzicht van regtskennis verlangen, it was, according to the author's preface, intended as an exposition of the general principles of the then current law of and legal practice in Holland for the instruction of persons unacquainted with or untrained in the law ("die, des Regts onkundig zijnde" and "hun, die, zonder gestudeerd te hebben, regtszaaken behandelen moeten"). The need for such a work was because Grotius's Inleidinge was too advanced for that group ("voor onkundigen veel te duister") while Van Leeuwen's Het Rooms Hollands Recht was by that time out of date.²⁹

The work consisted of four books, namely on civil law, criminal law, legal procedure, and commercial law. Although its elementary and practical approach meant that it was not always recognised academically and in the Netherlands as a serious work on and an important source of the Dutch common law,³⁰ that very feature made it an ideal text for non-lawyers and students seeking to come to grips with the basic principles of Roman-Dutch law. And, in fact, it became much more than that in the former Dutch colonies where British lawyers were active, mainly because it was relatively quickly translated into English.

The first English translation of the Koopmans Handboek appeared in Demerara, Guiana, in 1814. It is a rather obscure publication, seldom mentioned in legal bibliographies. In the preface to a later translation, that by Henry,³¹ the 1814 translation was stated to have been published "at Demerara by Mr van Braam, since deceased". Another source on publications in British Guiana,³² published in 1918, makes reference to "a most important book" printed by EJ [Edward James] Henery at the Royal Gazette Office there in 1814, a thick octavo of 418 pages, plus an appendix and index, entitled Judicial, Practical & Mercantile Guide for the use of Judges, Lawyers, Merchants and all those who desire to have a general knowledge of Laws. Translated from the Dutch of Joannes van der Linden, LLD, Councillor at law at Amsterdam. With an appendix of some Law Terms, etc.

The work in question, the source continues, was of such importance that a translation was proposed in 1812 and a government notice issued offering a premium of 3000 guilders for a correct translation into English. The translator, it surmised, appears to have been one LP van Braam, although his name did not appear in the work. A good copy of the work, this source concludes, is housed in the library of the American Antiquarian Society in Worcester, MA.³³

Likewise little certain is known of the probable translator, Van Braam, but scattered - and at times conflicting and confusing - pieces of information do emerge. He appears to have been Livius Paulus van Braam, born in Delft, apparently in 1791.³⁴One bit of supporting evidence relevant for present purposes is an advertisement that appeared in 1807 - when, if the date of his birth is correct, he was a mere sixteen years old - in the Essequebo and Demerary [Royal] Gazette that LP van Braam could be consulted as a "sworn translator in English, French, Dutch".³⁵ That also means that he translated Van der Linden's work at the tender age of twenty-three. Van Braam died in Demerara in 1817 at the age of twenty-eight.³⁶

 

5 The Henry translation of Van der Linden's Koopmans Handboek

The 1814 Guianese translation of the Koopmans Handboek, it would appear, was a rather imperfect product; after all, if the translation was done by Van Braam, it was the work of a very young person, without any legal background and whose first language was not English.³⁷

Although preparations were made for another translation, that only appeared many years later in 1828 in London. Entitled, rather incorrectly,³⁸Institutes of the Laws of Holland by Johannes van der Linden, LLD... Amsterdam, printed in the year 1806it was the work of Jabez Henry. According to the title page, the translation was done by the order of the Earl of Bathurst, Secretary of State for the Colonies, while Henry was described as being of Middle Temple, a barrister at law, and senior commissioner of legal enquiry into the administration of justice in the West Indian and South American colonies.

Jabez Henry (1775-1835) was a colonial judge and an early author in English on the conflict of laws.³⁹ How and under what circumstances - and, crucially, as it will appear, when - he came to translate Van der Linden require a little closer inspection of his career.

Having qualified with a BA at Cambridge in 1806, he was admitted to Middle Temple and called to the bar in 1809. From 1813 to 1816 he served as (the first English) president of the Court of the united colonies of Demerara and Essequibo, and of Berbice, recently acquired from the Dutch. In that capacity he administered both - Roman-Dutch - civil and criminal law. His appointment, like later ones, he owed to the influence of Earl Bathurst. After having resumed legal practice in England for a short period, he was in 1817 transferred to the Adriatic to become, in 1818, chief justice at Corfu and the first supreme judge of the Ionian Islands, where he encountered the Venetian legal system.⁴⁰

In 1819 Henry again returned to London to practise - he was described in the Law List as an "Equity Draftsman and Conveyancer for the Dutch Colonies" - and, apart from a spell away as a member of a commission of enquiry into the administration of justice in the West Indian and South American colonies from 1824 to 1825,⁴¹ he proceeded to specialise in two niche areas, no doubt informed by his earlier judicial appointments and aided by his proficiency in Dutch, Italian and French.

The first was the increasingly important subject of private international law, in particular cross-border insolvency, a field in which he had some judicial as well as academic experience.⁴² Prior to the writings of Joseph Story, English courts relied to a large extent on the discussions of continental authors, especially those of the Dutch school and more specifically those of Huber, on issues of private international law. The most extensive work in English on the subject was by Jabez Henry, whose Foreign Law appeared in 1823.⁴³

His other specialisation was foreign appeals to the Privy Council,⁴⁴ in which Henry built up a large practice, often appearing in the company of illustrious English lawyers. For instance, in 1829 to 1830, in the Council decisions reported in volume 1 of Knapp s Reports,⁴⁵ Henry appeared in several matters, on appeal from Roman-Dutch jurisdictions,⁴⁶ including one from the Cape of Good Hope.⁴⁷ The Council on numerous occasions referred to Henry's translation of Van der Linden in those and similar appeals and in one decision, on appeal from Demerara,⁴⁸ it referred⁴⁹ to "a very excellent book" on the law of Holland, "for a translation of which (Henry's translation of Vanderlinden's Institutes ...) the public are very much indebted to a Gentleman at this bar".

How and when did Henry come to translate Van der Linden? At least one earlier work gave an indication of his inclination to do so. In 1821⁵⁰ he wrote a Report on the Criminal Law of Demerara and the Ceded Dutch Colonies: Drawn up by Desire of the ... Earl Bathurst... with an Appendix on the Nature of the Office of Fiscal. Published in London by Henry Butterworth, in this slim 112-page volume

Henry severely criticised the archaic and defective nature of the criminal process in the former Dutch colony of Demerara. One reason for this state of affairs was that the criminal law and procedure ordinances of Philip II of 1570 and 1580 were still applicable there.⁵¹ Significantly, this work contains a translation into English of what is termed a "Code of Criminal Law", being the Criminal Ordinance of Philip II of 1570, followed by a commentary entitled a "Review of the Code".⁵²

Sometime after his return to London from the West Indies,⁵³ and while busy or just having completed writing his Foreign Law, Henry was encouraged to undertake an English translation of Van der Linden's Koopmans Handboek by Sir William Grant. Grant had felt the need for a book of reference on Dutch law as it prevailed in the former Dutch colonies while presiding as Master of the Rolls in the hearing of colonial appeals in the Privy Council.⁵⁴ The project was further supported and authorised by Earl Bathurst. Given his competence in several European languages, including Dutch, his earlier translation of (Roman-) Dutch legal materials,⁵⁵ and his familiarity with the practical application of Roman-Dutch law in a British colony, Henry was no doubt one of the men in London best qualified for the task. Delayed by Henry's involvement with the West Indian commission of enquiry, he appears to have embarked on the translation sometime after 1824. In preparation, he travelled to Europe to collect material for the book, acquiring copies of works by respected continental jurists. In the process Henry visited Holland, "almost certainly" in connection with the translation and had a meeting with Van der Linden for this purpose.⁵⁶

The translation eventually appeared in 1828, entitled Institutes of the Laws of Holland. It was dedicated to Earl Bathurst, who had encouraged the work with his patronage and support while Secretary of State.

In the preface, Henry referred to the earlier, 1814 (Van Braam) translation, a work then (in 1828) for some years out of print: "scarcely a copy (as I am informed) can be procured, either here [in England] or in the colonies". That alone, Henry judged, was enough reason for a new translation, but also because then the "want of technical precision" and the "inaccuracies of language" in the earlier one could be corrected. Another reason was that the Ceylon translation of Van Leeuwen's Het Rooms Hollands Recht, likewise evidently by a person but little acquainted with either English law or language, was also out of date and "no longer a safe book of reference, however valuable at the time" as it had never been updated. As Van der Linden's work, published in 1806, brought the ancient law of Holland, which still prevailed in the colonies ceded by the Dutch, up to that date, it was the ideal one for translation.

Henry recommended Van der Linden's work "to those who wish to acquire a competent knowledge of the civil law, to qualify them to hold judicial appointments in our foreign Colonies". The translation was specifically aimed at the expanding number of English lawyers, civil servants and colonial administrators increasingly being sent out to serve in former Dutch possessions where Roman-Dutch law still obtained. No doubt with this audience in mind, the translation contained numerous observations by Henry on the differences between the common and civil (Roman-Dutch) legal systems, as well as a lengthy chapter on the "Formation of a Select Law Library", which was an invaluable survey of legal source material for those who wished to acquire further knowledge.⁵⁷

Henry's translation of Van der Linden's Koopmans Handboek became one of the most widely used source of Roman-Dutch law in British colonies for most of the remainder of the nineteenth century. Only in 1884 did a new English translation appear, in Cape Town by Henry Juta,⁵⁸ under the title Institutes of Holland, or Manual of Law, Practice and Mercantile Law.⁵⁹Unsurprisingly, Juta reckoned that a new translation was due as Henry's earlier attempt, then in any case rapidly going out of print, was "not entirely free from inaccuracies" and as difficulties of copyright had prevented the correction and republication of that translation. And even if not the last one,⁶⁰ Juta's translation of Van der Linden's Koopmans Handboek is even today the one best known.

But, were it not for a not completely explicable quirk of history, yet another, earlier local translation too may have had some claim to notoriety.

 

6 The Borcherds translation of book II of Van der Linden's Koopmans Handboek

Petrus Borchardus Borcherds (1786-1871)⁶¹ was the son of the well-known dominee Meent Borcherds of Stellenbosch. He was taught first by his father and then by Dr Dolling, chaplain of admiral Sir Hugh Cloberry Christian, commander-in-chief of the Cape naval station. In 1800, at the age of fifteen, he was appointed as temporary clerk to the office of the district secretary of Stellenbosch, the notary Johannes Wege. From October 1801 to January 1802 he accompanied Dr PJ Truter,⁶² on his travels into the interior to conclude trade deals with indigenous tribes. In March 1803 Borcherds moved to Cape Town. There, through the intercession of the then president of the Court of Justice during the Batavian interlude, Dr Lambert CH Strubberg, who had studied with his father at Groningen, he was appointed as clerk to the Court, first under acting secretary (and later fiscal) Dr Daniël Denyssen, and then under his successor, Dr Gerrit Buyskes. He stayed on in this post after the return of the British government in 1806. At the end of 1809, he was appointed secretary of Stellenbosch and in March 1813 he was promoted to the post of deputy fiscal under his former boss, fiscal Denyssen. Borcherds remained in that post for almost ten years.

In 1823, after having occasionally taken a seat, Borcherds was appointed as a member of the Court of Justice.⁶³ At the time the Court was comprised of some highly qualified lawyers and even the non-lawyers, such as Borcherds himself, had considerable practical legal experience.⁶⁴ He had acquired his legal knowledge by copying court records in long hand and after hours while keeping the protocol of Gerrit Buyskes, then an advocate and notary public. His legal bible was Van der Linden's Koopmans Handboek, to which he had been introduced by Strubberg.⁶⁵

In 1828, after the Court of Justice had been replaced by the newly constituted Supreme Court, which was manned by imported British judges, Borcherds was redeployed and appointed to the office of Judge of Police, for Cape Town and its district, and for the Cape District.⁶⁶ He later became a civil commissioner and magistrate until his retirement in February 1857 at the age of seventy-one.

As a prominent civil servant and well-connected⁶⁷ Cape Angloman, Borcherds was from early on active on government business. Notably, in the early 1820s, he collected materials for the Commissioners of Eastern Inquiry.⁶⁸ In addition, Borcherds was active as an author and editor,⁶⁹ and is best known today for his autobiography entitled An Autobiographical Memoir, which appeared in Cape Town in 1861.⁷⁰

It is therefore unsurprising that when, in the early 1820s, the question of the accessibility of Roman-Dutch legal sources at the Cape and the possibility of translation was raised, Borcherds should have become involved. Under the guidance and with the assistance - or maybe just the encouragement - of the president of the Court of Justice, Sir John Truter,⁷¹ Borcherds set out to translate a portion of Van der Linden's Koopmans Handboek, more specifically the part - book II - on criminal law. This portion was no doubt chosen because that was the area of law where the need for a translation to assist local legal administrators and others unfamiliar with the applicable Roman-Dutch law, was most keenly felt.⁷² Referring to his translation as being of Van der Linden's Code of Criminal Law,⁷³the work was already for the most part typeset by the Government Press in Cape Town⁷⁴ on the instruction of governor Somerset - to whom it was also dedicated - when, in 1822, its intended publication was cancelled.

The reason, Borcherds explained in his Memoirs many years later, was that an edition had arrived at the Cape "of a translation of the whole of the author's work by mr Henry, so that mine was not necessary".⁷⁵ So, the completed translation, partly printed, was never published.

But this cannot be right. Henry's translation of the (whole of the) Koopmans Handboek only appeared some years later, in 1828. What had arrived at the Cape, around 1822, it may be surmised, was either a copy of Van Braam's 1814 translation of Van der Linden, or, more likely, a copy of Henry's English translation of the Criminal Ordinance of Philip II that had appeared in 1821;⁷⁶ or maybe not even an actual copy of the latter work, but simply news of its publication. In all probability, Borcherds' memory simply failed him all those years later when, in his old age,⁷⁷ he recalled in his Memoirs why his translation had never seen the light. Whatever the explanation, it appears that the publication of Borcherds' translation may have been cancelled for insufficient a reason. Had it appeared, it may well have been the first legal text published at the Cape of Good Hope.

 

 

A portrait of Borcherds, in his old age, appearing as the frontispiece to his Memoirs

Although never published, Borcherds' translation, partly typeset in print and partly still in the form of the hand-written manuscript, did feature in the transformation of the law at the Cape. In their Report on Criminal Law and Jurisprudence, dated 18 August 1827,⁷⁸ the then Commissioners of Eastern Inquiry - John Thomas Bigge, William MG Colebrooke, and William Blair - referred⁷⁹ to a "meritorious attempt [that] was recently made to furnish an explanation of the leading principles of the Dutch Criminal Law, and to introduce them to the knowledge of the English part of the Community, by the translation of a treatise on the Criminal Law [sic] published in Holland in 1806 by an eminent Dutch Jurist [Van der Linden]". They continued that it was "to be regretted that circumstances should have retarded the completion of a work which was peculiarly calculated to supply information to the magistrates and the secretaries of the country Districts, both of whom act as Public prosecutors".

Their Report contains several references to the views of Van Leeuwen and Van der Linden on aspects of criminal law.⁸⁰ Quite possibly the commissioners made use of Borcherds' translation, for among the enclosures to their Report is contained, as enclosure 31, the "Translation into English of Code of Criminal Law, as comprised in the Second Book of a Work on the Laws of Holland by Johannes van der Linden, LLD, by PB Borcherds. Printed at the Government Press, Cape of Good Hope, in 1822".⁸¹ Although not reproduced with the Report by Theal at the end of the nineteenth century, the translation is still extant in the National Archives in London as part of the holdings containing the Commission's Report.⁸²

Borcherds' translation, in the form of a transcription of both the typeset part and the hand-written manuscript part, appears, just shy of almost two centuries after it should have been published, as an appendix to this article. We have resisted the temptation to edit the translation and to cast it in a modern idiom and format, and have intervened (by way of squared brackets) only where it appeared necessary for the sake of clarity, to avoid misunderstanding, and to eliminate patent errors and omissions. In short, we have largely left Borcherds' translation as it would - should - have appeared in 1822.

 

7 Conclusion

The "remarkable survival" of Roman-Dutch law in Southern Africa in the nineteenth century was due to the presence of qualified lawyers practising at the Cape, and to the translation into English of the main sources of that legal system. Locally such translation⁸³ commenced with the work of Borcherds in 1822, and continued apace throughout that century and for the whole of the next. Roman-Dutch sources, or at least the most prominent of them, became and remain available in modern translations, often with commentaries and notes.

Sadly, though, that alone will not suffice to prevent the steady decline of the influence of Roman-Dutch law in South Africa. There are historical precedents aplenty for such a decline, most pertinently in the two jurisdictions that featured earlier, Ceylon⁸⁴and Guiana.⁸⁵ And the reason, or at least one of the main reasons, for it, is probably no different here: the dearth of local lawyers qualified in and passionate about that system. Woefully inadequate legal training, strong sentiments of anti-colonialism, and the fact that large swathes of the common law are continuously being supplanted by legislative enactment will, it may be surmised, probably sooner rather than later, result in the "unremarkable demise" of Roman-Dutch law in its last stronghold.

 

BIBLIOGRAPHY

Anon (1929) "Mr GT Morice" SALJ 46: 137-139        [ Links ]

Borcherds, PB (1861) An Autobiographical Memoir (Cape Town)        [ Links ]

CJG (1935) "The Privy Council" SALJ 52: 277-285        [ Links ]

Cooray, LJM (1974) "The reception of Roman-Dutch law in Sri Lanka" Comparative and International Law J of Southern Africa 7: 295-320        [ Links ]

Cowen, DV (1959) "The history of the Faculty of Law in the University of Cape Town, 18591959" Acta Juridica: 1-19        [ Links ]

Cundall, Frank (1909) Bibliography of the West Indies (excluding Jamaica) (Kingston, Jamaica)        [ Links ]

Davis, RPB (1915) "The honourable Sir Henry Juta" SALJ 32: 1-10        [ Links ]

Davis, Natalie Zemon (2011) "Judges, masters, diviners: Slaves' experience of criminal justice in colonial Suriname" Law & History Review 29: 925-984        [ Links ]

Dekkers, René (1951) Bibliotheca Belgica Juridica. Een bio-bibliographisch overzicht der rechtsgeleerdheid in de Nederlanden van de vroegste tijden af tot 1800 (Brussels)        [ Links ]

Dictionary of South African Biography [DSAB] 5 vols (1968-1987) (Pretoria)        [ Links ]

Egerton HE (1925) "The seventeenth and eighteenth century Privy Council and its relations with the colonies" J of Comparative Legislation & International Law 3rd Series 7: 1-16        [ Links ]

Erasmus, HJ (2015) "The beginnings of a mixed system, or, advocates at the Cape during the early nineteenth century, 1828-1850" Fundamina. A J of Legal History 21(2): 219-233        [ Links ]

Eybers, GW (1918) Select Constitutional Documents Illustrating South African History 17951910 (London)        [ Links ]

Farlam, Ian (2007) "The old authorities in South African practice" Tijdschrift voor Rechtsgeschiedenis 75: 399-408        [ Links ]

Farley, Rawle (1955) "The economic circumstances of the British annexation of British Guiana (1795-1815)" Revista de Historia de America 39: 21-59        [ Links ]

Fine, Hilton Basil (1991) The Administration of Criminal Justice at the Cape of Good Hope 17951828, 2 vols (DPhil thesis, University of Cape Town)        [ Links ]

Fischer, DR (2006) "Grant, Sir William", in Oxford Dictionary of National Biography (2006 online edition, accessed 2 Feb 2018)        [ Links ]

Fletcher, Ian F (2005) Insolvency in Private International Law 2nd ed, available online at https://www.insol.org (accessed Nov 2017)        [ Links ]

Freund, William F (1989) "The Cape under the transitional governments, 1795-1814" in Richard Elphick & Hermann Giliomee (eds) The Shaping of South African Society, 1652-1840 (Cape Town and London): 324-357        [ Links ]

Glenn, Jane Matthews (2008) "Mixed jurisdictions in the Commonwealth Caribbean: Mixing, unmixing, remixing" J of Comparative Law 3: 53-76        [ Links ]

Graham, David (2001) "Discovering Jabez Henry - Cross-border insolvency law in the 19th century" International Insolvency Review 10: 153-166        [ Links ]

Graham, David (2005) "In search of Jabez Henry - Part II: The readership of Foreign Law" International Insolvency Review 14: 223-234        [ Links ]

Graham, David (2006) "Henry, Jabez" in Dictionary of National Biography (2006 online ed, accessed 10 Nov 2017)        [ Links ]

Hawke, Joanna (2006) "Horne, Thomas Hartwell", in Dictionary of National Biography (2006 online ed, accessed 21 Nov 2017)        [ Links ]

Hewett, Margaret (2000) "Old wine in new bottles, or: The story of translations of the 'old authorities' produced by South Africans" Pro Memorie. Bijdragen tot de Rechtsgeschiedenis der Nederlanden 2(1): 92-108        [ Links ]

Hodgins, Thomas (1895) "The Judicial Committee of the Privy Council and colonial judges" Canadian L Times 15: 133-142        [ Links ]

Howell, PA (1979) The Judicial Committee of the Privy Council, 1833-1876, Its Origins, Structure, and Development (Cambridge)        [ Links ]

Kahn, Ellison (1985) "Solution to a mystery about the earliest South African law reports" SALJ 102: 187-190        [ Links ]

Keene, HG, revised by Roger T Stearn (2006) "Johnstone, Sir Alexander", in Oxford Dictionary of National Biography (2006 online ed, accessed 21 Nov 2017)        [ Links ]

Ledlie, JC (1917) "Roman-Dutch law in British Guiana and a West Indian Court of Appeal" J of the Society of Comparative Legislation NS 17: 210-222        [ Links ]

Lee, RW (1914) "Roman-Dutch law in British Guiana" J of the Society of Comparative Legislation NS 14: 11-23        [ Links ]

Lee, RW (1915) An Introduction to Roman-Dutch Law (Oxford)        [ Links ]

Le Quesne, CT (1952) Book review (of Joseph Henry Smith Appeals to the Privy Council from the American Plantations) Modern LR 15: 382-386        [ Links ]

Lloyd, ACG (1914) "The birth of printing in South Africa" The Library: A Quarterly Review of Bibliography and Library Lore 5: 31-43        [ Links ]

Lorenzen, Ernest G (1934) "Story's Commentaries on the Conflict of Laws - One hundred years after" Harvard LR 48: 15-38        [ Links ]

Murray, RW (1894) South African Reminiscences ... (Cape Town)        [ Links ]

Nadaraja, T (1972) The Legal System of Ceylon in Its Historical Setting (Leiden)        [ Links ]

Nadelmann, Kurt H (1961a) "An International Bankruptcy Code: New thoughts on an old idea" International and Commercial LQ 10: 70-82        [ Links ]

Nadelmann, Kurt H (1961b) "Joseph Story's contribution to American conflicts law: A comment" American J of Legal History 5: 230-253        [ Links ]

Oliver, VL (ed) (1914) Caribbeana, being Miscellaneous Papers Relating to the History, Genealogy, Topography, and Antiquities of the British West Indies vol 3 (London)        [ Links ]

Renton, A Wood (1890) "Work of the West Indian commissioners III" Juridical Review 2: 357-365        [ Links ]

Renton, A Wood (1932) "The Roman-Dutch law in Ceylon under the British regime" SALJ 49:161-182        [ Links ]

Roberts, AA (1942) A South African Legal Bibliography (Pretoria)        [ Links ]

Rodway, James (1918) "The Press in British Guiana" Proceedings of the American Antiquarian Society 28(2): 274-290        [ Links ]

Roos, J de V (1897) "The Plakkaat Books of the Cape" Cape LJ 14: 1-23        [ Links ]

Roos, J de V (1906) "The statute law of the Cape in pre-British days, and some judicial decisions in relation thereto" SALJ 23: 242-254        [ Links ]

Ross, Robert (1999) Status and Respectability in the Cape Colony 1750-1870. A Tragedy of Manners (Cambridge)        [ Links ]

Sampson, Victor (1887) "Sources of Cape law" Cape LJ 4: 109-119        [ Links ]

Smith, Anna H (1971) "South Africa" in Colin Clair (ed) The Spread of Printing: Eastern Hemisphere (Amsterdam) 1-171        [ Links ]

Stander, GB (2000) Die Geskiedenis van Matie-Krieket 1865-2000 (MA, University of Stellenbosch)        [ Links ]

Swinfen, David B (1987) Imperial Appeal. The Debate of the Appeal to the Privy Council, 18331986 (Manchester)        [ Links ]

Stephen, Leslie, revised by Patrick Polden (2006) "Stephen, Henry John", in Oxford Dictionary of National Biography (2006 online ed, accessed 7 Feb 2018)        [ Links ]

Taitz, Jèrold Leonard, Ina Ackerman, & Owen Barrow (eds) (1997) Juta Privy Council Reports (Cape Town)        [ Links ]

Tambiah, HW (1972) Principles of Ceylon Law (Colombo)        [ Links ]

Theal, George McCall (ed) (1897-1905) Records of the Cape Colony [RCC] 36 vols (Cape Town)        [ Links ]

Van Boven, MW "Linden, Joannes van der" in Biografisch Woordenboek van Nederland 17801830, available at http://resources.huygens.knaw.nl (accessed 8 Nov 2017)        [ Links ]

Van den Bergh, Rena (2012) "The remarkable survival of Roman-Dutch law in nineteenth-century South Africa" Fundamina. A J of Legal History 18(1): 71-91        [ Links ]

Van der Burg, Martijn (2011) "De integratie van Kaap de Goede Hoop in het Britse rijk, ca 17951825" Pro Memorie. Bijdragen tot de Rechtsgeschiedenis der Nederlanden 13(2): 190-205        [ Links ]

Van der Burg, Martijn (2015) "The age of revolutions at the Cape of Good Hope, 1780-1830: Contradictions and connections" J of Colonialism and Colonial History 16 (accessed from the Project MUSE database, 14 Aug 2018)        [ Links ]

Van der Horst, Marleen HJ (1985) The Roman Dutch Law in Sri Lanka (Amsterdam)        [ Links ]

Van der Merwe, PJ (1986) "Verwikkelinge gedurende die twintigerjare van die 19de eeu wat die Suid-Afrikaanse regswese beïnvloed het" Kronos 11: 37-66        [ Links ]

Van Niekerk, Gardiol (2015) "Multilingualism in South African courts: The legislative regulation of language in the Cape during the nineteenth century" Fundamina. A J of Legal History 21(2): 372-392        [ Links ]

Van Zyl, DH (1983) Geskiedenis van die Romeins-Hollandse Reg (Durban)        [ Links ]

Veen, Theo (2001) "Rechtsgeleerde boeken uit Zuid-Afrika" Pro Memorie. Bijdragen tot de Rechtsgeschiedenis der Nederlanden 3(2): 329        [ Links ]

Visagie, GG (1954) Regsveranderinge aan die Kaap tussen 1823 en 1838 (MA thesis, University of Cape Town)        [ Links ]

Waddams, SM (2006) "Lushington, Stephen" in Oxford Dictionary of National Biography (2006 online ed, accessed 6 Feb 2018)        [ Links ]

Welsh, RS (1950) "The Privy Council Appeals Act, 1950" SALJ 67: 227-230        [ Links ]

W[essels], JW (1907) "Notes on the history and development of the Roman-Dutch law (continued)" SALJ 24: 13-21        [ Links ]

Wildenboer, Liezl (2015) "The Thirty-Three Articles and the application of law in the Zuid-Afrikaansche Republiek" Fundamina. A J of Legal History 21(2): 457-476        [ Links ]

Wilkinson, David (2006) "Adam, William" in Oxford Dictionary of National Biography (2006 online ed, accessed 6 Feb 2018)        [ Links ]

Case law

Balston v Bird (1828) 1 Knapp 121, 12 ER 266

Craig v Shand (1830) 1 Knapp 253, 12 ER 315

FranklandvM'Gusty andPearce (1830) 1 Knapp 274, 12 ER 324

Freyhaus v Cramer and Cantzlaar (1829) 1 Knapp 107, 12 ER 261

Nieuwerkerk v Reynolds (1829) 1 Knapp 151, 12 ER 278

Odwin v Forbes (1817) 1 Buck 57 (PC)

President and Members of the Orphan Board v Van Reenen (1829) 1 Knapp 83, 12 ER 252 Simpson v Forrester and Bach (1829) 1 Knapp 231, 12 ER 306

 

 

1 See, generally, Erasmus 2015.
2 See, in particular, Van den Bergh 2012: 86-87.
3 Other, often indigenous, legal systems also applied, but were not always formally recognised by incoming British administrations.
4 See, in particular, Van Niekerk 2015. On the process of anglicisation at the Cape at the beginning of the nineteenth century, see generally Freund 1989; Van der Burg 2011; and Van der Burg 2015.
5 For statutory sources, a related method was the compilation and publication (and often also the translation) of the various pieces of legislation promulgated not only in the Netherlands, in Batavia and in London, but also locally by Dutch and British colonial authorities. On the statutory sources of Cape law, see, eg, Sampson 1887; Roos 1897; and Roos 1906. The need for such a compilation of applicable laws was mooted during the Batavian interlude 1803-1806 but came to nought: see Visagie 1954: 42; and Van der Merwe 1986: 51 n 77. In 1819 a committee was appointed to compile and cast into a digested form the various pieces of legislation issued under previous administrations, but again without consequence: see Theal RCC vol 33: 1 at 3-4. In 1825, governor Somerset was requested to compile a collection of Cape statutory law, indicating which promulgations were still in force: see Theal RCC vol 20: 12-15. This resulted in the publication in 1826 of Proclamations, Advertisements and Other Official Notices Published by the Government of the Cape of Good Hope, from Jan 10, 1806 to May, 21, 1825, compiled by Sir Richard Plaskett and T Miller and containing the relevant pieces both in English and in (not always correctly translated) Dutch: see further Visagie 1954: 42-43; and Van der Merwe 1986: 51-52. A further Book of Statutes was compiled and published in 1862 by a commission (comprised of Sir William Hodges CJ; Bell, Cloete and Watermeyer JJ; attorney-general Porter; and colonial secretary Rawson), appointed by governor Sir George Grey in 1858. It contained unrepealed promulgations from 1652 and was annually updated thereafter under the title Statutes of the Cape of Good Hope.
6 As will become apparent, there were several translations of the two works in question, but the focus here is specifically on two of those translations as they had a significant Cape connection.
7 They are referred to in passing by Roberts 1942: 184 and 191 n, and by Farlam 2007: 400.
8 See Kahn 1985: 188-189, referring to the announcement by a Cape publisher (AS Robertson) in 1854 in which were mentioned the few legal works in English being available at the Cape, Ceylon, Guiana and in other countries where Roman-Dutch law prevailed.
9 See further Roberts 1942: 183-186; Dekkers 1951: 98-100; Van Zyl 1983: 354-358. 10 See Nadaraja 1972: 39 n 167.
11 For example, the 5th ed appeared in 1678; the 6th ed in 1686; the 7th ed in 1698; the 8th ed in 1708; the 9th ed in 1720; the 10th ed in 1732; and the 11th ed in 1744 - all in Amsterdam.
12 We inspected a copy in the British Library which has on its spine the title Leeuwen Commentaries on the R-D Law. Roberts 1942: 184 has its title as Roman Dutch Law, translated anonymously from the 1744 edition by such translators as could be procured in Ceylon and notes the presence of copies in the libraries of the Supreme Court of Appeal in Bloemfontein and of the Cape High Court. Nadaraja 1972: 52 n 234 has it that on Johnstone's retirement from Ceylon, he presented his papers to the library of the Colonial Office (they are now in the National Archives (NA) at Kew, in CO 54/123-125), in which is contained (in CO 54/124 p 8a) a translation of the 1744 ed of Van Leeuwen's Het Rooms Hollands Recht, "made under the orders of Sir Alexander Johnstone by the translators of the Supreme Court". A revised version of this translation, with appendices, was the one published in London in 1820 by command of the Secretary of State.
13 See Nadaraja 1972: xxxvi.
14 Having studied law at Göttingen, Hanover, and at Lincoln's Inn, Johnstone was called to the bar in 1800, appointed to the post of advocate-general of Ceylon, and became acting chief justice in 1806, judge of the Supreme Court in 1807, and third chief justice of the island in 1811.
15 On Johnstone's career, see further Keene 2006; and Nadaraja 1972: 15, 53 n 237, 183.
16 Nadaraja 1972: 52 n 234. One translator, the reverend Christian David of Jaffna, had translated several valuable Tamil works and had served in the Supreme Court as interpreter in important trials: idem 207 n 108.
17 The appendices (at 731-788) were, according to the preface, added to render the volume more useful as a manual of the actual law of Ceylon. They contained English translations of existing collections of laws and customs of two groups of native inhabitants, namely (1) a description of the established customs, usages and institutions according to which civil cases were decided among Malabar or Tamil inhabitants of (the province of Jaffna on) the island, aka the Thasavalema or Tësavalamai, originally collected under Dutch rule in 1706; and (2) the special laws concerning the Muslims (the "Moors or Mohammedans") in force on the island and collected by Johnstone in 1806. See further Nadaraja 1972: 46 n 207, 49 n 224, 183, 193 n 30.
18 See further Hawke 2006.
19 Among his numerous contributions were the following legal titles: compiler of A Compendium of the Statute Laws and Regulations of the Court of Admiralty, relative to Ships of War, Privateers, etc (1803); editor of the 2nd ed of Richard Lee Treatise on Captures in War (1803); editor of the 20th ed of Richard Burn Justice of the Peace (1805); editor of John Clark Bibliotheca Legum (1810); and editor of Thomas Pott Compendious Law Dictionary (1815).
20 See n 38 infra.
21 For background to this matter, see further Van der Merwe 1986: 37-42.
22 Theal RCC vol 24: 72-107 at 103.
23 The Orange Free State Constitution of 10 Apr 1854 prescribed that the law would be Roman-Dutch law, including the works of Van Leeuwen and Van der Linden: see Van Zyl 1983: 468; and Eybers 1918: 285-296 at 295. Addendum no 1 to the Constitution of the Zuid-Afrikaansche Republiek of 19 Sep 1859 clarified the reference to the applicability of Dutch laws by explaining that the Koopmans Handboek of Van der Linden (in so far as it was as not in conflict with the Constitution or local statutes) would continue to be the official law-book and that when it did not treat a matter with sufficient clarity, or not at all, Van Leeuwen's Het Rooms Hollands Recht or Grotius's Inleidinge would enjoy binding authority: see Van Zyl 1983: 473; Eybers 1918: 362-409 and 416-417; and in particular Wildenboer 2015: 467, referring to "a constitutionally entrenched hierarchy of sources of law".
24 See Nadaraja 1972: 16, 280 n 243 who observes that Van Leeuwen's Het Rooms Hollands Recht, Van der Linden's Koopmans Handboek, and Voet's Commentaries ad Pandectas "were the books most commonly used by the Supreme Court" in the early years of British rule; copies of the Van Leeuwen translation were supplied to all the provincial courts on the island and it became the work most commonly used by provincial judges.
25 Fine 1991 vol 2: 469-470, 596.
26 As to whose judicial career on various benches in South Africa, see Roberts 1942: 367-368.
27 See further Roberts 1942: 190-192 (who has it at 190 that Van der Linden was said to have been consulted in governmental matters by the authorities at the Cape after the British occupation); Dekkers 1951: 101; W[essels] 1907: 19-21; and Van Boven.
28 His collection of books was so extensive that he had to lease a warehouse in Amsterdam to store it.
29 As Lee 1915: v observed, both Grotius's and Van Leewen's treatment of Roman-Dutch law "inevitably leaves the reader in a state of bewilderment as to the nature and content of the Roman-Dutch Law administered at the present day by the Courts of South Africa, Ceylon and British Guiana". That was no doubt also true a century before.
30 See, eg, W[essels] 1907: 19-21, referring to the Koopmans Handboek as a "short sketch of the Roman-Dutch law", intended as textbook for students and for the uninitiated, and therefore very slight and not to be compared to, eg, Grotius's Inleidinge. In fact, he continued, a mastery of Van der Linden was insufficient to acquire a fair knowledge of Roman-Dutch law as his work was never intended to be more than "a first book to the student, or a legal vade mecum for the merchant" and "a mere preface to the study of the law of Holland".
31 About which more in due course: see par 5 infra.
32 Rodway 1918: 287. Cundall 1909: 73 lists "Judicial, Practical and Mercantile Guide of British Guiana. By Van der Linden. 1814", without identifying the translator.
33 We could not find any entry for the work in the online catalogue of the Society's library at https:// catalog.mwa.org, available on its website at http:www.americanantiquarian.org.
34 He is said in some sources to have been the son of vice-admiral Aegidius van Braam (1758-1822), who resided in England from 1795 to 1814, which might explain his son's proficiency in English: see "Van Braam, Jhr Aegidius" in http://stamboomonline.nl (accessed 2 Feb 2018) where it is mentioned that the admiral had three sons - Leonard, Marius and George - who had followed in their father's Naval footsteps and who were in Indonesia at the time of his death, while another son, Livius, also in the Navy, was (or rather, had been, if he predeceased his father) in Suriname in the West Indies. Conflicting evidence appears from "Surinaamse Genealogie", sv "Jonkheer Livius Paulus van Braam", available at http://www.network54.com (accessed 23 Nov 2017); there he is stated to have been born in 1791.
35 Other entries, which may or may not refer to our man, include: 15 Mar 1806 Essequebo and Demerary Gazette (mention of a "Van Braam, Esq, formerly Captain in the Dutch Navy" being appointed a grave digger to the colony, the editor not being able to resist observing that "[f] rom the number of applicants which we understand there was for this situation, it would seem that 'the loaves and fishers' [?] are no less an object of desire here than in Europe"); 27 Dec 1806 Essequebo and Demerary Gazette (mention of a Van Braam in Demerara offering a reward for the return of his boat that had become adrift from its chain or was stolen some three days before); a local proclamation (see Plakaatboek Guyana 1670-1816, available at http://resources. huygens.knaw.nl (accessed 4 Nov 2017)) dated 14 Dec 1811 concerning shipping movements, signed by LP van Braam as acting harbour master; and 24 Jan 1815 Demerary and Essequebo Royal Gazette, which, under the heading "General Colonial Order", mentions promotions and appointments in the Demerara Militia, including, "to lieutenant of LP van Braam, Gent, vice HB Fraser". The Gazettes are available at https:www.vc.id.au (and were accessed on 28 Nov 2017).
36 See Oliver 1914: 82-96 (Extract of the Obituaries of the Orphan Chamber of Demerara) where the following entry appears (at 86): "Van Braam, LP, d 3 Sep 1817".
37 This was the view taken in the preface to Henry's subsequent translation.
38 See W[essels] 1907: 20, observing that the work's correct title in English is not Institutes of the Laws of Holland, but rather Practical Legal Manual. The Blackstone influence, perhaps?: see n 20 supra.
39 On Henry, see Nadelmann 1961a; Graham 2001; Graham 2005; Fletcher 2005 in pars 1.21-1.22; Graham 2006; and the Obituary "Jabez Henry, Esq" in Mar 1836 Gentleman's Magazine 324.
40 On one of his voyages to Corfu, the bibliophile Henry lost in a shipwreck his entire library of legal works, including those he had collected in Europe, a loss he much lamented. However, by the time of his death, his law and miscellaneous library had again grown substantially and a portion of it was sold at Sotheby's in London in 1834. On the significance to a bibliophile of a loss, whether by shipwreck or otherwise, of a personal library, see Edward Wilson-Lee The Catalogue of Shipwrecked Books, Young Columbus and the Quest for a Universal Library (2018) at 236.
41 He was appointed, in Mar 1824, as the senior commissioner to conduct an official enquiry into the administration of justice there. Several detailed reports by him or his fellow commissioners to the British parliament were the result. Of importance was Henry's Report in Apr 1828 on the united colonies of Demerara and Essequibo and the adjacent colony of Berbice, in which there is a sketch of the Roman-Dutch legal system that applied there. For further details, see Renton 1890, especially at 358-359.
42 His interest in the field was probably the result of an important decision (and the only reported one) that Henry had delivered in May 1814 as judge in the West Indies in Odwin v Forbes. At issue was Anglo-Dutch cross-border insolvency practice and Henry's decision was to the effect that under Roman-Dutch law a local creditor was not at liberty in the colony of Demerara to sue a debtor who had duly obtained a discharge from his debts in English bankruptcy proceedings in respect of a debt provable in those proceedings. A version of Henry's judgment (nothing more than a summary) was later published by John W Buck in his Cases in Bankruptcy vol 1 at 57-65, together with a report of the appeal dismissed without reasons by the Privy Council in May 1817. The two decisions are often referred to as Odwin v Forbes (1817) 1 Buck 57 (PC).
43 This work of Henry, published in London, was a pioneering and influential 295-page treatise on the conflict of laws, generally known by its short title Foreign Law; the full title was A Treatise on the Difference between Personal and Real Statutes, and Its Effect on Foreign Judgments and Contracts, Marriages and Wills. With an Appendix on the Present Law of France respecting Foreigners. Aimed at lawyers trained in the common law and treating the civil law relating to private international law for the first time in English, the work also contained, in its second half (at pp 86-189), an extended 90-page version of his 1814 Demerara judgment, with the relevant pleadings, in Odwin v Forbes, entitled [Report on] The Judgment of the Court of Demerara, in the Case of Odwin v Forbes, on the Plea of the English Certificate of Bankruptcy, in Bar, in a Foreign Jurisdiction, to the Suit of a Foreign Creditor, as Confirmed in Appeal, with the authorities, and foreign and English Cases. There is available a 2010 reprint of this work and its second half has also been published separately. For further background, see Lorenzen 1934: 19; and Nadelmann 1961b.
44 Prior to the establishment in 1833 of the Judicial Committee of the Privy Council (by the Judicial Committee Act, 1833 (3 & 4 Will IV c 41), aka Lord Brougham's Act), colonial appeals were heard by a standing committee of the King's (Privy) Council (the King-in-Council), formally known as the Appeals Committee of his Majesty's Most Honourable Privy Council (or the Appeals Committee for short). It is before this body that Henry appeared in 1829-1830. The Committee comprised of all lords who were members of the Council and who attended its hearings under the chairmanship of the Master of the Rolls. They were usually not judicially qualified. The hearings took place in the Cockpit, near the site of 10 Downing St, where the Committee heard arguments in public and whence they then tendered a report or advisory "opinion" (as the judgments were known) to the King-in-Council. Its decisions were not regularly reported until Knapp began his reports in 1829. On the hearing of colonial appeals prior to (the establishment of the Judicial Committee of the Privy Council in) 1833, see further Hodgins 1895; Egerton 1925; CJG 1935; Welsh 1950; Swinfen 1987: 1-8; Howell 1979: 1-22; and the "Introduction" to Taitz, Ackermann & Barrow 1997: 1-6.
45 The reports of barrister Dr Jerome William Knapp, who held a DCL, were the first to be published of the decisions of the Privy Council: see Le Quesne 1952. They appeared as Reports of Cases argued and determined before the Lords of the Privy Council in three volumes (1829-1831, Aug 1831-Jun 1834, and 1834-1836) that are now available in 12 ER 222-377, 378-545, and 546-709 respectively. Knapp was also the co-author of Cases of Controverted Elections, &c (see (1833) 10 Law Magazine, or Quarterly Review of Jurisprudence 146) and there is a caricature of him to be seen at https://antiqueprintmaproom.com (accessed 5 Feb 2018).
46 See Freyhaus v Cramer and Cantzlaar ([Jul] 1829) 1 Knapp 107, 12 ER 261, on appeal from Demerara, Henry appearing with Stephen Lushington (1782-1873), who held a DCL from Oxford and was a well-known civilian lawyer with a large practice in the High Court of Admiralty (he was later a judge there 1838-1867), in ecclesiastical courts, and also in the Privy Council (see further Waddams 2006); Nieuwerkerk v Reynolds (1829) 1 Knapp 151, 12 ER 278, on appeal from Berbice, Henry appearing with William Adam KC (1751-1839), a Scottish advocate with an LLD from Cambridge (see further Wilkinson 2006); Craig v Shand ([Feb] 1830) 1 Knapp 253, 12 ER 315, on appeal from Demerara, Henry appearing with Dr Lushington; and Frankland v M'Gusty andPearce ([Feb-Jul] 1830) 1 Knapp 274, 12 ER 324, on appeal and cross appeal from Demerara, Henry appearing with Henry John Stephen (1787-1864), the son of lawyer and abolitionist James Stephen, who became serjeant-at-law in 1828 (see Stephen 2006).
47 See President and Members of the Orphan Board v Van Reenen ([Jul] 1829) 1 Knapp 83, 12 ER 252, (and see also Taitz, Ackermann & Barrow 1997: 635) where Henry appeared before the King-in-Council with Brougham KC for the respondents, but where their reliance on a long passage from his Van der Linden translation was held not to be in point. Another Cape appeal from this time, Balston v Bird ([May-Jun] 1828) 1 Knapp 121, 12 ER 266, concerned the East India trade and the limits of the East India Co charter; Roman-Dutch law did not feature and neither did Henry.
48 Simpson v Forrester and Bach ([Dec] 1829) 1 Knapp 231, 12 ER 306; Henry appeared as amicus curiae: see at 243, 311.
49 Idem 241-242, 310.
50 Earlier, in 1817, he wrote An Essay on the Roman Law of Manumission of Slaves, and Its Application to the Colonies.
51 See further Lee 1914: 13; Davis 2011: 977.
52 There are also appendices, including one on the office of the advocate-fiscal or procureur-general. In a footnote in the Van der Linden translation, Henry recounted that he had in 1816 translated, "by the desire of Bathurst", the Criminal Code in force in Demerara, which translation was later appended to his Report on the criminal law of the colony.
53 The information in this paragraph appears from Henry's preface (dated Mar 1828) to the translation.
54 Sir William Grant (1752-1832), who had earlier for two years studied Roman-Dutch law at Leiden and had served as attorney-general of Quebec before commencing practising before the equity courts, was Master of the Rolls and, in that capacity, president of the Privy Council's Appeals Committee from 1801 to 1817 (see again n 44 supra). He retired in 1817, but for a few years after sat on the Committee and assisted in hearing colonial appeals. He was the only one of the English judges on the Privy Council prior to 1833 who had studied Roman-Dutch law and had an extensive knowledge and practical experience of civil law in other parts of the Empire; a DCL was conferred on him by Oxford in 1820. See further Fischer 2006.
55 He was also familiar with the ten-volume collection of decrees and ordinances of Holland, published from 1658 to 1797 - this is probably a reference to the Groot Placcaet-Boeck - of which the later volumes were under the editorship of Van der Linden.
56 See Graham 2001: 157, 160. Henry states in the preface that he went to Holland "for the express purpose of consulting the learned author himself on several points ... of importance, and in order to assure myself of the general accuracy of the Translation".
57 Henry could not resist pointing out that most of them, in the choicest editions, were once in his possession, "at the cost of nearly a fortune", before they were lost by shipwreck on a passage to Corfu with almost everything else he owned: see n 40 supra.
58 Henricus Hubertus (Sir Henry Hubert) Juta (1857-1930) was at the time practising at the Cape bar. He later went on to become attorney-general of the Cape in 1894, speaker of the Cape House of Assembly from 1896 to 1898, judge president of the Cape Provincial Division from 1914, and judge of appeal from 1920: see further Roberts 1942: 366; and Davis 1915 who points out at 7 that Juta's translation of Van der Linden had "almost completely supplanted that of Henry". See also W[essels] 1907: 21, considering Juta's translation the "more correct one".
59 Further editions appeared in 1891, 1897 and 1906, and an abridged student edition entitled Van der Linden's Manual, commonly known as The Institutes in 1920.
60 In 1914, yet another translation, of books I and II, and selections from books III and IV, by the Scotsman George Thomas Morice (1858-1930), at the time practising and teaching law in South Africa, appeared under the title Institutes of the Laws of Holland; a second edition followed in 1922. On Morice, see Roberts 1942: 392; and Anon 1929, who has it that this translation, accompanied as it was with notes, appeared because of Morice's involvement with law students.
61 On Borcherds, see the entry under his name in the Nieuw Nederlandsch Biografisch Woordenboek part 4 (1918), available at http://www.dbnl.org (accessed 15 Nov 2017). His autobiography (see text at n 70 infra) is also a rich source of information. We could not obtain copies of the following: C Borcherds Genealogy of the Borcherds Family (1964), and C Borcherds A Borcherds Tapestry: Addendum to Borcherds Memoirs by PB Borcherds (196?).
62 On Petrus Johannes Truter (1775-1867), medical doctor, civil servant and later, in 1819, member of the Court of Justice, see further DSAB vol IV: 663-664.
63 Borcherds was appointed in the place of Clemens Matthiessen, who had retired on pension; in his place, WC van Ryneveld was appointed deputy fiscal: see 22 Feb 1823 Cape Town Gazette.
64 At the time of Borcherds' appointment, the Court consisted of Dr Johannes Andreas (Sir John Andrew) Truster as president, Dr William Hiddingh, Dr Walter Bentinck, Dr Johannes Henoch Neethling, Frans Rynard Bresler, Johannes Christiaan Fleck, Petrus Stephanus Buissinne, and Petrus Johannes Truter jnr. Dr Daniël Frederick Berrangé was the Court's secretary, and both the fiscal (Denyssen) and the deputy fiscal, Johannes Lind, were also doctors of law.
65 See Borcherds 1861: 287, 482; Cowen 1959: 7.
66 See 17 Jan 1828 Cape Town Gazette.
67 He had married Janette Johanna Blankenberg in 1806.
68 See Ross 1999: 48 n 36.
69 It was probably Borcherds himself, and not his father Meent, who edited Jan van Riebeeck's Dagverhaal, which was serialised in Het Nederduitsch Zuid-Afrikaansch Tijdschrift from1824 to 1840; Borcherds also published several historical articles in that periodical: see Ross 1999: 48-49.
70 It was reprinted in 1963. The Memoir has the distinction of containing an early reference in Dutch to "colf" and "kolf" at 194, where there is a description of the "kolfbaan" in Stellenbosch as about 100 feet long and 30 feet across and covered and shaded by leaves and branches; see the KNKB [Koninklijke Nederlandsche Kolfbond] Webmuseum, available at http://www.colf-kolf. nl (accessed 15 Nov 2017) and also Stander 2000: 21, referring to the Memoir and Borcherds' recounting that at the turn of the century school children went to the Braak where they played "kite" and ball games.
71 For the involvement of Sir John, see Borcherds 1861: 308 (referring to Truter's "guidance") and 487 (his "assistance"). In the preface to his translation, Borcherds acknowledged "the kind indulgence" of Truter in revising his work.
72 Borcherds 1861: 487 wrote that he undertook to translate Van der Linden's "criminal code" "for the information of the number of strangers who had settled in the colony and for general use". The same sentiments appeared in the preface to his translation. The aim was to give that part of Van der Linden's work relating to criminal jurisprudence "an English Dress", though without departing from "the genuine sense" expressed by the author "or giving any thing but what is truly Dutch Law". The translation was therefore "free rather than strictly literal". It was "intended chiefly for the use of my English Friends" who were desirous to be acquainted with the general principles of Dutch criminal procedure and would also like to compare it "with their own excellent and comprehensive" system. Lastly, "as a Foreigner", Borcherds acknowledged the assistance of a unnamed friend in casting his translation in idiomatic and stylish English.
73 Roberts 1942: 191 n refers to it as a translation in English of the "'Code of Criminal Law' as comprised in the second book of a work on the Laws of Holland by Johannes van der Linden".
74 After an initial private initiative (messrs Walker and Robertson were in 1800 appointed as the sole printers to the Cape government), the printing press soon reverted to governmental control. That remained the position until the arrival of the Scots printer George Grieg in Mar 1823, all printing in Cape Town being done by the government. Unfortunately there is no complete record of what publications were undertaken on behalf of the general public (as opposed to official publications), but the first such appears to have been a religious pamphlet written by father Meent Borcherds, published in 1801. The actual typesetter of the translation was probably Andreas Richert (17631830), who had arrived at the Cape in 1803, and was superintendent of the Printing Office from Aug 1821 until Aug 1825: see further Lloyd 1914: 35, 37, 41-42; Smith 1971: 23-24.
75 Borcherds 1861: 308, and see also at 488: printing was ceased when Mr Henry's translation of the whole treatise arrived in the colony and Borcherds found that his was not necessary, "and hence it was not completed for publication".
76 Fine 1991 vol 2: 469-470 explains that Borcherds was instructed to compile an English translation of the criminal-law section of Van der Linden's Koopmans Handboek, but that, although (partly) printed in 1822, it was not distributed (published), presumably because the translation of Van Leeuwen's Het Rooms Hollands Recht had been introduced as authority at the Cape. We have already suggested that such introduction was unlikely and is in any event not supported by any available evidence: see text at n 25 supra.
77 Murray 1894: 97, 98 describes Borcherds as "the old gentleman, who was one of the most patient and amiable of men and certainly one of the most just and impartial of magistrates who ever sat upon the magisterial bench" and as "a grand old man in every respect, grand in appearance and in character, always ready to do a good turn for any one in need or in trouble, respected by the Government and revered by the public". "He must have been a fine, handsome man in his younger days", Murray concludes, for "[h]e was handsome even as he was venerable in his old age".
78 See Theal RCC vol 33: 1-129.
79 Idem at 5, 29-31.
80 There are references, eg, to Van der Linden "in his [law] Manual", to him "in his Practical Law Handbook", and to him as "a Modern Author of repute": see Theal RCC vol 33: 207, 219.
81 See Theal RCC vol 33: 130-387 (the enclosures) at 340 (enclosure 31). However, for understandable reasons enclosure 31 is not one of those reproduced by Theal.
82 See NA, CO 48/129 (Commissioners of Eastern Enquiry, Appendix to Report on Criminal Law and Jurisprudence, Part 2), folios 325-354: the typeset part appears in folios 325-334a, the manuscript part in 345-354. Part 1 of the appendices is in CO 48/128, while the Report itself is in CO 48/120.
83 The continued relevance of the old Roman-Dutch authorities in modern South African law drawing upon its common-law roots - as to which see, eg, Farlam 2007 - was greatly facilitated by a remarkable efforts of mainly local lawyers in translating those authorities from Latin or Dutch into English or Afrikaans. On these endeavours, until relatively recently (but no longer) supported by the South African Law Reform Commission, see especially Hewett 2000; and Veen 2001.
84 In Ceylon (today Sri Lanka), a British colony from 1802, Roman-Dutch civil and criminal law was and remained the subsidiary common law for Europeans and the indigenous populations alike: see Cooray 1974; and Van den Horst 1985. However, the local courts were said to have had a somewhat "eclectic attitude" to adopting and applying only those common-law principles that suited local civilisation and conditions: see Tambiah 1972: 128-130. Deficiencies in the common law, perceived or otherwise, were often made good by the adoption of English legal principles, more accessible to those trained in that system and enhanced by the fact that English had become the language of administration and the law: the English model was followed in legislation, judgments and pleadings, as well as in forms, conventions and traditions, and ceremonies. This resulted in a divergence between Roman-Dutch law as it applied in Ceylon and Roman-Dutch law as it prevailed in the Netherlands: Nadaraja 1972: 229. Further, indigenous systems of customary law gained recognition and, as far as these applied, Roman-Dutch law was relegated to a subsidiary law. And then the Roman-Dutch common law was superseded by English maritime and commercial law (in 1852 and 1866 respectively) and by English criminal law (in 1883). In the course of time, especially after 1820, a number of (English) judges and advocates in Ceylon did become profound civilian, Roman-Dutch lawyers (see Renton 1932: 173), but this did not last and soon, and for many decades later, there was a dearth of professional lawyers, qualified in (Roman-Dutch) law, untrained civil servants being appointed to administer justice in the lower courts: see Nadaraja 1972: 79 n 2, 87 n 143.
85 In Guiana (today, Gyana), a British colony from 1815 (it comprised Demerara, Essequibo and, from 1831, Berbice, when it became British Guiana), Roman-Dutch law likewise remained the subsidiary common law: see Lee 1914: 11-12. This irked immigrating British settlers and merchants, causing them "the most tortuous legal and economic frustrations", the more so as the continued use of the Dutch language and law allowed remaining Dutch interests, despite political control being vested in British hands, to seek "through the machinery of the law to re-establish and confirm Dutch economic power": see Farley 1955: 43, 45. In part as a result of Henry's Report (see n 41 supra), the existing criminal procedure was in 1828 and 1829 replaced by English procedure and court rules, while the civil procedure was gradually changed and approximated to English procedure: see Lee 1914: 13-14; and Ledlie 1917: 211. The unsuitable Roman-Dutch criminal law itself was replaced in 1846 by a series of ordinances introducing English principles; and English commercial law was introduced in 1864: Lee 1914: 15. In Guiana, too, a familiar problem arose, that of English-trained lawyers in charge of the administration of a legal system largely foreign and inaccessible to them: Ledlie 1917: 212. Ultimately, and although resisting assimilation more successfully than elsewhere in the West Indies (eg, in Trinidad where Spanish law was soon abolished), in 1917, the Civil Law of British Guiana Ordinance 1916 came into force and largely replaced the Roman-Dutch law by English common law so that, today, only isolated vestiges of the old system remain: see Glenn 2008: 53, 66.