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- Volume 16, Issue 1, 2010
Fundamina : A Journal of Legal History - Volume 16, Issue 1, 2010
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Volume 16, Issue 1, 2010
Author Gardiol Van NiekerkSource: Fundamina : A Journal of Legal History 16, pp 472 –485 (2010)More Less
By the middle of the nineteenth century the various independent and autonomous territories in South Africa began regulating the application of African customary law, thus introducing State-law pluralism. However, recognition of that law invariably excluded some of its core institutions which were regarded, at least by Western or European standards, as uncivilised.
Initially, the superior courts did not have original jurisdiction in matters involving African customary law. In the Cape Colony the Supreme Court merely had appellate jurisdiction in civil appeals from the magistrate's courts in the Transkei, the latter courts having received original jurisdiction in cases involving customary law from the 1880s when the Transkei was annexed to the Cape. In Natal, the Supreme Court took over the jurisdiction of the special Native High Court only in 1896. Ironically, the concern of the ordinary courts that they did not have sufficient knowledge of African customary law, was met with the dismissive response of Harry Escombe, Attorney General of Natal, that "Native law can be judged without any knowledge of Native laws and customs".
During this period in South African legal history, the application of African customary law and the problems that resulted from the recognition of a legal system foreign to those who were in charge of the administration of justice at all levels, were secondary in importance to another, more pressing, issue which would continue after Union (1910) and late into the twentieth century: how to accommodate English law in the (Roman-Dutch) common law.
George Rex of Knysna : a civil lawyer from England and first marshall of the Vice-Admiralty Court of the Cape of Good Hope, 1797-1802Author Johan Van NiekerkSource: Fundamina : A Journal of Legal History 16, pp 486 –513 (2010)More Less
In South African history and folklore, the often mythical story of George Rex is widely known. Popularly the man himself is better remembered for what he was not - royalty - than for what he actually was. From a legal historical point of view, two aspects of his life are of interest : his training and career as a civil lawyer in England, and his role as marshal of the Vice-Admiralty Court at the Cape of Good Hope. And it is on these aspects that I will focus here However, these are but two small pools of light on the broad and often dark canvas of Rex's life and some brief and general biographical and historical descriptions will be required to provide the necessary perspective.
For many years, claims flourished both in England and in South Africa that George Rex was of royal descent. More particularly, it was suggested if not at times held out as fact that he was the son of a young Prince George of Wales, the future King George III of England (1738-1820), and the reputedly beautiful Quakeress and commoner, Hannah Lightfoot (1730-1759). Depending on whether or not they were taken to have been (secretly but legally) married at the time, George was described as the Prince's legitimate or at least his natural son, with concomitant claims to the throne. And hence, so the myth went, George was in 1797 "banished" to the Cape to avoid royal embarrassment, with Crown connections arranging a suitable appointment for him there and supporting him with an annual allowance of £1 000 and a grant of lands, on condition that he never married.
These claims of royalty, for long vigorously believed, supported and spread by many despite the fact that objectively regarded they were based on circumstantial, undocumented, unsupported and untrustworthy evidence derived from often suspicious, sensationalistic, journalistic or anonymous sources, have now thoroughly been discredited. In 1975, already, an historian who traced Rex's genealogy could declare that "[n]owadays academic historians give no credence to stories that George III, before he became king, had a romance with a Quaker girl who bore him children". And in 2003, the results of genetic tests on Canadian, New Zealand and South African descendants of George Rex failed to match the results of those on a descendant of George III, and appear to have proved finally that he was an ordinary commoner and not of royal descent.
Author Christa Van WykSource: Fundamina : A Journal of Legal History 16, pp 514 –525 (2010)More Less
Hendrik Arend Heyl, sy vrou en drie klein kindertjies kom op 13 Junie 1858 in Kaapstad aan - na 'n seereis van agt en sestig dae uit Nederland. In 'n dagboek wat vandag nog in die familie se besit is, maak hy noukeurige aantekeninge van hul reis aan boord van die Isaäc da Costa.
Author Deon Van ZylSource: Fundamina : A Journal of Legal History 16, pp 526 –538 (2010)More Less
I have known Philip Thomas since the early seventies of the previous century and have held him in the highest regard since he was first "imported" from the Netherlands by Professor Paul van Warmelo, my predecessor in the Department of Roman Law and Legal History at the University of Pretoria. From the outset he impressed me as a sincere, hard-working and dedicated legal historian and academic. I am still indebted to him for the trouble he took, quite unsolicited, in drawing my attention to a number of errors in the Afrikaans version of my text book on Roman private law, hence enabling me to avoid such errors in later printings and in the English version.
Although the present contribution may be taken as constituting a long-overdue token of gratitude to Philip for his assistance in this regard, it is primarily intended as a mark of appreciation for his wide-ranging efforts over many years of unconditional commitment to academic research and teaching. In addition I have chosen the topic of Ciceronian virtues and values not only in recognition of his regular references to Ciceronian sources in his own work on Roman law and legal history, but also because we shared a love for and deep-seated interest in Cicero's major contribution to the reception of ancient Greek legal thought and philosophy into that of Rome and the West. It goes without saying that I am particularly privileged to have the opportunity to honour his name in this way.
My own interest in Cicero must, I believe, be attributed to the passion I developed for his life and works during my secondary school Latin studies under the guidance of Mrs M J (Jean) Smart at Springs Boys' High School. From our first greeting (salvete pueri - salve domina) in 1957, her inspiration served to guide me into law and languages, including an all too brief academic career in Roman law and legal history. Much of this inspiration was derived from Cicero's orations, such as the Pro Sexto Roscio Amerino, In Verrem, In Catilinam and Philippicae, and his philosophical treatises, such as the De amicitia and De senectute to which, amongst other Ciceronian sources, I have occasionally referred in publications and judgments handed down over a long period of time. Needless to say I had no difficulty in dedicating my first contribution on Cicero to Mrs Smart.
De receptiegeschiedenis van de patria potestas en de maritale macht in het Nederlands Burgerlijk Wetboek van 1838Author Emese Von BoneSource: Fundamina : A Journal of Legal History 16, pp 539 –550 (2010)More Less
In de feestbundel voor Philip Thomas wil ik een uiteenzetting geven van de receptiegeschiedenis van de patria potestas en de maritale macht in het Nederlandse Burgerlijk Wetboek van 1838. Professor Thomas, alumnus van de Erasmus Universiteit Rotterdam, heeft zijn wortels in Nederland liggen en daarom leek het mij gepast om voor zijn afscheid als hoogleraar Romeins recht en rechtsgeschiedenis een Nederlands onderwerp uit de rechtsgeschiedenis in deze feestbundel te etaleren.
De patria potestas en de maritale macht hebben altijd een rol gespeeld in het Romeinse recht en zijn in Nederland terug te vinden in het Burgerlijk Wetboek van 1838 via de weg van de Franse Code Civil.
Ik zal in dit artikel eerst de patria potestas en de maritale macht behandelen in het Romeinse recht. In paragraaf 3 zal ik de patria potestas en de maritale macht behandelen in de Franse Code Civil via De l'Esprit des Lois van Montesquieu en de werken van Robert Joseph Pothier. In paragraaf 4 zal ik deze begrippen schetsen in het Nederlands Burgerlijk Wetboek van 1838, waarna ik zal afsluiten met een conclusie.
Author Andreas WackeSource: Fundamina : A Journal of Legal History 16, pp 551 –562 (2010)More Less
Angesichts des einem Erben unentgeltlich zufallenden Vermögensvorteils klingt das aus dem Niederländischen stammende Sprichwort ,,Erben ist kein Gewinn" geradezu paradox. Wem eine Erbschaft zufällt, der kann sich im allgemeinen als Glückpilz betrachten. Erbschaften sind meistens lukrativ. Der merkwürdige Satz besagt das Gegenteil. Man erklärte ihn überwiegend aus den Unannehmlichkeiten der Nachlassabwicklung, die der Erbe übernehmen muss, insbesondere aus seiner Haftung für die Nachlassverbindlichkeiten (,,Wer einen Heller erbt, muss [zuweilen] einen Taler bezahlen"; vgl. §§ 1967 ff. BGB). Aber die bürokratischen Beschwernisse der Nachlassabwicklung fallen gegenüber dem zufließenden Vermögensvorteil meistens nicht ins Gewicht; und eine ausnahmsweise überschuldete Erbschaft kann man ausschlagen. In diesem herkömmlichen Verständnis enthielte die Aussage keinen Rechtssatz, sondern höchstens eine (zudem recht ungenaue) Erfahrungsregel oder Lebensweisheit.
Author Tammo WallingaSource: Fundamina : A Journal of Legal History 16, pp 563 –577 (2010)More Less
Finding a subject for an article for Philip Thomas was not difficult. There had to be some sort of a Dutch-South African connection, and plenty of subjects fit that bill. Joannes van der Linden is at least as good as any, but probably better. He prepared the first finished draft Civil Code for the Kingdom of Holland, but his works also found their way to South Africa, and indeed his famous Regtsgeleerd, Practicaal en Koopmans-Handboek of 1806 was formally the "Code" in the Transvaal Republic between 1859 and 1901, and has maintained a considerable importance in Southern Africa ever since. Strangely, Van der Linden is a rather under-researched subject, which provided another reason to have a good look at him and his work. And finally, Philip Thomas himself gave a paper on Van der Linden's draft Code at the conference of the Société Internationale "Fernand de Visscher" pour l'Histoire des Droits de l'Antiquité in 1999, in Exeter, so I am confident that he will enjoy reading about him, and hopefully I can tell him some things he may not have known.
Author Laurens WinkelSource: Fundamina : A Journal of Legal History 16, pp 578 –587 (2010)More Less
Legal measures to protect economically and socially weaker parties are supposed to be a rather recent phenomenon in legal history. Indeed, at first glance they are not clearly present in Roman law and cannot be found to occur earlier than the nineteenth century. They were during the latter period a necessary consequence of the blatant forms of inequality which flowed from the Industrial Revolution. On a legislative level, measures to protect weaker parties may also be understood as a reaction against the ultra-liberal ideas behind the codifications of the early nineteenth century. However, imposed legal protection sometimes takes another form that existed already in classical Roman law, or a form that developed during the reception of Roman law in civil-law countries.