OF SOUTH AFRICA. A TREATISE BASED ON VOET'S COMMENTARIES ON THE PANDECTS, WITH REFERENCES TO THE LEADING ROMAN-DUTCH BY MANFRED NATHAN, LL.D., ADVOCATE OF THE SUPREME COURTS OF THE CAPE OF GOOD HOPE AND THE TRANSVAAL ; IN TWO VOLUMES. VOL. I. GRAHAMSTOWN, CAPE COLONY: AFRICAN BOOK COMPANY, LIMITED, Law Publishers. LONDON: BUTTERWORTH & CO., 12, BELL YARD, TEMPLE BAR. 1904. PREFACE. AT the beginning of a new century, when the consolidation of British power in South Africa is no longer a nebulous vision, but actually within grasp, it has been thought desirable to attempt a work which has not hitherto been undertaken-the setting forth of the principles of the Roman-Dutch Law, which is the common law of all the South African colonies, as well as of Ceylon and British Guiana. The history of South Africa for the past twenty years has made it clear that in constitutional matters a radical change in legislation was not only desirable, but a matter of absolute necessity. In the Transvaal, for instance, such obnoxious measures as the Aliens' Expulsion Law, the Press Law, and the Judge's Testing Right Law have had to be taken off the statute book without delay. The political laws regulating citizenship and the franchise will have to be altered, and fiscal reform is greatly needed. A policy of pruning and weeding out has also been adopted in the Orange River Colony-will perhaps be adopted even in the Cape Colony-though to a less extent than in the Transvaal. But the common law of the country, the system under which the great mass of the people daily exercise and enforce their rights, cannot be changed by simple legislation. Nor is there any necessity for such a course. The Roman-Dutch Law is practically the Roman Law, gradually adapted to the growing needs of a modern community; and the Roman Law is the basis of the jurisprudence of most modern countries, where it has been found to work admirably. During a working experience in South Africa of a century under British rule, the Roman-Dutch system has fulfilled all that could reasonably be expected of it. There is no apparent reason why it should not remain in vogue until the end of time. In matters for which it does not provide (such matters, mainly, as Roman lawyers were never called upon to deal with practically) the English Law is invoked for decision; and hitherto the two systems have not clashed. Modern commercial usages have evoked and evolved a peculiar and special code of rules, known collectively as English commercial law. In connection with such usages it would be manifestly absurd to apply the Roman Law. But for all the personal, everlasting relationships of life the great Roman and Roman-Dutch lawyers made provision; and modern experience has shown how equitable were the rules which they laid down and enforced. The Roman-Dutch Law, as we know it, is definite and clear; but it is to be gathered from a vast number of authorities, which are not always ready to one's hand. It has, therefore, been thought desirable to make a collection, however feeble, of the principles of Roman-Dutch Law, comparing the authorities where they differ, and stating the effect of modern decisions by South African judges, who are the best commentators on Roman-Dutch Law as a practical working system. In this compilation of law the principles laid down by John Voet in his Commentaries on the Pandects have been adopted almost in their entirety. Voet is such a universally-recognised authority, par excellence the prince of Dutch jurists, that no apology is needed for this absolute reliance on him. At the same time it has not been forgotten that his great work is a collection of university lectures and expositions. Consequently, all explanatory or argumentative passages have been discarded in making selections from his work. At the same time, obsolete matter, and rules purely local to the Netherlands in their application, have been omitted. To every statement of law by Voet or other Dutch authorities, a note has been added giving the effect of modern decisions, where such decisions exist, or indicating the alterations effected by legislation in South Africa. It is hoped that the index to this work will also serve as an index to Voet's Commentaries. The references to Voet's work have been given at the end of the sections of this work. The numbers at the end of a section refer to the corresponding section in Voet's |