Summary of discriminatory Roman-Dutch Law principles pertaining to VOC-occupied Cape

  • Amalgam of Roman Law, Germanic/Hollandic Common Law & Judæo-Christian Canon Law forms legal basis of Dutch society in general.
  • Civil society in Dutch colonies consists of 3 categories of legal subjects: free persons (imported, indigenous or locally born), slaves (imported or locally born of slave parents) and a concessionary category of freed persons (former slaves).
  • The established faith is Christian but the established church is Protestant and Reformed.
  • The rest of the world is regarded as being either Jewish or Mohammedan (Moors) and the remainder - including the Chinese and Hindus (Gentiam / Jentives / Jintoos / [Gentiles]) - as being 'unenlightened' (Heathen or Pagan), whose testimony in law is inadmissible.
  • Christians are ipso facto free (or if enslaved entitled to freedom).
  • Christians have to be baptized and sufficiently culturally Netherlandized free persons (Europeans or creole / Cape-born whites), free-born persons (generally colonized indigenes & later the offspring of freed persons), or freed persons (former slaves now manumitted).
  • Marriage is non-polygamous and only legal between a Christian man and Christian woman (irrespective of any racial or ethnic background).
  • Marriage is initially exclusively an ecclesiastical institution ('canon marriage') -legality later secularized requiring recognition by civil authorities ('civil marriage').
  • Marriage no longer has to be performed in church to be legal. (Lutherans, Mennonites & Roman Catholics, for example, can marry legally at Cape with permission from Commissioners of Matrimonial Affairs, usually officers of Council of Justice & elected burgher representatives) - subject to ecclesiastical approval (eg proof of baptism & confirmation).
  • Marriage between Christians & Jews and Christians & Muslims, are not legally recognized.
  • Slaves as unfree people have no right to legal marriage but are encouraged to 'marry' inter se.
  • Non-Christian or culturally alien marriages between slaves (eg Muslim, Hindu, polygamous or indigenous African / Asian), although encouraged and unofficially tolerated, have no legality.
  • Morality & Immorality are legally regulated deriving from Canon Law (eg at one stage sex between a Christian and a Jew qualified as bestiality - sex with an animal)
  • Extra-marital intimacy (incest, adultery, concubinage, whoredom, fornication, sex between Christians and non-Christians, sodomy & bestiality) are outlawed.

Criminalization and juristic / judicial condemnation of 'unnatural' practices / acts or sexual offences between males are biblically derived. These feature in lex Julia de adulteriis imposing the death penalty. Such acts are expressly proscribed by Justinian in his Novels. Roman-Dutch jurists lump all unnatural offences together under the title Sodomie, Onkuisheid tegen de natuur or venus monstrosa. A discernible pre-occupation with punishment takes precedence over niceties of definition. The concept of unnatural acts appears to cover a multitude of sins, as it were. Sodomy and bestiality (often collectively known as buggery), as they are understood today, are not separate crimes, but simply ways of committing venus monstrosa. The crime is constituted by the 'gratification of sexual lust in a manner contrary to the order of nature'. Jurists are not ad idem as to what constitutes unnatural acts. That the concept is highly relative is confirmed by influential contemporary jurists such as Joost de Damhouder (1507-81) & Carpzovius (1595-1666) opining that even ordinary sexual relations between Jews and Christians are punishable acts qualifying as sodomie.

My thanks to Mansell Upham for sharing this information.


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