The law of slavery: The predicament of the slave community at the Cape

Although slavery was not permitted in the Netherlands and in Britain, it was permitted in their colonies. The practice o f slavery iras introduced at the Cape shortly after the establishment o f the refreshment post, and ceased in 1834, long after Britain's permanent occupation o f the Cape. In this article the legal position o f the slave community at the Cape is ana­ lysed by means o f the new insights gained from the study o f various sources in the Cape Archives. The traditional viewpoint has been that the legal position o f the slave com­ munity at the Cape should be evaluated in terms o f Roman Law. There is some doubt, however, about whether Roman Law, albeit in an adapted form, was applied at the Cape during this period. The viewpoint taken in this article is that the legal position o f the slaves should be evaluated against the background o f the frame o f reference fo r law enforcement con­ tained in the Statuten van Batavia (1642) and later in the Nieuwe Statuten van Batavia (1766). From the analysis made o f the legal practice at the Cape it appears that this frame o f reference was not applied in respect o f law enforcement. It emerges, however, that the traditional viewpoint, which holds that Roman Law was applied, should be clearly qualified.


Introduction
William W ilberforce (1759), a member o f the British Parliament, described sla very as "... the greatest and most complicated evil by which the human race has ever been afflicted" (Edwards, 1942:34).
In ancient times slavery w as a well-known and accepted phenomenon.In this re gard the Romans w ere no exception (cf.Van Zyl, 1977:75-78).An inevitable result o f the conquests leading to the establishment o f the Rom an Empire w as the presence o f slaves in great numbers (Dannenbring, 1984:84-85).Simon (1930: 227) describes the fate o f prisoners o f w ar as follows: (Slavery) was the ordinary destiny of prisoners of war if they were not massacred, so that their enslavement might be regarded as a milder fate than would otherwise be their lot (cf.Hattingh, 1990:6).
The Latin term for a slave, namely servus, indicates approval o f this m odus operandi: Servi autem ex eo appellati sunt, quod imperatores captivos vendere iubent ac per hoc servare nec occidere so len t........ (Inst. 1.3.3)1Shortly after Van Riebeeck had arrived at the Cape, the slave system w as in troduced in accordance with the policies o f the Vereenigde G eoctroyeerde Oost-Indische Compagnie (the V .O .C.) (W orden, 1985:6-18;Hattingh, 1990:6-8).The attitude o f the slave ow ners at the Cape tow ards slavery as an institution was strongly influenced by the fact that the V.O.C. permitted and afterw ards regulated the slave system.They did not only accept the slave system as an officially en dorsed institution, but also regarded their rights in term s thereof as sacred and inalienable.W orden 's (1985:16) report is worth repeating: (Slavery) was perceived as an institution ordained by the ruling authority and accepted as such ... The first settlers accepted slaves in much the same way as they did land and seed.Even after slavery became well established, owners saw it as a system of labour maintained and supported by the go vernment.
It is therefore not surprising that later efforts by the British Government to im prove the fate o f the slaves at the Cape w ere vehemently resisted by the slave owners.It is also reported that the drive to end the slave system at the Cape w as not supported by an Anti-Slavery Movement com parable to the movements in Britain (W atson, 1991:67-92).According to W atson (1991:6), this sentiment still has an effect on m odem thinking in South Africa.W atson rem arks that: (His study) does maintain that one principal source was the failure o f early South African liberalism to develop over a century and a half either a sys tematic and comprehensive ideology of human rights or a coherent move ment to oppose the steady reduction of the rights of South Africans ... This failure, I believe, began with the Cape's antislavery movement itself.

C.K. de Beer
The only organised effort by whites to curb the effect o f slavery at the Cape was the inception o f the Cape o f Good Hope Philanthropic Society for Aiding D e serving Slaves to Purchase their Freedom on 27 June 1828.The activities o f the Society w ere sanctioned by Proclamation 70 o f 3 February 1830 (Watson, 1991: 67-92).The Society's contribution towards the ending o f slavery at the Cape was a limited one.N ot only did the Society allow its members to own slaves, but it also refrained from attacking the validity o f slave property and from exposing the contradiction between Christian principles and slavery.It is also remarkable that the public debate on slavery at the Cape w as a practical, and largely strategic, discussion.This discussion accepted the philosophical underpinning that proper ty in humans w as legitimate and that the right to liberty was subordinate to the right to property and the concomitant need to a secure labour supply.The diffi culties experienced by clergymen to transform the debate to one regarding moral principles is aptly described by W atson (1991:193-194) as follows: Their views were complicated by the ideologies o f their denomination or mission society, by the tensions between their secular and spiritual roles, and by their personal relations with their parishioners, both black and white.
Apart from the attitude o f the colonists at the Cape towards slavery, it is also im portant to em phasise that there w as a considerable difference between the de fa c to and de ju r e position o f the slaves.Ross's (1980:5) comments on the early legal system at the Cape caught my atten tion.He remarks: South Africa was clearly ruled by a code o f law ... and moreover by one which was based on a system to which more concentrated legal thought had been given, at a higher theoretical level, than any other in the seventeenth and eighteenth centuries.
Slaves were not without any rights.Their limited rights were, however, suppres sed by the realities to which they were subjected.W orden (1985:113) refers to one aspect o f their subjugation in the following terms: (T)here were numerous means of evading the laws which were supposed to protect slave interests.As Le Vaillant commented after his visit in the early 1780's, these wise laws do honour to the Dutch government, but how many ways are there to elude them.
Slaves themselves w ere under real pressure when it came to the enforcement of their limited rights.For instance the Statutes o f Batavia (1766), which were ap plied at the Cape, allowed slaves to report maltreatment and abuse, but also stipulated that when a complaint w as unfounded, the slave would be whipped and returned to its m aster.2The realities slaves faced at the courts, com bined with the effect that a complaint would have on the master-slave relationship at home, forces one to conclude that only the m ost severe cases o f maltreatment were reported (Ross, 1980:7;Dooling, 1991:80).I support the view expressed by Ross (1983:1) (T)here has never been ... a (slave) society that was not brutal in the extreme.A mild slave regime is a contradiction in terms.Slavery is a form of social oppression that is based on the use of force, which is always available to, and frequently employed by the slave-owning class to impress its will on the slaves.If, somewhere in the world, there exists a social institution that is called slavery in which brutality and denigration are absent, then the concept has been stretched so far as to be empty and meaningless...

Proposed legal framework
Van Riebeeck came to the Cape as an employee o f the V.O.C.The V.O.C. was a company that received its Charter from the State-General in 1602.The Cape remained under the authority o f the V.O.C. until 1795 when it w as occupied by the British for the first time.The V.O.C. w as dissolved during this time and when the British returned the Cape in 1803, it cam e under the authority o f the Batavian Republic.In 1806 the British reoccupied the Cape, this tim e on a more permanent basis (Visagie, 1969:1-13,40-41,98-99).
It is important to note that slavery w as not perm itted in the N etherlands (De Groot, 1952 1.4.2;Van Leeuwen, 1708 1.5.4;Van der Linden Inst.1.2.3) and Britain.3Slavery w as, how ever, tolerated in their respective colonies, and history testifies that both countries and their citizens w ere deeply involved in the Atlantic slave trade (Postma, 1990:10 ff., Anstey, 1975:3 ff.).This fact w ould cause great difficulties for the British Government in its drive to end the slave trade and slavery (Hurwitz, 1973:48-76;Clarkson, 1968 1:1 ff).
Comments on the legal position o f the slaves at the Cape m ust account for the various sources o f the early C ape law.
It is well-known that the Charter o f the V.O.C. did not specify w hich law the com pany should apply in the territories under its control (Visagie, 1969:24-39;Van Zyl, 1907: 132, 135-138).N either did the Charter grant the V.O.C. any legislative pow er (D e Vos, 1992:227. Contra: Swanepoel, 1958:7, 14).The uncertainty resulting from this situation has received attention from many legal historians.Authoritative sources now accept that in the early judicial processes reference w as made to the law as it w as applied in East-India (Visagie, 1969:69).
Due to this development, Roman Dutch law became the basis o f the legal system in South Africa (Van Zyl, 1983:420 ff.).
Although no legislative powers were vested in the V .O.C., it produced the Sta tutes o f Batavia (1642) and the New Statutes o f Batavia (1766).These statutes as well as later Resolutions o f the Council o f India were destined to be applied in V.O.C. territories.Since these statutes and resolutions were not ratified by the State-General, it is often argued that they were ultra vires (Visagie, 1969:29-36;Roos, 1897:4-9;Van Zyl, 1907:132-147, 241-258, 366-383).It is generally accepted that the legal position o f the slaves at the Cape was go verned by the principles o f Roman law, albeit in a veiy modified form (Visagie, 1969:89;Stock, 1915:330-331).The view is also expressed that the principles o f Roman law did not apply when they w ere not reconcilable with local placaats and circumstances (Dooling, 1991:129).should be determined by the "beschreevene Keyserlyke w etten en regten" (Ro man law).7 It is therefore submitted that it is incorrect to refer only to the application o f the principles o f Roman law to the slaves at the Cape.This simplistic view does not take into account the legal framework dictating the application o f the principles o f Roman law as specified in the Statutes.It also tends to lose sight o f the fact that substantial aspects o f Rom an slave law w ere incorporated in the Statutes, albeit in a modified form (De Beer, 1992:124-131).
In practice, however, the legal framework as prescribed by the Statutes w as not adhered to at the Cape.The Fiscal/Attorney-General prescribed his own frame work which w as incompatible with that o f the Statutes (Theal, 1899:IX 146).He advocated the following precedence:

*
The laws directed at the slave community which had been made and promul gated by the Colonial Government.Before any final conclusion is drawn, it is essential that the legal practice at the courts o f law be examined.Prudence is the mother o f wisdom -this truism is also applicable when it comes to conclusions drawn from the records o f these ear ly court cases.
Up to approxim ately 1827 the Court o f Justice and the Court o f Appeal did not record the reasons for their judgments (Botha, 1915:319, 323;Visagie, 1969:70)

*
Although definite slave rights were enshrined in legislation, the precarious position o f the slaves in general, and before the courts in particular, w as evi dent.

Developments: 1806 to 1834
W hen the British reoccupied the Cape in 1806 they pursued their well-known policy in respect o f conquered or ceded colonies (Visagie, 1969:95-97;Van Zyl, 1907:132-135).For the Cape this policy meant that justice w as to be adm inis tered in the same manner as had been customary until then, and according to the laws, statutes and ordinances which had been in force.

C.R. de Beer
At this stage the British Government was under great pressure from the Anti-Sla very M ovement to end slave trade in its territories.This w as legislated in 1807, while the Anti-Slavery Movement continued their campaign now focusing on the abolition o f all slavery (Hurwitz, 1973:21-76;Edwards, 1942:33-63, 81-90, 111-150).
As indicated above, the British authorities had to take cognisance o f various sources o f the slave law at the Cape in their efforts to accommodate the interests o f the slave community.There is definite proof that they up this challenge.Not only w ere the Fiscal and Attorney-General requested to provide details o f the legal position o f the slaves13, but at least two sets o f documents in the Cape A rch ives14 also prove that the authorities had the desire to acquaint themselves with the details o f the relevant provisions.In the Archives there is a handwritten copy o f the A lphabetical Version o f the N ew Statutes o f Batavia in English as well as a list o f the local placaats relevant to the slave community.
The British efforts to limit the number o f slaves at the Cape date back to 1795.
During the British occupation o f 1795 to 1803 special permission, which was granted only under special circumstances, was required for the importation of slaves (Latsky, 1943:5-8;Stockenstróm, 1934:23-29;Edwards, 1942:34-36, 47-54).After slave trade had been prohibited in British territories in 1807 (Clarkson, 1968:Vol II 506-508, 576-587), the Government at the Cape had to attend to the real danger o f the enslavement o f the indigenous people.This threat urged the authorities to promulgate a number o f ordinances15 which legislated the movement, employment, land ownership and residence o f the Khoisan.As pressure mounted from the Anti-Slavery Movement in Britain and its affiliates at the Cape, these law s becam e controversial, and were often described as justifying the slavery o f indigenous people (Edwards, 1942:51-63;Van der M erwe, 1984: 149-151).There can be little doubt that these early laws introduced into our history the concept o f group areas and pass laws.
On the other hand, efforts were made by o f the British Government to improve the fate o f the slave community.Proclamations were promulgated in pursuance o f this goal.16One o f the most important changes that were introduced, w as the introduction o f the system o f Slave Protectors and G uardians.17M ason (1991:108) describes the effect o f this system on the master-slave relationship as follows: Since these men were independent of, and superior to the masters, the law struck at the heart of the master-slave relationship.It undercut the slave holders pretensions of being the sole source of protection, discipline and indulgence for their slaves.
The Guardian o f Slaves had to assist slaves in legal proceedings: ... wherein any Slave may be charged with any offence punishable by Death, Banishment, or Transportation; or wherein any question may arise as to the right of any alleged Slave to Freedom; or wherein any Person may be charged with the Murder o f any Slave, or with any offence against the person of any Slave; or wherein any question may arise respecting the right of any Slave to any such Property as he or she is ... declared competent to acquire.18 The effectiveness o f this system w as restricted by the fact that the Protector or Guardian only reacted to the complaints lodged by slaves, who in turn were subjected to the serious consequences o f unfounded accusations and various other retaliatory measures o f slave ow ners (M ason, 1991:109-115).
The compulsory registration o f slaves w as also legislated.19This legislation proved to be impractical and caused resentm ent among the slave-owning com munity (Latsky, 1943:27-29).20Their opposition w as aggravated because the Court o f Justice w as instructed to take into account the fact w hether or not a slave w as registered when his or her freedom w as at stake.This legislation did not contribute substantially tow ards the improvement o f the position o f the slave 2® The ratio for this Proclamation, as given in the preamble thereof, was to protect in digenous people from being subjected to slavery.
C.R. de Beer community.Slave registers proved to be outdated and unreliable while the unenviable position o f slaves before the courts remained essentially unchanged.
The efforts o f the British authorities were, however, not without success.The moves tow ards the recognition o f slave marriages and their families were a major step in the process o f humanizing the position o f slaves.21Slave marriages were eventually even allowed against the will and without the permission o f the slave owner.In addition, slaves obtained the restricted right to acquire and own pro perty and to dispose th e re o f22 The right o f the slave owner to his property (slaves) and to their labour was regarded as inalienable and sacred.The right acquired by a slave to buy his free dom, even against the wish o f his owner, was therefore experienced as a serious inroad into the inalienable right o f ownership which even primitive societies uphold.23 The master-slave relationship w as dealt a severe blow by the restriction placed on owners regarding the working hours o f slaves24 and the corporal punishment o f their slaves.25 To support these measures, serious efforts w ere made to ensure that the rights o f the slave community would be upheld.The admissibility o f the testimony o f slaves in judicial proceedings w as reformed,26 the Guardian o f Slaves w as com pelled to pursue all complaints lodged by or on behalf o f slaves 27 Clearly the aim o f the British authorities w as to undermine the philosophical and practical foundations on which slavery w as based and to protect slaves from the Koers 58(4) 1993:417-430 The law o f slavery: The predicam ent o f the stave community at the Cape heartless behaviour o f their owners.The heart o f the slave system w as, however, left untouched.The legislature w as reluctant to make any substantial inroad into the property rights o f slave ow ners.28The authorities' reluctance to remove the provisions condemning slaves when a complaint against their masters w as ruled to be unfounded29 proved to be a major stumbling-block in the execution o f slave rights at the Cape.It becam e evident that the predicament o f the slave com munity would only be resolved by the total abolition o f slavery.
On 1 Decem ber 1834 slavery becam e illegal in British territories.30It w as, how ever, replaced by a system o f apprenticeships31 which, on the pretext o f ensuring training and job s for slaves and labour for the colonists, boiled down to a con tinuation o f the slave system albeit in a more respectable form (Edwards, 1942:117-214;Simon, 1930:216-217;Lovejoy, 1983:233-234).This prolonged harassment o f the former slave community ended in 1838 when the system o f apprenticeships w as finally abolished.

*
The collection o f laws under the title o f lijfeigenen o f the Statutes o f D utch India, in so far as they w ere not contrary to the existing laws o f the Colonial Government; and finally * Roman law in so far as it w as not contrary to the Colonial Law, the Statutes o f India, or the spirit o f m odem jurisprudence.The Fiscal/Attomey-General w as a very important and sometimes controversial official.Theal (1899 XXXIII:62-70) describes the pow ers o f the Fiscal/A ttom ey-General as follows: (H)e was enjoined to maintain and protect before the Court o f Justice the greatness and power o f the Batavian Government and o f all High and Low Legal Authorities appointed for the direction o f public affairs in the Colony o f the Cape, and further defend the Property, Means and Revenue, rights and privilege o f the Government against all fraud, contravention, and spo liation whatever by whomsoever attempted and this either as Prosecutor or Defendant.The key and important role played by the Fiscal/A ttom ey-G eneral in the ad ministration o f justice urges one to conclude that in practice the legal framework he proposed did have som e authority.Par.89 New Statutes o f Batavia (1766); Par.86 New Statutes o f Batavia (Alphabetical Version).Apart from the Fiscal/Attom ey-General's view, cognisance must be taken o f a decision taken by the Political Council at the Cape on 12 February 1715.This decision em powered the Court to enforce the Statutes o f Batavia, but only in so far as the Statutes are not incompatible with the local placaats, ordinances and resolutions o f the local Government.According to Stock (1915:328), consi derable stress w as laid in later years upon the Resolution o f 1715 and its impor tance seems to have been greatly exaggerated.This Resolution was in fact mere ly a reply to a letter from the Court o f Justice requesting an indication on the ap plicability o f the Statutes.
. It is therefore almost impossible to comment on the legality o f the submissions o f counsel which, incidently, w as documented in extenso, and in many cases sub stantiated with full details o f relevant authorities.Until recently the accessibility o f the records o f the Court o f Justice and the Court o f Appeal also proved to be a major stumbling-block.Legal historians had to cope with the time-consuming and almost impossible task o f working at random through the available and unsystematised docum ents and series.A very useful and, in my opinion, indispensable tool w as developed by the re search team from UW C-PU for CHE for this purpose.This team recently pro duced an index o f the civil cases o f the Court o f Justice and the Court o f Appeal from 1806 to 1827.This com puter based index allows legal historians direct ac cess to the docum ents containing the relevant data on any predetermined subject.From the submissions o f counsel before the respective courts it is apparent that they accepted the applicability o f the Statutes o f Batavia to the slaves.8From the detail references o f counsel it is clear that the Alphabetical Version o f the New Statutes o f Batavia w as used.9The Resolutions o f the Council o f India which appeared later than the New Statutes o f Batavia were also used by counsel to 8 Munnik v Truter qq Hendrik C J 1643 (139-311), C J 2232 (359-361), 266-267; Denyssen v Beck C J 1620 (1-980), C J 2227 (570-571), 698-700.9 City v Klerk G H 48.2.24 (558-747), G / / 48.1.1 (261-262), 576-577.support their argum ents.10There is evidence that counsel w as aw are o f the legal framework dictating the application o f Roman law as prescribed by the Statutes References to the Resolution o f the P olitical Council o f 1715 also received some prom inence.12It therefore appears that the legal framework as prescribed by the Statutes did not receive the required attention.It is also fair to conclude that with the support o f the Attorney-General the Resolution o f the P olitical Council o f 1715 had an im pact on legal thinking.A part from the uncertainty surrounding the legal framework there w as no doubt about the relevant legal principles to which the slaves w ere subjected.Before moving to the changes brought about by the British since 1806, it w ould serve the purposes o f this paper to summarise the situation that confronted them: * The basic principles o f Rom an law w ere still relevant, either in their 'co dified' form as part o f the Statutes, or in their subsidiary role as part o f the "beschreevene Keyserlyke W etten en Regten".There are indications, how ever, that Roman law w as not upheld in all respects at the Cape.* In addition, both the Statutes o f Batavia and the local placaats contain a large number o f provisions aimed at the local needs and day to day life o f the slave community.
To the dismay o f local slave owners a number o f '3 See the reports of Attorney-General Denyssen of 16 March 1813 and 26 April 1813 in Theal Records IX 146-161, 170-174.As early as 29 November 1797 the Fiscal was requested to supply answers to the questions of Earl Macartney regarding the legal position of slaves at the Cape.