Law and community in a slave society : Stellenbosch district, c.1760-1820
Master Thesis
1991
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University of Cape Town
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Abstract
This dissertation is primarily concerned with the functioning of the law in the Cape Colony in the late eighteenth and early nineteenth centuries as it pertained to slaves and masters (and to a lesser extent Khoi servants). It examines the operation of the law in one particular rural district, namely, Stellenbosch in the years c.1760-1820. The chief primary sources include criminal -- and on a smaller scale civil -- records of the local and central courts of the colony. Travellers' accounts have also been utilised. The study of one particular rural district reveals the extent to which the law was intricately woven into the fabric of the settler 'community'. Despite differentials of wealth, the settlers in Stellenbosch district were essentially part of a community of slaveholders. The contours of the settler community fundamentally influenced every step of the legal process. Members of the settler community were in a situation of face-to-face interaction. This meant that often, in conflicts between settlers, recourse to the law was seen as a last resort and mo.re emphasis was placed on the maintenance of personal social relationships. However, this community, of which a landed elite stood in the forefront, had discordant features and domination of the poor by the rich did not go without any struggle. The features of the settler community also fundamentally influenced the position of slaves in the law. Access to the courts for the slaves for complaints against their masters was very significantly determined by conflicts which existed amongst slaveholders. In court the extent of solidarity amongst members of the community could ultimately determine the chances of success for slaves. Another way in which concerns of community influenced the legal process was by the importance which was attached to the reputations of individual slaveowners. Often such concerns overrode strictly legal ones. Even in determining the severity of sentences in criminal cases reputations of individuals were of primary importance. The VOC not only served to bolster the authority of slaveowners but also to keep the wider society in control. Therefore, it could not allow slaveholder tyranny over their labourers to go unchecked. Moreover, the legal system had to be more than simply an instrument in the hands of the master class. At the local level, the VOC could be seen to be acting in the interests of the wider society by listening to the complaints of slaves and prosecuting individual masters. Roman common law, as opposed to statutory law, was the law most commonly used in criminal cases involving slaves. This had two important implications. Firstly, Roman law did not deny the slave any personality and prosecutors constantly reminded slaveowners that slaves were persons. Secondly, Roman law had an apparent universality in that its dictates were made applicable to all in society. These factors combined to make the law perform a hegemonic function.
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Bibliography: pages 164-177.
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Dooling, W. 1991. Law and community in a slave society : Stellenbosch district, c.1760-1820. University of Cape Town.