ROMAN DUTCH LAW JURIST VAN DER
KEESEL’S
MANUSCRIPT AT THE COLOMBO LAW
LIBRARY
Hemantha Situge LLB. (Sri Lanka)
Attorney at Law
hemantha.situge@gmail.com
Our legal heritage is
steeped in Roman Dutch Law - our common law. One of the founders of the Colombo
Law Library, (1) Charles Ambrose Lorenz’s (2) invaluable
collection of Roman Dutch Law books reposed at the Colombo Law library has
carved a niché in the annals of the legal heritage in the country. Amongst them
Roman Dutch Law Jurist Van der Keessel’s [plate1] manuscript Dictata ad Grotii Introductionem (3) (figure 1) and the
interleaved Grotious with Van der Keessel’s manuscript notes claims the unique
pride of place in this rich legacy.
I discovered this Mss
in 1999 at the Colombo Law Library which is in two volumes. It was bound later
entitled as Institua Vanderkeesel compact
with the information cited below :
Volume I P 1 (figure
2)-P634 (figure 3) 16cmX20.5cm-Accession No.6598
Volume II P 635
figure 4)-P1116(figure 5) 16 cmX20.5cm-Accession No.6534
Dionysius Godtfried
Van der Keessel (4) (1738-1818) is a highly esteemed Roman Dutch Law
Jurist of the 18th century. He was a Professor of law at Leiden. He
is regarded as the last of the really great Dutch exponents of the Roman Dutch
Law. His important works are the These
Selectae Juris Hollandice et Zelandici, ad supplendam Hugonis Grotti
Introductionem as jurisprudentiam Hollandicam, published in Leiden in 1800 (5),
(collection of notes on Grotius Institutes) and Dictata ad Grotii Introductionem (Introduction of the Grotius Dictata) which is said to have been in
accordance with his wishes never published. It is said to be in six volumes. (6)
South African
Professors H. R. Hahlo and Ellison Kahn in their authoritative work entitled
“The South African Legal System and its historical background” states that
These Selectae ‘is likely to become over shadowed by Van der Keesel’s lectures
or Dictata, based on Grotius Inleiding, delivered at Leiden University from
1793 to 1806, the ‘These Selectae’ being a partial epitome of the course as it
was given in 1800’ (7).
Lorenz has had the
rare distinction of being a student under this esteemed Dutch jurist. Lorenz in
his Translator’s Preface to the first edition also has stated that “I am,
perhaps, the only survivor of his pupils, during the years 1814-1816, studied
the Institutes of the Roman Law under him, and being presented by him to the
Praetorship of the University.” (8)
By Lorenz’s own
Translators Preface it appears what Professor Hahlo and Kahn states is
erroneous and that Van der Keesel has been a lecturer in the University of
Leiden in the years of 1814 - 16.
Prof. R. W. Lee, one
of the greatest Roman Dutch Law authorities of the latter part of the century,
has observed in 1912 in his “Introduction to Roman Dutch Law” about this
manuscript as follows :
“That the Dictata to which the author of These expanded and supported them
still circulate in manuscript, but have never been printed. There is a
manuscript copy in the University of Leyden at Leyden corrected in Van der
Keessel’s own hand. I am told that the authors own manuscript is in the Bar
Library at Colombo. A typewritten copy of the Leyden manuscript was
presented to the Supreme Court Leyden at Cape Town by the late Dr. C. H. Van
Zyl”. (9)
(emphasis
is added)
Lorenz in his
Translators Preface (10) to the first edition of the Thees Seletae, written in Amsterdam, 19th
December 1854, provides us a detailed account on this manuscript Lorenz in this
preface had stated that he has seen several copies of the Vander Keesel’s
Dictata ad Grotii Introductionem which were the lectures delivered by him at
the University of Leiden. Lorenz categorically explained where he has proposed
to treat in the printed Theses: On such points which were omitted by Grotius,
or since then have undergone alternations, or become subjects of controversy
where through his oral lectures he has sought to explain certain points of the
text or in certain instances where Dictata contributes for the fuller
development of the Theses. Lorenz also has stated that then these Mss copies
were not numerous and as it was also never published, also there was only a
fair demand existed since 1806 for ancient laws as they mainly belonged to
private collectors who knew the great value of it or due to their streamline of
academic studies at the University which enabled them to provide themselves with
such copies. Lorenz has added that, “the translator (himself) has not hitherto
being able to become the possessor of one.” Lorenz through Professor De Wal, of
Leiden has taken full extracts of the most salient portions as an Appendix or
as a supplement for a later edition incorporation them with comments of
Professor Schorer on the text of Grotius.
Lorenz states thus ;
“The
original MS of the Dictata, bequeathed
by the author to the public Library of Leyden, still exists there, and is readily produced to students who may be
desirous of consulting it. It is a valuable work, and contains very full
comments on almost every point of any importance in law; and in fact
constitutes in itself a complete treatise on the law of Holland up to the year
1800.”
(emphasis
is added)
In
his preface to the second edition in 1868, (11) Lorenz attaches the
following footnote to the above paragraph in the first edition thus:
“The
Translator was so fortunate to become the possessor, in 1855, of the
Author’s copy of the these Dictata together
with his annotated copy of Grotius, and a collection of Addresses and Prayers
with which he appears to have inaugurated or closed his annual lectures.”
(emphasis is added)
Therefore,
it is evident by Lorenz’s own account found in the first edition that the
Lorenz’s copy of the Dictata is not the original manuscript of Van der Keesel’s
Dictata, but it is Van der Keessel’s own manuscript used by him at his
lectures. Also it seems that Lorenz did not possess this author’s own copy when
he published the first edition of These
Selectae.
Lorenz
prematurely died on 9th August, 1871 Lorenz has had bequeathed the Dictata ad Grotti Introductionem manuscript
by his Last Will No. 1992 dated 13th April 1871, attested by James
Adriannis Martensz, Notary Public of Colombo, which stated, thus:
“The
Van der Keessel’s manuscripts and the interleaved Grotius, with Van der
Keessel’s manuscript notes, I desire to be sent to my friend Professor G.
W. de Vreede or some other professor thereto, to be presented to the University
Library at Utrecht.” (12)
(emphasis is added)
It
is a apparent that Lorenz’s executrix Elzia Juliet La Brooy could not keep to
his last wishes in his Last Will. (13)
The
“Vetus” (14) of the Ceylon Law Recorder in 1924(15) has
stated as follows: “Among the treasures of the Law Library are a very large
collection of Roman Dutch Law Books the gift of that eminent lawyer Mr. C. A. Lorenz.
Lorenz spent about a year in Holland and succeeded in getting together a unique
collection of books in Latin and Dutch numbering over 250 volumes. Among the
books is Van der Keessel’s Dictata a
manuscript in the handwriting of Van der Keessel himself. This was lent to the
Corpus Christie College library for reference and was carried thereto Sir Anton
Bertram(16) himself. It has been valued at £100…………”
When
one considers the manuscript records cited below one will find that there are
three manuscripts in the worls, They are :
(a)
The original
Mss Dictata bequeathed by Van de Keessel to the Public Library of Leiden.
(b)
Mss copy at
University of Leiden corrected by Van de Keessel in his own hand.
(c)
Mss (author’s
copy) at the Colombo Law Library.
Professors
Hahlo and Kahn’s authoritative work states, “thanks to the devoted work of
Professors P. van. Warmelo, L.I. Coertze, H.L. Gonin and D. Pont all presently
or formerly of the University of Pretoria, the Dictata have now been made
available to the Public in Latin and Afrikaans, under the title Praelectiones iuris bodierni ad Hugonis
Grotii Introductionem and Jurisprudentiam Hollandicam(17)
confounding the late Professor R. W. Lee’s prediction that they would probably
never be published.(18)”
It
is not clear as to what manuscript was used in the translation of the lecturers
or Dictata by the above stated South
African Professors. Also it is not apparent whether Van der Keessel made a
direction prohibiting a complete publication of the Dictata by his Last Will.
It is evident from the Translator’s preface to the first edition of These in
1854 even Lorenz has used it in limited instances.
Professors
Hahlo’s and Kahn’s concluding observations are very pertinent to ascertain the
value of Dictata as a source of law. Thus, “In his lectures,(19) Van
der Keessel, though he professed to give a commentary on Grotius, in fact
depicted the law of his own time, amply authenticated by authorities. While the
publication should not be over estimated as a work of the highest standing on
Roman Dutch Law - fundamentally it consists of lectures to students and does
not have the depth of say, Veot-nevertheless it is valuable as an exposition of
that legal system at the latest stage of its development in the Netherlands by
a lawyer of ability.”(20)
END NOTES
1.
Colombo Law
Library established in 1855 was originally known as the Law Library Hulftsdorp.
The library is exclusively used by the legal fraternity. The earliest reference
to the library is found in a letter sent by C. A. Lorenz to his brother in law
John Drieberg. (vide: Infra 2) (These letters are reproduced in Illustrated
Literary Supplement to “The Examiner” from 1875-1876, 2nd April 1975
- January 1876 volume 1-2) and is found in the “Lorenz Collection” of the Royal
Asiatic Society, Sri Lanka. (vide : 928.930 LOR2 R.5274). “Lorenz Collection”
was purchased from Guy O. Grenier by the Society for a sum of Rs. 2,000.00 from
a generous donation granted by the Asia Foundation and was received by the
Society on 21st June, 1966 (vide Annual Report of the Society for
1965 dated 5th November, 1966 by P. R. Sittampalam ad K.M.W.
Kuruppu). The letter reads as follows:
1 Victoria Road,
Kensington
July 19th 1853
My Dear
Brother(i),
Tell R. M.(ii)
that if he intends to set up the Law Library at all, nows’ the time, law books
are selling dearth cheap. I have a catalogue now with me of books on sale at
ridiculous low prices. I shall try to send it up to him by his mail. Do try and
get it up. There is no use waiting for Judges promise about the certificate money
etc. If you can collect a L 100 or 150 to begin with, I could send you a most
splendid collection.
(i)
Lorenz
addresses his brother in law John Drieberg (1809-1864) as his brother. Drieberg
was the leading conveyance in his time.
(ii)
R. M. is
Richard Morgan who was later a Judge of the Supreme Court.
Situge
Hemantha : The Origins of the Colombo Law Library (in press)
2.
Charles
Ambrose, Lorenz (1829-1871) a lawyer, an academic, a politician an editor, a
linguist, a poet, an artist and a musician who was known as the “Morning Star
of Hulftsdorp.” Lorenz made a noteworthy contribution to the scholarship of
Roman Dutch Law. He authored an introduction to Roman Dutch Law (1855) Treatise
on Namptissement (Provincial Payment) (1856), Notes on Civil Practice under the
Roman Dutch Law Colombo (1860) Justice James Van Lanberg’s copy is found at the
Law College Library. His valuable series of Law Reports covered the period 1856
to 1859 which caused him to be called “Father of Ceylon Law Reporting”.
In 1855,
Lorenz translated Van der Keessel’s “Select
Theses on the Laws of Holland and Zeeland”. In 1868 a second revised
edition of the same book was published in Cape Town by Prof. J. De Wal of
Leyden. A third edition (1901) has been published in Cape Town. A portrait of
Lorenz drawn by George de Niese, was unveiled at Law Library Colombo on
09.07.1929 by Chief Justice Stanley Fisher for the Lorenz centenary.
Also, Vide: at
P 300-5, Amarasinghe A. R. B. - “Supreme Court of Sri Lanka - First 185 years”
Sarvodaya Books Publishing Services. 1986.
A marble bust
was donated to the Royal Asiatic Society (Sri Lanka) Library in 1966.
3.
Hugo Grotius
(1583-1645) Grotius is regarded as one of the greatest Roman-Dutch jurist and
his book Introduction to the Roman Dutch Jurisprudence of Holland (Inleiding tot de Hollandsche
Rechtsgeleestbeyd) is regarded as the beginning of the system of
Roman-Dutch Law. On this work Grotius treated the Jurisprudence of Holland as a
living system of law and proceeded to explain it scientifically and methodically
………………. at P52 Cooray L. J. M. An Introduction to the Legal System, Colombo
1992. Also vide: Knight W. S. M., The Life and Works of Hugo Grotius, Sweet and
Maxwell London 1925.
4.
at P 251,
Nadaraja T. Legal System and its historical setting, Leiden 1972 considered as
authorities in Sri Lanka Courts.
De Wal J. A
biographical notice of Dionysius Godtfried , Van der Keessel, The Legal
Miscellany 150-157, 1865.
5.
at P 101,
Ludovici Leopold - Memoir of Lorenz, Ceylon Quarterly Magazine (P89-113) Sep
1871, Cf. at P 559 Hahlo and Khan South Africa 1968.
6.
ibid
7.
at P 559 South
Africa 1968.
8.
at P(vii) 1st
edition, London, 1855.
9.
at P 16-7, Lee
R.W., 1st edition, Oxford 1912.
10.
at P vii-vii 1st
edition, London, 1855.
11.
at P vii 2nd
edition, Cape Town 1868.
12.
Classification
No. 928 LOR Accession No. 005365 Last Will and Estate of Lorenz ca 40 leaves
Mss (“Lorenz Collection” at the library of the Royal Asiatic Society Sri Lanka)
13.
Lorenz’s
Testamentary case No. 3663 in the District Court of Colombo has been concluded
on 28th September 1871. ibid.
14.
The
nom-de-plume “Vetus” is used by J.R. Weinman Advocate, vide: Weinman’s articles
“Lorenz Collection” of the Royal Asiatic Society Library, Classification No.
920-954 WE1 and Accession No. 5270. Vide: Amarasinghe A.R.B. - Supra 1, P330-1
for a short biographical account on Weinman.
15.
P xxxi-xxxiii
The Law Library, Ceylon Law Recorder Volume V Part XII 1924 Private Law Reports
published in between 1918-1948 in Sri Lanka.
16.
(Foot Note is added.)
Chief Justice of Sri Lanka (1919-1925) vide Amarasinghe, Supra 1, P 186-9.
17.
(Foot Note number is added) Foot notes of Professors Hahlo and Kahn foot note
No. 74 at P 559 vide Supra 6.
5 vols, Cape Town, 1961-7. For the
problems involved see P. van Warmelo in (1955) 23 Tijdscbrift voor Recbtsgescbiedenis 452. On the wanderings of Van
der Keessel’s actual lecture notes on which the new publication is based (in
those days lectuers actually dictated their lectures), see P.J. Verdam in
(1958) 21 T.H.T.H.R. 1. The work is reviewed by Professor E. Kahn in (1961) 78
S.A.L.J. 460 and (1967) 84 S.A.L.LJ. 378, by Professor J.E. Scholtens in (1964)
32 Tijdscbrift voor Rechtsgescbiedenis 623
and by Professor Wouter de Vos in Acta
Juridica, 1961, p. 174, 1963, p. 203m 1964, p. 211; and 1965-6, p.337.
Professor B.Benart, B. L. Hijmans,
Jr., and P. van Warmelo have now also published Van de Keesel Dictata and Justiniani Institutionum libros quattour (2
vols, 1965, reviewed by Professor Wouter de Vos in Acta Juridica, 1965-6, p. 332)
18.
(Foot Note number is added) Foot note of
Professors Halho and Kahn’s Number 75 ibid.
Preface to his Commentary to Grotius, p. vii. The original Latin version of the
Dictata, Theses 26-44 (add Gr. 1.2.27) was published by E.M. Meijers in Tractatus duo de vi et potestate statutorum (Haarlem,
1939).
Another incorrect prophecy was that of
Professor Melius de Villiers in his inaugural lecture, Het Oud-Hollandsch recbt in Zuid-Adrika (Leiden, 1905), p.17, viz.
that the Dictata, which had been made
available by the Senate of the University of Leiden to the South African court,
would be translated into English to be of use to them.
19.
at P.559,
Supra 7
20.
at P. 560 ibid
Acknowledgements
Former Secretary and
Treasurer of the Colombo Law Library G. Ajantha Coorey permitted me to copy the
figure 1 to 5 of the Mss for publication.
Justice A. R. B.
Amerasinghe during my decade of tenure as a volunteer Research Assistant to
update the “Supreme Court of Sri Lanka” book perused an earlier draft on this
article and for his comments.
Dr. Sunil F. A.
Coorey Senior Counsel, subsequently went through the final draft and commented
on my paper. However I am alone responsible for any errors. inelegancies and
inaccuracies that would have seeped in for the final publication.
Finally, I dedicate
this research paper to the memory of late L. C. Seneviratne P.C. my guru and
mentor where I ‘devilled’ in his chambers for well over a decade as a token of
memory for his guidance and for inculcating good values in me.
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