Though to indicate in general terms the nature of the Roman-Dutch Law is a matter of no great difficulty, precisely to define its extent in time or space is not so easy. Its origin, Derived from the two sources of Germanic Custom and Roman Law, the Roman-Dutch Law may be said to have existed, so soon as the former of these incorporated elements derived from the latter. Undoubtedly such a process was at work from very early times. Long before the Corpus Juris of Justinian had been ‘received’ in Germany, the Codex Theodosianus (A. D. 438) had left its mark upon the tribal customs of the country now comprised within the limits of the kingdoms of Holland and Belgium.[1] and development. Later, the various influences of the Frankish Monarchy and of the Church and Canon Law[2] forged fresh links between Rome and Germany. The general reception of the Roman Law into Germany and Holland in the fifteenth and sixteenth centuries completed a process, which in various ways and through various channels had been at work for upwards of a thousand years.[3]
For many centuries after the dissolution of the Frankish Empire there was no general legislation. Under the rule- ↑ Van de Spiegel, Verhandeling over den Oorsprong en de Historie der Vaderlandsche Rechten, pp. 73–4.
- ↑ Ibid. p. 110. For some remarks on the part played by the Canon Law in the formation of the mature system of R.-D. L. see Kotzé, S. A. L. J., vol. xxvi, pp. 510 ff.
- ↑ Mr. Justice Kotzé says (S. A. L. J., vol. xxvi, p. 492) : ‘There is, no doubt, a good deal of what is true in this speculation of Van de Spiegel that Germanic and Frankish laws and customs formed the basis or component parts of the law under the early Dutch Counts; but there is a lack of historical evidence to show that the Roman Law ever had any influence in the Northern Netherlands during the Frankish régime, or that, in the period from the eleventh to the fifteenth century, it was adopted and relied on by the ordinary tribunals throughout the country. The opposite view to this is the more correct.’ This very learned writer accepts Bynkershoek's view: Ego vix putem aliquam in Hollandia Juris Romani fuisse auctoritatem ante Carolum Audacem (Observationes Juris Romani, in praefat.). And again (p. 497): ‘Although the Roman Law was known in various ways before the time of Charles the Bold, it is clear that Bynkershoek is correct when he says that it first received authoritative and legislative recognition in 1462 (Instructie voor den Stadthouder ende Luyden van de Kamer van den Rade, Art. 42, 3 G. P. B. 635) from that Prince’ (S. A. L. J., vol. xxvi, p. 497). On the other hand, Mr. Justice Wessels (History of the Roman-Dutch Law) supports the view expressed in the text.
