Sustaining Sovereignty through Law at the Cape Colony, 1795–1803

Abstract

The first British occupation of the Cape, 1795–1803, involved a military invasion that overthrew the erstwhile Dutch East India Company and set about erecting a new colonial political order. Reflecting the socio-political upheaval that ensued, unique archival documents suggest how colonial law provided procedures, an argot, and punishment practices that generated and sustained lasting images of sovereignty in context. In efforts to grasp the complex symbiotic alliances that enabled Cape colonial sovereignty and law to surface, this paper examines several texts that highlight the interactions through which colonial law declared, enforced, and summoned a colonial politics of sovereign power. In turn, this sovereignty politics yielded ethical images of justice and justifications for punishment that persist, even if in altered form, through postcolonial horizons. Understanding that colonial legacy could, therefore, be deeply consequential for continuing ethical debates about the justice of sovereigns, laws and punishments through which governance is nowadays calculated.

Keywords:

• colonial law
• colonial sovereignty
• law and the cape colony
• colonial state formation
• the politics of colonial law
• cape court of justice

Notes

¹ The Instructions further insisted that “… Justice be everywhere speedily and duly administered, and that all disorders delays and other undue practices, in the administration thereof, be effectually prevented” and that “you take especial care, that in all Courts established within the said Settlement, Justice be impartially administered, and that all Judges and other persons therein concerned do likewise perform their several Duties without Delay or partiality” (in Theal, 1898, vol. 2, p. 12)

² In particular, the 5^th Instruction to Macartney noted that “Whereas it has been represented to Us, That the practice of proceeding by Torture against persons suspected of Crimes, by breaking upon the Wheel and other barbarous modes of Execution, prevails in the Settlement, It is Our Will and Pleasure that you should wholly abolish these forms of Trail and Punishment, and provide other more lenient and equitable proceedings, which is left to your Judgment and Discretion to establish and enforce in the said Settlement” (Theal, 1898, Vol. 2, p. 6). See also Barrow 1807.

³ This section relies on a reading of Worden and Groenewald's (2005) excellent description of these processes (p. xxiii–xxiv).

⁴ The following case and all references refer to a primary text, Cornelis Edeman, (1800). Western Province Archive, Cape Town. CJ 798. p. 271–282.