Martial Law and the Rule of Law in the Eastern Cape, 1830–1880

In 1814, the Cape Colony was ceded by the Dutch to the British. The territory extended as far as the Great Fish River to the east and the Koussie River to the north. This land was home to approximately 60,000 people, of whom 27,000 were white descendants of Dutch and Huguenot settlers, and 17,000 indigenous Khoi, or ‘Hottentot’ people. For much of the nineteenth century, the border of the Cape colony was unsettled, as a series of ‘frontier wars’ was fought between the colonists and the Xhosa, which would ultimately lead to the subjection of the Africans and their incorporation into the empire. Martial law was declared in the Eastern Cape during these wars in 1835, 1846, 1850 and 1877. These periods of war and rebellion saw many people being detained either as prisoners of war or as rebels, and many more imprisoned after briefs trials in martial law courts. The Cape frontier would give the Colonial Office its first African experience of imprisonment in times of emergency. The wars here would raise questions about the nature of martial law and its relationship with ordinary civilian law. They would also raise questions about how far any idea of the rule of law would act as a constraint on official policy. The Cape Colony was a settler colony, with an established judicial system. The Roman-Dutch law brought by the original settlers was the law applied by a Supreme Court constituted under royal charter in 1827 to succeed an earlier court of justice in the Cape. The new court, which used a common law judicial and procedural framework, was open to those who had been advocates in the preceding court, and to