South Africa and the Transvaal War, Vol. 8 (of 8): South Africa and Its Future — John Shaqi
South Africa and the Transvaal War, Vol. 8 (of 8): South Africa and Its Future
History
South Africa and the Transvaal War, Vol. 8 (of 8): South Africa and Its Future
South African War, 1899-1902; Transvaal (South Africa) -- History
The tribunals of the Empire constitute a museum of former systems of
law, flourishing far from their parent springs. But every change is not
necessarily progress. The marked liking of British colonists, born in
the United Kingdom, for the Roman Law under whose sway they have passed
is a very instructive phenomenon. Wisdom, they seem to think, did not
die with the fashioners of that "codeless myriad of precedents, that
wilderness of single instances" which, evolved according to
imperturbable theory from the bosom of the English judiciary, is known
as the Law of England.
This preference is the more impressive, seeing that on many vital
matters, not mere abstractions of jurisprudence, the Roman Dutch Law
differs from the English systemless system.
The personal status of all residents in the new British Colonies falls
under rules quite different from the English rules as to capacity to
enter into and to perform contracts, as to property rights, and as to
family relations. Results of some importance may chiefly be expected
from the fact that, since the annexation and the transformation of the
Republics into British Colonies, the presumption in law that British
immigrants intend to adopt a new domicile, and subject themselves and
their property to a new legal system, must necessarily be stronger than
when residence was being taken up in the territory, then foreign, of two
Boer Republics. In the future, not alone, as hitherto, contracts of
service and contracts as regards property, but the relationship,
personal and as affecting property, of marriage and succession, will
fall under the jurisdiction of a High Court administering primarily the
Law of Rome. The Court will apply the Law of England to those latter
conditions only in cases in which they consider that, in accordance with
the principles of Private International Law, the English system is
applicable--the presumption now being that, as a general rule, it is not
applicable.
[Illustration: Photo: Russell, London.
RIGHT HON. SIR J. GORDON SPRIGG, K.C.M.G.,
Prime Minister of Cape Colony.]
As regards the capacity of adults to enter into and be bound by
contract, the most striking difference between the English and Roman
Dutch systems is the survival, under the latter, of a modified form of
the Roman Interdiction of the Prodigal. Under certain circumstances, on
application of friends or relatives, such an order can issue. Again,
contracts of service made out of South Africa are not binding unless
entered into again before a public official in South Africa.
Public-domain text, read in full here on John Shaqi.
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