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.
RIGHT HON. SIR J. GORDON SPRIGG, K.C.M.G.,
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.