LAW AND LANGUAGE
By Mr. M. J. FARRELLY, LL.D.
Barrister-at-Law; Advocate of the Supreme Court of Cape Colony
I.—THE ROMAN DUTCH LAW AND THE LAW OF ENGLAND
The Roman Dutch Law—the body of legal principles and enactments codified under the later Roman Empire by the Emperor Justinian, as modified by legislation of the States-General and decisions of the tribunals of Holland up to the end of the eighteenth century—the date of the British occupation of Cape Colony—constitutes the Common Law of all British South Africa from the Zambesi to the sea. Indeed its sway stretches farther north, if we include the province of Northern Rhodesia.
The recent annexation to the Empire of the territories of the two Boer Republics must necessarily have many effects not alone in the sphere of politics, but also in that of law. But no unsettling of the general principles of private law, regulating the rights and duties of the citizens in private relations, can be the result. The invariable practice of the Imperial Government—the only possible one to prevent inextricable confusion of personal status and property rights—has always been to enforce, as the unaltered law of the land, any system of European Law already in operation in territories annexed or ceded to the Empire, being already a portion of the dominion of any State of the European Family of Nations. In this respect the Imperial Government but follows the general practice of other European States: a practice so uniform that it may almost be regarded as a portion of the Law of Nations, of that custom of the European race which for a century we are accustomed to speak of as International Law. The committee of the Privy Council, which, as regards the Empire outside of Europe, may be viewed as the Imperial Court of Appeal, has therefore to adjudicate on systems of law more numerous than these that come before any other tribunal in the world. Not alone questions to be determined under the Common Law of England, but suits to be decided under that law, as modified by the legislation of the self-governing Colonies, come under the cognisance of that unique tribunal. From the Channel Islands, whose people boast that they were never conquered by England, are heard appeals, based on the Grand Coutumier de Normandie, unknown in France since the French Revolution. The French Law of Lower Canada, still administered under British authority, is lifeless and unknown in the Paris which gave it birth. Similarly the Roman Dutch Law of the United Provinces, now enforced in the former over-sea possessions of Holland, has long ago been swept away in Low Countries, surviving as the law of the land only in the British possessions, in South America, in Ceylon, and in South Africa. With one result, arresting the attention of the historical student, that in our own day British tribunals accept, as of the highest authority—in many matters most vitally affecting the status and property of British citizens from the Lion’s Head to the Line, the recorded opinions of a Pretorian prefect of the Roman Empire in York—the brightest of the five stars of the Loi des Citations.
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.