Robert Warden Lee

“ The system of law thus described is that which obtained in the province of Holland during the existence of the Republic of the United Netherlands. Its main principles were carried by the Dutch into their settlements in the East and West Indies; and when some of these, namely the Cape of Good Hope, Ceylon, and part of Guiana, at the end of the eighteenth and the beginning of the nineteenth century, passed under the dominion of the Crown of Great Britain, the old law was retained as the common law of the territories which now became British colonies. ”

“ There are those who regard Grotius, Van Leeuwen, Voet, and the other romanists as traitors to the law of their country, which, it is inferred, they enslaved to an alien system. So far as the issue is purely historical the present writer does not offer an opinion. For the lawyer, he submits, the question is not what the law was when these jurists wrote, but what it was when they had written. In the history of institutions it is sometimes more important to know what was thought to be true than to know what was true in fact. ”

“ Roman-Dutch Law may be seldom quoted in the Courts and even then with little hope of the quotation seriously affecting the issue. English authorities and precedents may tend more and more to have weight with judges and lawyers to its exclusion. But it remains as an element of uncertainty. We have all the disadvantage of a mixed system without the elasticity of the Roman-Dutch jurisprudence.’
‘It increases the work of both judge and counsel. It wastes time and is a source of expense. In this country it is not a living system. ”

“ The ante-nuptial pact which creates it is, at all events, binding upon the spouses. If made by third parties to either spouse, or by the wife to the husband, or by the husband so as to confer rights on the issue of the marriage, it would by the Dutch common law be good against creditors. But when a husband made a gift or promised a douarie to his wife the law was otherwise ; for by express statutory enactment her claim in this regard was only allowed to take effect when her husband's creditors had been fully satisfied. ”

“ At all events, no one disputes the fact of the reception of the Roman Law. What is questioned is the degree to which the reception went. For our part, we shall be content to accept the dictum of Van der Linden: ‘In order to answer the question what is the law in such and such a case we must first inquire whether any general law of the land or local ordinance (plaatselijke keur) having the force of law or any well-established custom can be found affecting it. ”

“ Van der Linden says that some persons are prohibited from being guardians; others may excuse themselves. [42] To the first class he assigns: (1) persons who are themselves subject to tutela or cura, [43] with whom must be included all persons less than twenty-five years of age, although majority may have been anticipated by marriage or venia aetatis; [44] (2) women, except a mother and grandmother, and they only so long as they have not contracted a second marriage; [45] (3) creditors and debtors of the minor, if the debt is considerable and the Court sees fit to exclude them. ”

“ Voet adds that if a minor seeks to enforce a contract made by him without his tutor's authority, he may do so only on condition that he himself performs his part. [30] He further points out that an unassisted contract of a minor always creates a natural obligation, and therefore supports the collateral undertaking of a surety, provided that the minor be upwards of seven years of age. But, contrary to the rule usually applicable to such obligations, the natural obligation of a minor does not preclude the condictio indebiti. ”

“ When the spouses have by ante-nuptial contract provided that some third person or persons shall succeed to the several shares on the dissolution of the marriage, both spouses by mutual will or a surviving spouse by his or her separate will may freely depart from this agreement. A joint will is in fact merely two wills of two persons disposing of two estates. ”

“ The statutory penalty does not attach the spouse who is a minorWith regard, more particularly, to the statutory penalty, it must be noticed that it attaches only to the person of full age of either sex who inveigles a minor of the other sex into marriage. Such person is not allowed to take any benefit from the property of the minor spouse, whether present or future, whether by gift, legacy, inheritance, or in what way soever. ”

“ The creditors may, if they please, recover the whole of their claim from the husband ; in which case he has the right of recourse against his wife to the extent of half. They may also, if they choose, after the husband's death recover one-half,* but not more, directly from the wife. If during the marriage the husband has apphed his wife's property in paying his own ante-nuptial debts, the money so applied constitutes as between the spouses a first charge * upon the net balance, if any, of profits over losses ”

“ Eene moeder maakt geen bastaard. A bastard has no lawful father and therefore no rights of succession ex parte paterna. But with the mother it is different; for ‘eene moeder maakt geen bastaard’, and therefore her illegitimate issue succeeds to her and to her blood relations. [20] Such was the opinion of Grotius, though, as regards these last, Van der Linden inclines to a contrary view. [21]
Legitimation. Illegitimate issue may be legitimated: (1) by subsequent marriage ”

“ The mother likewise is liable, together with the father during his lifetime, and solely after his death. The mother of illegitimate children is liable for their support. [9] In case of divorce, both parents may be required to maintain the children according to their means. [10] The obligation of support ceases if the children are able by their industry or from their own means to support themselves. [11] The duty is reciprocal. Children must maintain their parents, [12] and if they are minors or lunatic the Court may charge the cost of maintenance upon their estate. ”

“ But in South Africa, by the Administration of Estates Act, 1913, sec. 71 (re-enacting and amending Cape Ord. No. 105, 1833, sec. 1) : ‘It shall not be lawful for any person except— (a) the father of a minor; or (b) the mother of a minor whose father is dead or has abandoned the minor; or (c) the mother of a minor to whom the custody of such minor has been given by a competent Court; by any will or other deed to nominate any tutor or tutors to administer and manage the estate or to take care of the person of such minor.’ This is without prejudice to the right to appoint a curator nominate. ”

“ Between cousins of whom the father of the one is brother of the mother of the other and at the same time the mother of the one is sister of the father of the other by birth legitimate or illegitimate. Sec. 2. No marriage shall be deemed unlawful by reason only that the persons contracting such marriage are related to one another in any B. Consent of parents.
B. Consent of parents. In the oldest Germanic law the consent not alone of parents but also of other near relatives, was a necessary, or at all events usual, preliminary of marriage. ”

“ A father may represent his son in Court [31] and sue and defend in his name, but if he does so without leave from the Court he will be personally answerable for costs, if the suit proves unsuccessful. [32]
3. Consent to marriage of minor children; 3. Consent to marriage of minor children. The consent of parents is necessary to the marriage of minor children, [33] and without it the marriage is null and void. [34] Consent may be either express or implied. It is implied if the father knows that the marriage of the minor is about to take place and does not forbid it. ”

“ Inventory. Guardians must make a full inventory of the estate which they are to administer, or demand an inventory from a surviving parent. [53] In South Africa every tutor and every curator must make such inventory within thirty days [54] of the date of his entering on office. If a guardian fails herein, he is liable (besides other penalties) [55] to removal; as he is, also, if he wilfully omits items of credit or inserts false items of debit. [56] A surviving parent who, in preparing the inventory, fraudulently conceals any property forfeits his or her interest therein. ”

“ It consists in a general supervision of the maintenance and education of their children and in the administration of their property. It gives the parents the right of demanding from their children due reverence and obedience to their orders, and also in case of improper behaviour to inflict such moderate chastisement as may tend to improvement. Parents may not be sued by their children without leave of the Court, termed venia agendi. [16] No marriage can be contracted by children without the consent of their parents. ”

“ But if the husband can prove sexual relations before marriage unknown to him followed by pregnancy and not condoned by cohabitation subsequent to his discovery of them, he is entitled to have the marriage declared null and void. [11] The uncorroborated evidence of a married woman is not permitted to bastardize her own child. [12] To prevent difficult questions as to paternity, the Dutch Law, following the Civil Law, [13] prohibited remarriage within a certain time after a first husband's death. [14] Annus luctus. This was called the widow's ‘annus luctus’ ”

“ If she claims to benefit financially by the marriage, she must also take her full share in its burdens. In order to secure her property against creditors it is necessary that she should be content to keep her estate entirely distinct from that of her husband. ”

“ No attempt will be made to keep these topics rigidly distinct. The method adopted will be to trace the legal life-history of human beings from conception to the grave, and to see how their rights and duties are affected by certain conditions or accidents of human life, such as birth, minority, marriage, mental disease. ”

“ Custom, however, seems to have made short work with the pre-British statute law of the Colony. The earliest collected edition of the local statutes (1862) contains only nine enactments prior to 1795, and the latest edition (1895) only five. The remainder of the Dutch placaaten, reglementen, advertissementen, &c. (whether emanating from the home country or from Batavia, or locally enacted) seems to have been abrogated by disuse. We are speaking, of course, of the statute law subsequent to 1652, the date of the Dutch occupation of the Cape. ”

“ MARRIAGE 77 the Churches or from the Council-House or other places where justice is administered, on three successive Sundays or Market Days : which banns shall be granted and made to the end that any one who wishes to advance any let or hindrance, whether of blood, affinity or pre-contract of marriage, by reason of which the marriage should not go forward, may do so.' If no such let or hindrance was alleged, the marriage was shortly afterwards celebrated by a minister of rehgion or by the magistrate. ”

“ If the child is so young that he does not know what he is about, he is absolutely incapable of contracting at all with or without assistance, for, as Van Leeuwen says: ‘All obligations must arise out of a free and full exercise of the will. ”

“ Green, ubi sup. at p. 472, legitimation by subsequent marriage presupposes that marriage could have taken place between the parents at the time of the birth of the child. But Voet allows legitimation if marriage within prohibited degrees is afterwards contracted with the necessary dispensation in cases where dispensation is permitted by law. In Ceylon illegitimate children are legitimated by subsequent marriage unless procreated in adultery. ”

“ The colonists have no sentimental affection for any legal legacy of the Batavian Republic of 1803 or the Kingdom of the Netherlands of 1814. Our population is a small one, very mixed in race. East Indians and Portuguese make up some fifty per cent.; and natives of the West Indian Islands form no small proportion of the balance. Mixed as it is, it is overwhelmingly British in its attachments, traditions, and sympathies.’
in Ceylon. In Ceylon, if the Roman-Dutch Law is not so firmly established as it is in South Africa, yet it is not, as in British Guiana, in danger of immediate extinction. ”

“ A surviving parent may not under any circumstances proceed to a second marriage, without first assigning to the minor children of the first marriage their proper shares in the joint estate [62] , or at all events giving security for their future payment. In South Africa this security takes the form of a notarial general mortgage-bond passed by the surviving spouse. ”

“ When the question relates to property brought into the marriage by the spouses, and the ante-nuptial contract has provided for mutual succession, or at all events for the succession of one to the other, alteration or revocation by will is permitted, but it must be Only by mutual will. ”

“ No distinction can reasonably be drawn between a minor whose parents are alive and one whose parents are dead. As regards contractual capacity, they are in exactly the same position. V. d. K. Th. 474; Dictat. ad Gr. 3. 1. 26; Holl. Cons., vol. vi, pt. 2, no. 30. Van der Keessel rightly dissents from the view of Groenewegen (de leg. abr. ad Cod. 4. 26. 2) and Voet (14. 5. 4) that minors above the age of puberty whose parents are alive are bound by their contracts until relieved by restitutio in integrum. ”

“ In this case it was held that deceased's estate being more than sufficient to pay for the support and maintenance, according to their condition in life, of his legitimate children, it was competent for the Court to award to the mother of his illegitimate children as their natural guardian, such sum as would enable her to supply them with the means of subsistence, until they were old enough to earn it for themselves. ”

“ His expenditure must be such as is demanded by the interest and credit of the minor, regard being had to the value of the estate and the minor's position in life. [69] He must preserve and secure the property, [70] call in and enforce debts, [71] invest in good securities, [72] and meet the minor's liabilities as they fall due. When the guardianship comes to an end, the guardian must properly wind up the business of his office, and is deemed to remain guardian for the purpose. [73] Where there are more guardians than one, it is not necessary that they should all act ”