In Onegt Verwekt: Law, Custom and Illegitimacy in Cape Town, 1800–1840
2005; Taylor & Francis; Volume: 31; Issue: 1 Linguagem: Inglês
10.1080/03057070500035844
ISSN1465-3893
Autores ResumoAbstract The first four decades of the nineteenth century were momentous for Cape Town, which passed from Dutch to British rule and from a long history as a slave society to one adjusting to emancipation. This article examines these years though the prism of out-of-wedlock births – an appropriate perspective on a society in which concubinage and casual sex were rife, and where (until late in that period) the men and women of the large slave population could not contract lawful marriages. Both church and state attempted to impose order and promote morality in the expanding colony of which Cape Town was the chief entrepôt and busy port. The churches exhorted members to observe Christian precepts, censured defaulters, and pressed government to enact and enforce measures deemed to be supportive of their aims. While the government was initially bound by the Statutes of India, as amended from time to time during the span of Dutch East India Company rule (1652 to 1795), the Roman-Dutch law of the Cape differed in some respects from British common law regarding, for example, marriage, inheritance and the legitimation of out-of-wedlock births. Hence, after Britain took control in 1806, following a period of transition, certain aspects of the law and justice system were made to conform more closely to British jurisprudence. The influx of Britons had a cumulative impact both on attitudes and social life, as did successive slavery edicts issued by the metropole. In seeking to contribute to the comparative history of illegitimacy, this study of a particular locality and period opens a society to view in a new way, and uncovers a pivotal moment of legal and attitudinal change in family and sexual relations. Notes * The Dutch phrase, ‘in onegt verwekt’ means ‘procreated out of wedlock’. Minnie Lewis made invaluable contributions to this article though her research in the Nederduitse Gereformeerde Kerk archives and her translations of documents from Dutch and Afrikaans. My thanks also to Pawel Stempowski for sharing his findings in the Cape Archives Repository and to Professor Sandra Burman, Director of the Centre for Socio-Legal Research, for helpful guidance. Professor Christopher Saunders's useful comments are greatly appreciated. The research was sponsored by the National Research Foundation and the University of Cape Town Research Committee, which we acknowledge with thanks. The views expressed in this work, and the conclusions drawn, are those of the author and should not be regarded as those of the sponsors. 1 P. Laslett, ‘Introduction: Comparing Illegitimacy over Time and between Cultures’, in P. Laslett, K. Oosterveen and R. M. Smith (eds), Bastardy and its Comparative History (London, Edward Arnold, 1980), p. 3. 2 For the roots of Roman Dutch and canon law with respect to bastards, see T. Kuehn, ‘A Late Medieval Conflict of Laws: Inheritance by Illegitimates in Ius Commune and Ius Proprium’, Law and History Review, 15, 2 (Fall 1997), pp. 243–274 passim. 3 S. Burman and E. Preston-Whyte, ‘Assessing Illegitimacy in South Africa’, in S. Burman and E. Preston-Whyte (eds), Questionable Issue, Illegitimacy in South Africa (Cape Town, Oxford University Press, 1992), pp. xi–xii. 4 D. Chidester, ‘The Politics of Exclusion: Christian Images of Illegitimacy’, in Burman and Preston-Whyte (eds), Questionable Issue, p. 164. 5 R. C-H. Shell, Children of Bondage, A Social History of the Slave Society at the Cape of Good Hope, 1652–1838 (Johannesburg, Witwatersrand University Press, 2001), pp. 296, 320–324; P. Scully, Liberating the Family? Gender and British Slave Emancipation in the Rural Western Cape, South Africa, 1823–1853 (Portsmouth NH, Heinemann, 1997), pp. 34–46. For the negative environment respecting legitimating rites and practices, see R. Elphick and R. Shell, ‘Intergroup Relations: Khoikhoi, Settlers, Slaves and Free Blacks, 1652–1795’, in R. Elphick and H. Giliomee (eds), The Shaping of South African Society, 1652–1840 (Cape Town, Maskew Miller Longman, 1989), pp. 184–204. 6 In 1806, Cape Town had 6,321 Europeans, 9,367 slaves, 1,134 free blacks and 624 Khoekhoen (Total: 17,446), according to A. Bank, The Decline of Urban Slavery at the Cape 1806 to 1843, Communications No. 22 (Cape Town, Centre for African Studies, University of Cape Town [UCT], 1991), Appendix 4: Demographic Composition of Cape Town, 1806–1827, p. 236 (figures derived from Cape District tax roll). The comparative fertility of slave and settler women has been the subject of debate. See H. F. Heese, ‘Slawegesinne in die Wes-Kaap, 1665–1795’, Kronos, Journal of Cape History, 4 (1981), pp. 38–48; P. van der Spuy, ‘“What, Then, was the Sexual Outlet for Black Males?” A Feminist Critique of Quantitative Representations of Women Slaves at the Cape of Good Hope in the Eighteenth Century’, Kronos, 23 (1996), pp. 43–56. 7 At a later date, these and other groups were lumped together and designated ‘Coloured’. 8 The label ‘baptised bastards’ (a term signifying ‘mongrel’ as well as ‘illegitimate’) was coined in the 1700s for persons of part Khoekhoe descent who had been christened. See R. Ross, Status and Respectability in the Cape Colony, 1750–1870 (Cambridge, Cambridge University Press, 1999), pp. 30 note [n.] 60, 32, 99. 9 A. Davids, The Mosques of Bo-Kaap, A Social History of Islam at the Cape (Athlone, South African Institute of Arabic and Islamic Research, 1980), pp. 46–47; E. Moosa, ‘“The Child Belongs to the Bed”: Illegitimacy and Islamic Law’, in Burman and Preston-Whyte (eds), Questionable Issue, pp. 171–184. 10 Math Verstegen has argued that the Cape was the ‘lawful child’ of the West India Company in ‘Kaapstad: Een Onwettig Kind van de VOC’ [Cape Town: Illegitimate Child of the VOC] (unpublished paper presented at the International Conference on the VOC, University of Stellenbosch, April 2002). 11 In 1809 the governor licensed a minister of the ‘Protestant Dissenting clergy’, stating that this would not ‘affect the respective Reformed and Lutheran Congregations’, Nederduits Gereformeerde Kerk Argief [NGKA], G1 1/8, p. 354, Bird to Reformed Consistory, 21 September 1809. Wesleyans followed, while Catholic priests arrived in 1817. The first settler known to practise Judaism arrived in 1808: M. Shain, Jewry and Cape Society, The Origins and Activities of the Jewish Board of Deputies for the Cape Colony (Cape Town, Historical Publication Society, 1983), p. 1; D. R. Briggs and J. Wing, The Harvest and the Hope (Johannesburg, The United Congregational Church of Southern Africa, 1970), pp. 13–38. 12 The British occupation of 1795, following events in Europe, ended with the Peace of Amiens (1802). The Dutch, whose new government was named for the ancient ‘Batavii’, returned in 1803. In 1806 the British reoccupied the Cape, which was formally ceded in 1814. 13 Davids, The Mosques of Bo-Kaap, p. 46; G. J. Schutte, ‘Between Amsterdam and Batavia: Cape Society and the Calvinist Church under the Dutch East India Company’, Kronos, 25 (1998/1999), p. 23; J. I. Marais, Geschiedenis der Nederduits Gereformeerde Kerk in Zuid Afrika, tot op de Grote Trek (Stellenbosch, Administratie-Bureau, 1919), pp. 94–96; A. H. Murray, The Political Philosophy of J. A. de Mist, Commissioner-General at the Cape 1803–1805 (Cape Town and Pretoria, Haum, n.d.). Jews and non-Protestants were forbidden by the VOC to settle at the Cape, notes M. Shain, ‘Ambivalence, Antipathy, and Accommodation: Christianity and the Jews’, in R. Elphick and R. Davenport (eds), Christianity in South Africa, A Political, Social and Cultural History (Oxford and Cape Town, James Currey and David Philip, 1997), p. 278; Shain, Jewry and Cape Society, p. xv. 14 G. M. Theal (ed.), Records of the Cape Colony [RCC], 36 volumes (London, William Clowes, 1897–1905), volume 9, pp. 147, 148, D. Denyssen, 16 March 1813. 15 Theal, RCC, volume 9, p. 150. In this case the fiscal cited Lib. 50 D. Tit. 17, Lex 209. 16 Theal, RCC, volume 9, pp. 150–151. Slaves who cohabited as man and wife could be separately sold. 17 Cape Town Archives Repository [CAR], Slave Office [SO] 17/1, Notes … since 1652 on the Subject of Slavery. 18 Theal, RCC, volume 11, p. 495, Denyssen, Encl. B in Somerset to Bathurst, 12 May 1818; C. Graham Botha, Early Cape Matrimonial Law (South African Bound Pamphlets No. 10), pp. 1–2. 19 Those involved included not only passing seafarers and other itinerants but also colonists. 20 J. N. Gerstner, ‘A Christian Monopoly: The Reformed Church and Colonial Society under Dutch Rule’, in Elphick and Davenport (eds), Christianity in South Africa, p. 22; M. K. Jeffreys (ed.), Kaapse Plakkaatboek [KP], 6 volumes (Cape Town, Cape Times Ltd, 1944), volume 1, pp. 151–152, Verbod teen die hou van Bysitte; en teen omgang met Nie-Kristelike of Slawe-Vrouens, 30 November / 9 December 1678; N. Worden, Slavery in Dutch South Africa (Cambridge, Cambridge University Press, 1985), pp. 147–148. 21 CAR, Master of the Orphan Chamber [MOOC] 13/1/23, Boedel Rekenings, 1800, Nos. 4 and 36. The Dutch scribes employed both spellings: onegt/onecht 22 Shell, Children of Bondage, p. 348; E. P. van der Schyff, ‘Maatskaplike Versorging van die Nederduits Gereformeerde Kerk aan die Kaap Gedurende 1795–1840’ (Masters dissertation, University of Pretoria, 1970), pp. 148–150; K. J. Pedro, ‘Die Doopbediening aan Slawe en Vryswartes in die Kaapse Kerk, 1802–1812’, Kronos, 9 (1984), p. 25; NGKA G1 1/8, Resolusieboek, 1802–1812, p. 320, Notule, 6 March 1809, and G1 11/1, Doop Actens van Onechte Kinderen, 1809 tot 1813. 23 CAR, Colonial Office [CO] 1, Rev. Mr. Griffiths, 31 March 1806, p. 416; P. Philip, British Residents at the Cape, 1795–1819, Biographical Records of 4,800 Pioneers (Cape Town, David Philip, 1981), pp. 429–430; C. Lewis and G. E. Edwards, The Historical Records of the Church of the Province of South Africa (London, Society for the Propagation of Christian Knowledge, 1934), pp. 5–6. 24 S. Judges and C. C. Saunders, ‘The Beginnings of an African Community in Cape Town’, South African Outlook (August 1976), pp. 122–123; H. F. Heese, ‘Die Inwoners van Kaapstad in 1800’, Kronos, 7 (1983), pp. 42–59, 60–61 [CAR, Map 334]; E. Rosenthal (ed.), Almanak van Kaapstad 1800/Cape Directory 1800 (Cape Town, C. Struik (Pty.) Ltd, 1969). Britain conducted its first decennial census in 1801. 25 Heese, ‘Die Inwoners van Kaapstad’, pp. 45–46, citing CAR, J443, Opgaaf Rolle van de geenen die onder het Vrijcorps behooren, gelijk mede van de Vrijzwarten, Bastaerd en andere Hottentotten, welke op hun eigen woonen en zich niet by anderen in dienst verhuurd hebben. For Cape Town at the turn of the century, see N. Worden, ‘Space and Identity in VOC Cape Town’, Kronos, 25 (1998/1999), pp. 80–82 and passim. 26 It may also result from incestuous or adulterous relationships, forbidden caste unions, or procreation by those sworn to celibacy. 27 Laslett, ‘Introduction’, pp. 7–11; E. Spiro, Law of Parent and Child (Cape Town, Juta, 1971), pp. 415–417. 28 By the nineteenth century, ‘Muslim imams [priests] were routinely performing ceremonies for all slaves who wanted to be joined in matrimony’, Shell, Children of Bondage, p. 320; Theal, RCC, volume 11, pp. 491, 496–509, Somerset to Bathurst, 18 May 1818, and enclosures C–E; W. Bird, State of the Cape of Good Hope in 1822, Africana Collectanea Series No. 19 (Cape Town, C. Struik (Pty) Ltd, 1966), p. 25. 29 Theal, RCC, volume 5, p. 407. Civil officers continued to certify that applicants were eligible to marry. 30 H. C. V. Leibbrandt (ed.), Precis of the Archives of the Cape of Good Hope. Requesten (Memorials) 1715–1806, 6 volumes (Cape Town, Cape Times Ltd, 1905), volume 2, p. 701, 8 October 1782; M. Grossberg, Governing the Hearth, Law and the Family in Nineteenth-Century America (Chapel Hill and London, University of North Carolina Press, 1985), p. 19. 31 An English language rendering of van de Kaap, the toponym for Cape-born and also emancipated slaves. Many free blacks dropped the toponym in favour of conventional surnames but the official records persisted in its use, identifying those free persons as former slaves. 32 CAR, CO1, Orphan Chamber, Slave Lodge, Churches, etc., 1806, No. 91, pp. 661–663, NHK Consistory to Baird, 8 December 1806,. 33 CAR, Verbatim Copies [VC] 612, NHK Baptismal Register, 1805–1810, 13 September 1807; CO1, No. 91, pp. 661–663, Consistory to Baird, 8 December 1806; NGKA, G1 12/1, Kaapstad Lidmaat, 1757–1832, p. 100, Martha van de Caab and 3 others, 17 December 1799; G1 1/8, Resolutie Boek, pp. 190–192, 1 December 1806. Martha's child was born on 22 May 1800. The merchant Alexander Scott fathered six children by his housekeeper, Elizabeth Gurtenbacht, and had another out-of-wedlock child, Aletta Catharina, by a certain ‘Martha of the Cape’, according to Philip, British Residents at the Cape. 34 CAR, CO4825, Lord Caledon, Letters Despatched, 11 February–22 October 1808, p. 74, Bird to Halloran, 21 March 1808. 35 CAR, CO11, Lord Caledon, Letters Received, 1808, No. 62, Halloran to Bird, 26 October 1808. Shortly before, Bird had responded to a request for a Licence of Baptism by remarking that he was unaware that ‘such a certificate was necessary’; CO10, No. 99, 15 October 1808. 36 CAR, CO1, No. 98, pp. 705–709, Lutheran Consistory to Governor, 25 March 1807. 37 CAR, CO1, No. 98, pp. 705–709, Lutheran Consistory to Governor, 25 March 1807. 38 T. R. H. Davenport, ‘The Consolidation of a New Society: The Cape Colony’, in M. Wilson and L. Thompson (eds), The Oxford History of South Africa, I, South Africa to 1870 (Oxford, The Clarendon Press, 1969), pp. 286, 314; CAR, CO4821, p. 63, Smyth to Consistory of the Reformed Church, 4 April 1806; CO4825, p. 64, Bird to Brand, President of the Matrimonial Court, 16 March 1808, and p. 86, Bird to Halloran, 26 March 1808; R. Davenport, ‘Settlement, Conquest, and Theological Controversy: The Churches of Nineteenth-Century European Immigrants’, in Elphick and Davenport (eds), Christianity in South Africa, pp. 51–52; P. Hinchliff, The Anglican Church in South Africa (London, Darton, Longman & Todd, 1963), pp. 4–5; P. le Feuvre, ‘Cultural and Theological Factors Affecting Relationships between the Nederduitse-Gereformeerde Kerk and the Anglican Church (of the Province of South Africa) in the Cape Colony, 1806–1910’ (PhD dissertation, UCT, 1980), pp. 7–34. 39 CAR, VC611, Doop Register der Christen Kinderen in de Hervormde Gemeente aan Cabo de Goede Hoop beginnende met het Jaar 1795; CO1, No. 98, pp. 708–709, Lutheran Consistory to Governor, 25 March 1807, pp. 708–709. 40 CAR, VC611 and 612, Doop Registers; Accessions [A] 2362, 1/2/2/1/1, [Lutheran] Doop Register, 1800–1818; A1939, 2/1/1, St. George's Cathedral, Register of Christenings, Marriages and Deaths at Cape Town commencing from the 7th of February Anno Dom. 1806. 41 Pedro, ‘Die Doopbediening aan Slawe en Vryswartes’, pp. 22–23. NHK marriage registers were also ‘colour blind’, see CAR, CO208, Churches, No. 60, Haupt to Brink, 5 July 1824. 42 CAR, CO1, No. 98, Lutheran Consistory to Governor, 25 March 1807; NGKA, G1 1/8, p. 867, Doop Registers, January 1810. 43 C. Searle, ‘A Socio-Historical Survey of the Development of Nursing in South Africa Between 1652 and 1960’ (PhD dissertation, University of Pretoria, 1964), pp. 87–90; Shell, Children of Bondage, pp. 306–307; Statutes of India of 1642. See also J. Towler and J. Bramall, Midwives in History and Society (London and New York, Croom Helm, 1988), passim. The Slave Lodge housed VOC/government-owned slaves. 44 F. H.-S. Vernal, ‘Steyntje van de Kaap: Concubinage, Racial Descent and Manumission in the Cape Colony, 1777–1822’ (BA dissertation, Princeton University, 1995), p. 56; Searle, ‘A Socio-Historical Survey’, pp. 140–150. In 1813, five ‘White Christians’ and two ‘Malays’ (both van de Kaap) qualified as midwives. 45 M. M. Marais, ‘Armesorg aan die Kaap onder die Kompanjie 1652–1795’, Archives Yearbook for South African History, 6 (Pretoria, Government Printers, 1943), passim. 46 C. J. de Kock, ‘Die Geskiedenis van die Suid-Afrikaanse Weeshuis tot 1923’ (MA dissertation, University of Stellenbosch, 1983), pp. 35–43; NGKA, V5 3/1, South African Orphan House, Notarial Deed, 1 September 1808. In 1811 the governor donated Rixdollars [Rds] 5,000 to the Weeshuis. 47 A. Hunt, Governing Morals, A Social History of Moral Regulation (Cambridge, Cambridge University Press, 1999), p. 63. 48 Laslett, ‘Introduction’, p. 26. In the 1820s, civic mobilisation at the Cape accelerated around issues such as education, temperance and freedom of the press. 49 D. Stuart, ‘The “Wicked Christians” and the “Children of the Mist”: Missionary and Khoi Interactions at the Cape in the Early Nineteenth Century’, Collected Seminar Papers, No. 44, The Societies of Southern Africa in the 19th and 20th Centuries, 18 (London, Institute of Commonwealth Studies, 1992); CAR, ZL [Microfilm] London Missionary Society Archives, 1/3/6, Box 7, Folder 2C, A Copy of the Original Minutes of the Missionary Deputies held in the Orphan House, Cape of Good Hope, August 1817. The adulterer was James Read, with the young daughter of a Bethelsdorp elder. 50 CAR, CO90, Sundry Committees … Orphan Chamber … Consistories, 1818, No. 21, Board of Church Wardens to Somerset, 10 April 1818, F. Kaufmann, Lutheran Church, to Bird, 16 April 1818 and G. Hough to Bird, 24 April 1818; CO4840, Lord Charles Somerset, Letterbook, 1818, Somerset to Kaufmann and Hough, 14 April 1818. As ‘ordinary’ of the English Church (the Cape having as yet no bishop), governors fulfilled various administrative functions of the church. 51 Philip, British Residents. Far from all made the Cape their home. 52 M. Lenta and B. le Cordeur (eds), The Cape Diaries of Lady Anne Barnard, 1799–1800, 2 volumes (Cape Town, Van Riebeeck Society, Second Series 1999), volume 2, p. 218. 53 CAR, A1939, 2/1/1, 6 June 1812, 28 July 1812, 9 January 1813; Philip, British Residents. Gordon had an older illegitimate daughter, A1939, 2/1/1, 12 June 1808. Elizabeth Counsay (or Quinsey) was probably Elisabeth Koentze van de Kaap, see NGKA, G1 11/1, 1813. 54 Lenta and Le Cordeur (eds), The Cape Diaries of Lady Anne Barnard, volume 1, p. xxvii. 55 Lenta and Le Cordeur (eds), The Cape Diaries of Lady Anne Barnard, volume 1., volume 1, pp. 37 (n. 12) and 100, and volume 2, p. 166. After Lady Anne returned to England, Barnard fathered a child of ‘mixed race’ whom she reared. See Lenta and Le Cordeur (eds), The Cape Diaries of Lady Anne Barnard, volume 2, p. 293 (n. 11). The seventh child of Johanna Elizabeth van Reenen, wife of Johannes Pieter Baumgart, was George Dundas. See J. A. Heese and R. T. J. Lombard, South African Genealogies, 10 volumes (Pretoria, Human Sciences Research Council, 1986), volume 1, Baumgart(en). 56 Philip, British Residents; CAR, VC 612. 57 R. F. M. Immelman, Men of Good Hope, 1804–1954 (Cape Town, Cape Times Ltd, 1955), p. 25. Cape Town's Chamber, one of the oldest in the world, celebrated two centuries in 2004. 58 CAR, A1939, 1/1/1 & 1/1/2; MOOC 7/1/120, No. 38 and 7/1/159 Nos. 15 and 67; Philip, British Residents. Stone's marriage to ‘Petronella Elisabeth’ in 1818, cited by Philip, has not been found in the marriage register; he adopted his second child by Rachel in 1830, when she was two. For a gendered view of Cape Town's commercial development see K. McKenzie, ‘Wollstonecraft's Models?: Female Honour and Sexuality in Middle-Class Settler Cape Town, 1800–1854’, Kronos, 23 (November 1996), pp. 61–62. 59 CAR, A1939, 2/1/1, 19 April & 15 November 1812; Philip, British Residents. Bouverie was at the Cape in 1811–1812 and may have had a family elsewhere. No father is named for Cartwright's daughters, born in 1811 and 1812. 60 CAR, CO11, No. 62, Chaplain to Secretary to the Governor, 30 October 1808. 61 Kuehn, ‘A Late Medieval Conflict of Laws’, passim; Theal (ed.), RCC, volume 9, p. 150. 62 Shell, Children of Bondage, pp. 297–298; J. C. Armstrong and N. A. Worden, ‘The Slaves, 1658–1834’, in Elphick and Giliomee (eds), Shaping of South African Society, passim. The remnant of government slaves was moved from the Slave Lodge to rented premises in 1811. 63 Shell, Children of Bondage, p. 320; Cape of Good Hope Proclamations & Advertisements, 1806–1825, Proclamation of 9 October 1812. For questions arising from the 1823 proclamation see CAR, CO208, No. 11, Thom to Somerset, 9 February 1824. 64 P. van der Spuy, ‘Slave Women and the Family in Nineteenth-Century Cape Town’, South African Historical Journal [SAHJ], 27 (1992), p. 62. In 1825 the governor acquired a council; thereafter, some measures were issued as ordinances, rather than as proclamations. 65 CAR, SO4/2, Book of Complaints, Guardian of Slaves, No. 29; SO5/1, Day Book, Guardian of Slaves, pp. 356, 361–365; Bank, Decline of Urban Slavery, p. 186. The evidence respecting paternity, which van Ryneveld heard from his own sisters, was the sort of evidence expected of midwives. 66 C. F. Iannini, ‘Contracted Chattel: Indentured and Apprenticed Labour in Cape Town, c. 1808–1840’ (MA dissertation, UCT, 1995), p. 163, citing SACA, 2 March 1831; C. Saunders, ‘“Free Yet Slaves”, Prize Negroes at the Cape Revisited’, in N. Worden and C. Crais (eds), Breaking the Chains: Slavery and Emancipation in the Nineteenth Century Cape Colony (Johannesburg, Witwatersrand University Press, 1993), pp. 102, 109; M. C. Reidy, ‘The Admission of Slaves and “Prize Slaves” into the Cape Colony, 1797–1818’ (MA dissertation, UCT, 1998), pp. 6, 9, 77–78, 81. 67 M. Lenta, ‘Degrees of Freedom: Lady Anne Barnard's Cape Diaries’, English in Africa, 19, 2 (October 1992), p. 64. Lady Anne also alluded to gossip that she had a natural son named Thomas Fair. For ‘Frows’ read vrouwen – Dutch women, or wives. 68 I. Loudon, Death in Childbirth, an International Study of Maternal Care and Maternal Mortality, 1800–1950 (Oxford, Clarendon Press, 1992), p. 123. London got a foundling hospital in 1739, but there was none at the Cape. 69 Shell, Children of Bondage, Chapter 10 passim; L. Rose, The Massacre of the Innocents, Infanticide in Britain 1800–1939 (London, Routledge & Kegan Paul, 1986), pp. 2–3, 18–21. 70 R. Shell, ‘Samuel Hudson on Marriages and Other Customs at the Cape’, Kronos, 15 (1989), p. 53 and passim. Shell refutes Hudson's account, both as to frequency and causes. Infanticide and attempted suicide by slaves were severely punished as crimes against property but that does not explain why (if, as claimed) those deeds were rare: slaves risked fearsome punishments by desertion and violence against their owners. 71 CAR, Court of Justrice [CJ] 802, pp. 118–131, Sentences, Minerva van Madagascar, 27 August 1807; Theal (ed.), RCC, volume 11, pp. 345–346, Truter to Somerset, 27 March 1817, enclosed in Somerset to Bathurst, 19 May 1817; V. de Kock, Those in Bondage (London, George Allen & Unwin Ltd, 1950), pp. 184–185; Armstrong and Worden, ‘The Slaves’, pp. 124–125. For the 1700s, see M. K. Jeffreys and S. D. Naudé (eds), KP, volume 2 (1707–1753), C. 683, p. 171, 15 March 1743, and p. 246, 24 April 1751. See also the secret burial of the infant born to a Swellendam burgher's daughter, CJ815, 1821, pp. 22–55, Fiscal contra Witbooy. 72 CAR, CJ812, pp. 590–602, Sentences, No. 27, Hester van de Kaap; Theal (ed.), RCC, volume 14, pp. 484–485, Mr Money, House of Commons, 25 July 1822, and 16, pp. 379–395, Somerset to Wilmot, 20 October 1823 and enclosure. 73 Cape of Good Hope Proclamations and Advertisements, 1806–1815, Proclamations of 26 April 1816 and 7 November 1817; Theal (ed.), RCC, 11, p. 346, Truter to Somerset, 27 March 1817, enclosed in Somerset to Bathurst, 19 May 1817. 74 Defined as adultery, breach of promise and seduction, corrupting a youth, incest, fornication, sodomy, suicide and violation of a corpse. See H. B. Fine, ‘The Administration of Criminal Justice at the Cape of Good Hope, 1795–1828’ (PhD dissertation, UCT, 1991), 2 volumes, pp. 329–330. 75 NGKA, G1 11/1, 2 December 1811 and G1 25/13, 31 November 1811; CAR, CJ804, pp. 156–162, Sentences, 1811–1812, No. 11. Stephanus was banished from the colony for life. 76 F. P. van der Heever, Breach of Promise and Seduction in South African Law (Cape Town, Juta & Co., 1954), pp. 11, 63; McKenzie, ‘Wollstonecraft's Models?’, pp. 58, 72–73; NGKA, G1 1/8, Resolutie Boek, 1802–1812, pp. 350–351, 2 October 1809. Under the English Poor Law an unmarried mother could name a putative father, who was made to pay maintenance: Rose, Massacre of the Innocents, p. 24. 77 The distinction was legal as well as moral: a ‘natural’ child was born of concubinage; the offspring of ‘mere promiscuous intercourse’ were termed ‘spurious’, states A. F. S. Maasdorp, in C. A. Beck and O. H. Hoexter (eds), The Institutes of South African Law … Book I. The Law of Persons (Cape Town and Johannesburg, Juta & Co. Ltd, 1929?), p. 9. 78 Ordinance No. 93 of 1832 … for Granting Licenses to Sell, and for the Better Regulation of the Sale of Wines, Spirituous Liquors …; S. Judges, ‘Poverty, Living Conditions and Social Relations – Aspects of Life in Cape Town in the 1830s’ (MA dissertation, UCT, 1977), p. 93; Ordinances No. 12 of 1825 and No. 48 of 1828, P. J. Venter, ‘Government Departments of the Cape of Good Hope, 1806–1910’ (typescript, Cape Town Archives Repository, 1933), p. 211. Before 1825, policing depended on the fiscal and the Burgher Watch, administered by the Burgher Council: K. Elks, ‘The Police and Crime in Cape Town, 1825–1850’, Kronos, 12 (1987), p. 45. 79 CAR, CO380, Judge and Superintendent of Police, 1830, No. 37, Lorentz to Bell, 9 January 1830, and enclosure; Ross, Status and Respectability, p. 128. 80 Theal, RCC, volume 11, pp. 176–177, R. B. Fisher to W. Wilberforce, enclosed in Fisher to Bathurst, 18 September 1816. Fisher was paymaster of the 60th Foot from 1811 to 1816. It has been suggested that, considering the ‘paternalist relationship’ of owners with slaves, their concubinage ‘contained analogous dynamics’ with incest. See R. E. van der Voort, ‘Daughters of Bondage: Paternalism and Slave Women in the Cape Colony, 1830–1834’ (BA dissertation, Princeton University, 1993), p. 63. 81 Bodleian Library of Commonwealth and African Studies, Rhodes House, Oxford, Bourke to Huskisson, 19 May 1828. 82 Grossberg, Governing the Hearth, p. 197. 83 James Buchanan (ed.), Cases Decided in the Supreme Court of the Cape of Good Hope as Reported by the Hon. William Menzies Esq. [Menzies Reports] (Cape Town, J. C. Juta, n.d.), 1, Book 2, pp. 262–265, Richter v. Wagenaar, 20 March 1829, Richter supported his separated wife to the amount of Rds 30 a month. 84 Grossberg, Governing the Hearth, pp. 201–02; Menzies Reports, 1, pp. 264–265, Richter v. Wagenaar. The court cited the Dutch jurist, Voet. 85 McKenzie, ‘Wollstonecraft's Models?’, pp. 67–70; Menzies Reports, 1, pp. 151–155, Greef [sic] v. Verreaux, 20 March 1829; pp. 149–150, Joosten v. Grobbelaar, 12 June 1832; and 3, pp. 461–462, Ludekins v. De Villiers, 2 November 1837; NGKA, G1 1/ series, Notulen, April 1830. Compensation included damages, lying-in expenses, and monthly alimony (subject to marriage or death). The court suggested that Greeff renew her suit ‘now that he [Verreaux] was major’ – advice she did not take. 86 B. Clark, ‘The History of the Roman-Dutch Law of Marriage from a Socio-Economic Perspective’, in D. P. Visser (ed.), Essays on the History of Law (Cape Town, Juta & Co., 1989), pp. 170–71; Cape of Good Hope Statutes, 1652–1895, 1, p. 235, Marriage Order in Council, in Force in this Colony from the 1st February 1839, Articles 19–20 (signed into law by the Court at Windsor on 7 September 1838). 87 Grossberg, Governing the Hearth, p. 211; R. Elphick and V. C. Malherbe, ‘The Khoisan to 1828’, in Elphick and Giliomee (eds), Shaping of South African Society, p. 41; J. L. Dolgin, ‘Transforming Childhood: Apprenticeship in American Law’, New England Law Review, 31 (Summer 1997). 88 In 1834 the Orphan Chamber was abolished and its duties assigned to the Master of the Supreme Court. There was no change ‘concerning the paternal power, guardianship, duties, and obligations of fathers and mothers over, and to their legitimate children, and of mothers over, and to their illegitimate children’, and the existing system with respect to ‘the charge and custody of … minors’ was preserved, Ordinance No. 103 … for Abolishing the Orphan Chamber …, 5 July 1833 (in force at the Cape from 1 March 1834). 89 CAR, CO3991, Memorials, 8, U–Z, 1836, No. 51, pp. 239–240, 29 March 1836; MOOC 35/7/1, Tutors, 1, No. 307. Townroe, R., 15 March 1836 (cancelled 29 January 1844 vide No. 1709); CO451, Superintendent of Police, 1836, No. 15, Lorentz to Bell, and enclosure; CO4907, Letterbook, 1836, pp. 177–78, Bell to Resident Surgeon, Somerset Hospital, and Bell to Director … Hospital for Infirm Government Apprentices, 12 March 1836; NGKA, V5 1/1, Minutes, Extraordinary Meeting of Directorate, 10 March 1836, p. 195, and V5 2/1, Stronch to Bell, p. 14; Kaapsche Almanak en Naamboek/Cape Calendar & Directory, 1836. Officials were at first unsure of the legalities of apprenticing children in such a case. 90 CAR, CO490, Medical Committee etc., 1840, No. 28, Townroe to Secretary to Government, 12 March 1840 and enclosure. 91 CAR, CO499, Medical Committee … Somerset Hospital, Pauper Asylum, 1841, No.136. Townroe, 10 November 1841; CO490, No. 66, Townroe to Secretary to Government, 17 June 1840; CO4914, p. 31, Letterbook, Bell to Townroe, 17 June 1840; G.H. Harding (ed.), Cape of Good Hope Government Proclamations & Ordinances, p. 427, No. 12 of 1836. The younger boy, Dennis, was later apprenticed to the same master. Boys were indentured to age 18, girls to 16. 92 CAR, CO490, Nos. 66, 74, and 84, Townroe to Secretary to Government. Pauper inmates were also identified by markings on thei
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