Hostname: page-component-586b7cd67f-2brh9 Total loading time: 0 Render date: 2024-11-25T08:58:12.579Z Has data issue: false hasContentIssue false
  • English
  • Français

Cultures of Sex, Laws of Difference: Age of Consent Law and the Forging of a Fraternal Contract on the Margins of the Nineteenth-Century British Empire

Published online by Cambridge University Press:  02 April 2020

Nafisa Essop Sheik
Get access Rights & Permissions [Opens in a new window]

Abstract

In the British colony of Natal, laws governing sex for settlers were concerned with reproduction and sexual respectability, which were the grounds for imagining difference amongst imperial populations only recently assembled under colonial jurisdiction. Age of consent laws arose out of these contingencies rather than out of any concern with a liberal politics of social reform. Consequently, colonial age of consent laws governing white settlers bore only superficial resemblance to metropolitan legislative reforms such as age of consent laws. Instead, the Natal state's practices of law-making recognized three discrete and divergent moral economies of sex in the colonial laws governing white settler citizens, Native law which governed the lives of Africans and the consolidated body of laws governing Indian immigrants. In this young colony, not only did ‘age of consent’ laws have to be newly made, but they were conceived separately and contained by ‘colonial law’, ‘Native custom’ and ‘Indian custom’. The sexuality of young white woman was coded in colonial rape laws and used to draw lines of civilizational difference between settler citizens and their Others. For these others, relating sex to exceptional marriage customs excluded from legal codes of civilized common practice was how the state worked to assert difference.

Type
Forum: Regulating Age of Consent in the British Empire
Information
Law and History Review , Volume 38 , Issue 1 , February 2020 , pp. 201 - 218
Copyright
Copyright © the American Society for Legal History, Inc. 2020

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

She is grateful for the spontaneous and generous childcare labours of Shireen Hassim and Clare Loveday one beautiful day in the Cape; for the support of the brilliant women of the Women's Writing Group; for Stephen Sparks' daily reproductive toil; and for Keith Breckenridge's encouragement of the ferocity of this woman's scholarly purpose. All of them feminist solidarities and friendships without which this paper would not have seen the light of day.

References

1. Mantena, Karuna, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton, NJ: Princeton University Press, 2010)CrossRefGoogle Scholar; Sarkar, Tanika, “Rhetoric against Age of Consent: Resisting Colonial Reason and Death of a Child-Wife,” Economic and Political Weekly 28:36 (Sep. 4, 1993): 1869–78Google Scholar; and Sarkar, Tanika, Hindu Wife, Hindu Nation: Community, Religion and Cultural. Nationalism (New Delhi: Permanent Black, 2001)Google Scholar.

2. The Natal Blue Books put the population figures for 1852 at 7,629 whites and 112,988 blacks. See Colony of Natal, Blue Book on Native Affairs (Pietermaritzburg, 1909), 3.

3. Census of the Colony of Natal. 1904. Presented to His Excellency the Governor of Natal, June, 1905 (Pietermaritzburg: P. Davis and Sons, Government Printer, 1905), HA2012 1904.

4. Parle, J. and Mahoney, M., “An Ambiguous Sexual Revolution: Sexual Change and Inter-Generational Conflict in Colonial Natal,” South African Historical Journal 50 (2004): 134–51Google Scholar; and Martens., Jeremy “‘Civilised Domesticity’, Race and European Attempts to Regulate African Marriage Practices in Colonial Natal, 1868–1875,” History of the Family 14 (2009): 340–55CrossRefGoogle Scholar.

5. Stephen Robertson, “Age of Consent Laws,” in Children and Youth in History, Item #230, http://chnm.gmu.edu/cyh/items/show/230 (January 20, 2019). This appears to have been the prevailing common sense understanding of the relationship between menarche and climate in the nineteenth-century British Empire. See also Tanika Sarkar, “Rhetoric against Age of Consent.”

6. Pietermaritzburg Archives Repository (hereafter NAB) Attorney General's Office (hereafter AGO) I/8/63 437A/1898 (2308/99) 16th March 1899 - Minute Paper; AGO 3986/1899, Bishop of Natal's Minute.

7. Gorham, Deborah, “The ‘Maiden Tribute of Modern Babylon’ Re-examined: Child Prostitution and the Idea of Childhood in Late-Victorian England,” Victorian Studies 21 (1978): 353–79Google Scholar; and Jackson, Louise A., Child Sexual Abuse in Victorian England (London: Routledge, 2000)Google Scholar.

8. Francis, Keith, “Canon Law Meets Unintended Consequences: The Church of England and the Clandestine Marriage Act of 1753,” Anglican and Episcopal History 72 (2003): 451–87Google Scholar

9. Lemmings, David, “Marriage and the Law in the Eighteenth Century: Hardwicke's Marriage Act of 1753,” The Historical Journal 39:2 (1996): 339–60CrossRefGoogle Scholar; and Probert, Rebecca, “The Impact of the Marriage Act of 1753: Was It Really ‘A Most Cruel Law for the Fair Sex’?” Eighteenth Century Studies 38:2 (2005): 247–62CrossRefGoogle Scholar.

10. Ballard, C., John Dunn: The White Chief of Zululand (Craighall: A.D. Donker, 1985)Google Scholar. This mid-nineteenth-century turn to difference is outlined in A. Bank, “Losing Faith in the Civilizing Mission: The Premature Decline of Humanitarian Liberalism at the Cape, 1840-60,” in Empire and Others: British Encounters with Indigenous Peoples, 1600-1850, ed. Martin Daunton and Rick Halpern (Philadelphia: University of Pennsylvania Press, 1999), 364–81.

11. Colonial Office 879/17/224, Appendix M. Settlement of Zululand. Wolseley to Hicks Beach, October 9, 1879.

12. Cooper, Frederick and Stoler, Ann Laura, “Between Metropole and Colony,” in Tensions of Empire, ed. Cooper, Frederick and Stoler, Ann Laura (Berkeley: University of California Press, 1997), 5Google Scholar. See also Hyam, Ronald, “Empire and Sexual Opportunity,” Journal of Imperial and Commonwealth History 14 (1986): 34–90CrossRefGoogle Scholar; Ballhatchet, Kenneth, Race, Class and Sex under the Raj: Imperial Attitudes and Policies and their Critics, 1793-1905 (New York: St. Martin's Press, 1980)Google Scholar.

13. The relationships among African customary practices of marriage were central to the political economy of the region, as detailed by a number of scholars over the past four decades, but perhaps the most well-known on this point is Guy, Jeff, “Gender Oppression in Southern Africa's Precapitalist Societies,” in Women and Gender in Southern Africa to 1945, ed. Walker, Cheryl (Cape Town: David Philip, 1990), 33–47Google Scholar.

14. Guy, Jeff, “An Accommodation of Patriarchs: Theophilus Shepstone and the Foundations of the System of Native Administration in Natal,” Journal of Natal and Zulu History 32 (2018): 81–99CrossRefGoogle Scholar; McClendon, Thomas, White Chief, Black Lords: Shepstone and the Colonial State in Natal, 1845-1878 (Rochester, NY: University of Rochester Press, 2010)Google Scholar; Etherington, Norman “The Shepstone System in the Colony of Natal and beyond the Borders,” in Natal and Zululand from Earliest Times to 1910, ed. Duminy, Andrew and Guest, Bill (Pietermaritzburg: University of Natal Press, 1989), 170–92Google Scholar; and Welsh, David, The Roots of Segregation: Native Policy in Colonial Natal, 1845-1910 (Cape Town: Oxford University Press, 1971)Google Scholar.

15. The 1857 rebellion in India and the rising of former slaves at Morant Bay in Jamaica in 1865 marked spectacular symbolic ruptures undermining the liberal reformist imperialism, heralding the ascendency of a sharper-toothed imperialism and the “Invention of Tradition” turn within the British Empire. See Metcalf, T., Ideologies of the Raj (Cambridge: Cambridge University Press, 1994)Google Scholar, especially ch. 2; Cohn, B., “Representing Authority in Victorian India,” in The Invention of Tradition, ed. Ranger, T. and Hobsbawm, E. (Cambridge: Cambridge University Press, 1983), 165–210Google Scholar; K. Mantena, Alibis of Empire; and T. Sarkar, “Rhetoric Against Age of Consent.”

16. Lorimer, D., Science, Race Relations and Resistance: Britain, 1870-1914 (Manchester: Manchester University Press, 2013), 43CrossRefGoogle Scholar. Although this was true throughout the British Empire in the late nineteenth century, it is also interestingly reflected, as Lorimer points out, in British views of the American Reconstruction period of the 1860s and 1870s.

17. Cooper and Stoler, “Between Metropole and Colony,” in Tensions of Empire, 5–6; and Stoler, Ann Laura, Race and the Education of Desire: Foucault's History of Sexuality and the Colonial Order of Things (Durham, NC: Duke University Press, 1995)CrossRefGoogle Scholar.

18. Colony of Natal, Blue Book on Native Affairs, 1909, 3.

19. NAB Natal Colonial Publications (hereafter NCP) 2/2/2/7 Legislative Council Debates, Women and Children Protection Bill.

20. NAB AGO I/8/63 438A/1898 and 439A/1898 Memorials from Missionaries and the Lord Bishop of Natal.

21. NAB, NCP, Laws of the Colony of Natal, Act 37, 1899, Protection of Women and Children Act.

22. NAB, NCP, Laws of the Colony of Natal, Act 38, 1901, Destitute Children and Juvenile Offenders Act.

23. NAB NCP 2/2/2/8 Legislative Council Debate, Women and Children's Protection Bill, August 3, 1899.

24. NAB NCP 2/2/2/8 Legislative Council Debate, Women and Children's Protection Bill, August 2, 1899.

25. NAB NCP 2/2/2/8 Legislative council Debate, Second Reading, Women and Children's Protection Bill, August 15, 1899.

26. Stoler, Ann Laura, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley: University of California Press, 2002)Google Scholar; and Lake, Marilyn and Reynolds, Henry, Drawing the Global Colour Line: White Men's Countries and the International Challenge of Racial Equality (New York: Cambridge University Press. 2008)CrossRefGoogle Scholar.

27. Sheik, Nafisa Essop, “Customs in Common: Marriage, Law and the Making of Difference in Colonial Natal,” Gender and History 29 (2017): 589–604CrossRefGoogle Scholar.

28. NAB NCP 2/1/1/7. 1885. Christian Native Marriage Bill, August 6.

29. For a fuller discussion of the gendered and generational transformations initiated by the 1869 law, see Sheik, Nafisa Essop, “African Marriage Regulation and the Remaking of Gendered Authority in Colonial Natal, 1843-1875.” African Studies Review 57 (2014): 73–92CrossRefGoogle Scholar.

30. NAB Native Affairs Commission Evidence 1881‒82.

31. The act was less about freeing women from “degradation” than it was about shifting the generational power of men by allowing younger men access to women on the same basis as older men of greater customary status. For a fuller discussion of the 1869 law and the illiberal impulses behind what was seemingly an instance of reform, see Nafisa Essop Sheik, “African Marriage Regulation and the Remaking of Gendered Authority in Colonial Natal, 1843-1875.” It was also not necessarily the case that young African women had begun to take the kind of liberties in relation to the supposed legal liberalization that their fathers and guardians claimed. Some women did indeed use the law to leave their parental homes and “come to town,” as Shepstone testified before the Native Affairs Commission in 1882 (NAB NCP 2/2/2), and as scholars such as Norman Etherington, David Welsh, Ben Carton, and others have noted. But the protests of older African men in fact reflected the real and imagined consequences of the rupture in the authority of older African men. The abanumzana (married men) and chiefs who testified to the ruptures induced by the law were testifying to the manner in which the law appeared to be undermining a specifically generational form of male power. Younger men's testimony welcomed the 1869 restrictions as a way of checking the authoritarian power of chiefs and senior men and making it possible for young men to marry more readily.

32. “Editorial,” Natal Witness, May 21, 1869.

33. NAB Secretary for Native Affairs (hereafter SNA) 742/89 260/89 Marriage by Xtian Rites Guardian of Divorced Woman. Native Law.

34. Copy of Extract from papers SNA 2097/1900, Secretary Law Department Responds to Magistrate on Lobola.

35. NAB NCP 2/2/2/8 Legislative Council Debate, Women and Children Protection Bill, August 3, 1899

36. Whitehead, Judith, “Bodies of Evidence, Bodies of Rule: The Ilbert Bill, Revivalism, and Age of Consent in Colonial India,” Sociological Bulletin 45 (1996): 29–54CrossRefGoogle Scholar; and Sarkar, “Rhetoric against Age of Consent.”

37. Sarkar, “Rhetoric against Age of Consent.”

38. Kosambi, Meera, “Girl-Brides and Socio-Legal Change – Age of Consent Bill (1891) Controversy,” Economic and Political Weekly 26:31-32 (1991): 1857–68Google Scholar.

39. Reformers argued that customarily consummation—garbadhan—occurred once the child bride reached the age of menarche, and that this could be inferred to be an age of consent. See Sarkar, “Rhetoric against Age of Consent.”

40. NAB NCP 2/1/1/5 Legislative Council Debate, Indian Divorce Bill, September 17, 1883.

41. Washbrook, David, “Law, State and Agrarian Society in Colonial India,” Journal of Modern Asian Studies 15 (1981): 649–721CrossRefGoogle Scholar; and Cohen, Bernard, “Law and the Colonial State in India,” in Colonialism and its Forms of Knowledge: The British in India (Princeton, NJ: Princeton University Press, 1996)Google Scholar.

42. NAB AGO 1250/1901 I2136/07 Age of Consent for Indian Women in the Various Colonies.

43. NAB NCP Laws of the Colony of Natal, Law 25, 1891;AGO 1/8/63, 3137/99 [440A/1898] Protector of Immigrants to Colonial Secretary April 21, 1899.

44. Mehta, Uday Singh, Liberalism: A Study in Nineteenth Century British Thought (Chicago: Chicago University Press, 1999), 12CrossRefGoogle Scholar.