In Onegt Verwekt

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, p. Searle, ‘A Socio-Historical pp. In and van de as M. M. Marais, aan die Kaap onder die 1652–1795’, Archives for South African History, 6 passim. C. J. de ‘Die van die tot dissertation, University of Stellenbosch, 1983), pp. NGKA, South African Orphan 1 September 1808. In the governor to the A. Governing A Social History of (Cambridge, Cambridge University Press, 1999), p. Laslett, ‘Introduction’, p. In the at the Cape as and of the D. ‘The and the of the and at the Cape in the Early Century’, No. The of Southern Africa in the and 18 (London, Institute of Studies, CAR, Society A of the of the Deputies in the Orphan Cape of Good Hope, 1817. The was James with the of a 50 CAR, ... Orphan Chamber ... 1818, No. Board of Church to 10 April 1818, F. Lutheran Church, to Bird, 16 April and G. to Bird, 24 April 1818; Lord 1818, Somerset to and 14 April of the English Church Cape as of the Philip, British from all made the Cape their M. and le (eds), The Cape of 2 volumes (Cape Town, Society, Series 1999), volume 2, p. CAR, A1939, 2/1/1, 6 28 July 9 January Philip, British had an A1939, 2/1/1, 12 1808. Elizabeth was van de Kaap, see NGKA, G1 11/1, 1813. and (eds), The Cape of volume 1, p. and (eds), The Cape of volume volume 1, pp. 37 and 100, and volume 2, p. returned to fathered a child of See and (eds), The Cape of volume 2, p. The child of Elizabeth van wife of was See J. A. and R. T. J. South African 10 volumes Research volume 1, Philip, British CAR, R. F. M. of Good Hope, (Cape Town, Cape Times Ltd, p. 25. Cape Chamber, one of the in the in CAR, A1939, & No. 38 and Nos. 15 and Philip, British marriage to in 1818, cited by Philip, has not been in the marriage he his child by in was For a view of Cape see K. and in Cape Town, Kronos, 23 pp. CAR, A1939, 2/1/1, 19 April & 15 November Philip, British was at the Cape in and may had a family named for born in and CAR, CO11, No. 62, to to the Governor, 30 October 1808. Kuehn, ‘A Late Medieval Conflict of Theal (ed.), RCC, volume 9, p. 150. Shell, Children of Bondage, pp. J. C. and N. A. Worden, ‘The in Elphick and Giliomee (eds), Shaping of South African Society, passim. The of government slaves was from the Slave Lodge to in Shell, Children of Bondage, p. 320; Cape of Good Hope & of 9 October For from the see CAR, CO208, No. 11, to 9 February 1824. P. van der Spuy, Women and the Family in Nineteenth-Century Cape Town’, South African Historical Journal 27 p. In the governor a some measures were issued as as CAR, of of No. of pp. Bank, Decline of Urban p. The respecting which van from his was the of of C. F. and in Cape Town, dissertation, UCT, p. citing 2 March C. Saunders, at the Cape in N. and C. (eds), the Slavery and Emancipation in the Cape Colony (Johannesburg, Witwatersrand University Press, pp. M. C. ‘The of Slaves and the Cape Colony, dissertation, UCT, pp. 9, M. of Cape English in Africa, 2 1992), p. also to that had a named For – Dutch or I. in an International of and (Oxford, Clarendon Press, 1992), p. a in but was at the Cape. Shell, Children of Bondage, 10 L. The of the in Britain (London, & pp. R. Shell, on Marriages and at the Cape’, Kronos, 15 p. and passim. both as to and and attempted by slaves were as but that not as those were slaves by and their CAR, of pp. van 27 1807; Theal (ed.), RCC, volume 11, pp. to 27 March in Somerset to Bathurst, 19 May V. de Those in (London, & Ltd, pp. and Worden, ‘The pp. For the see M. K. Jeffreys and S. D. (eds), volume 2 C. p. 15 March and p. 24 April See also the of the born to a pp. CAR, pp. No. van de Theal (ed.), RCC, volume pp. of 25 July 1822, and pp. Somerset to 20 October and Cape of Good Hope and of 26 April and 7 November Theal (ed.), RCC, 11, p. to 27 March in Somerset to Bathurst, 19 May 1817. as of and a and of a See H. ‘The of at the Cape of Good Hope, (PhD dissertation, UCT, 1991), 2 pp. NGKA, G1 11/1, 2 December and G1 31 November CAR, pp. No. was from the colony for F. P. van der of and in South African Law (Cape Town, & pp. 11, pp. NGKA, G1 1/8, Resolutie Boek, 1802–1812, pp. 2 October 1809. the English Law an could a who was made to of the p. The was legal as well as a child was born of the of were A. F. S. in C. A. and H. (eds), The of South African Law ... I. The Law of (Cape Town and & Ltd, p. No. of ... for to and for the of the of S. and Social – of in Cape Town in the dissertation, UCT, p. No. 12 of and No. of P. J. of the Cape of Good Hope, 1806–1910’ Cape Town Archives p. on the fiscal and the by the K. ‘The and in Cape Town, Kronos, 12 p. CAR, and of No. to 9 January and Ross, Status and p. Theal, RCC, volume 11, pp. R. to W. in to Bathurst, 18 September was of the from to It has been the of with slaves, their concubinage with See R. E. van der of and Slave Women in the Cape Colony, (BA dissertation, p. of and African Studies, to 19 May Grossberg, Governing the Hearth, p. James (ed.), in the of the Cape of Good Hope as by the William (Cape Town, J. C. Juta, 1, 2, pp. 20 March his wife to the of 30 a Grossberg, Governing the Hearth, pp. 1, pp. The cited the Dutch pp. 1, pp. 20 March pp. 12 and pp. 2 November NGKA, G1 April included and to marriage or The that her that he was – did not ‘The History of the Roman-Dutch Law of from a in D. P. (ed.), on the History of Law (Cape Town, & 1989), pp. Cape of Good Hope 1, p. in in in this Colony from the February law by the at on 7 September Grossberg, Governing the Hearth, p. R. Elphick and V. C. ‘The to in Elphick and Giliomee (eds), Shaping of South African Society, p. J. L. in Law’, New Law Review, 31 In the Orphan Chamber was and its to the Master of the was change the and of and and to their and of and to their and the system with respect to and of ... was No. ... for the Orphan Chamber 5 July at the Cape from 1 March CAR, No. pp. 29 March 1, No. 15 March 29 January No. of No. 15, to and pp. to Somerset and to Director ... for 12 March NGKA, of 10 March p. and to p. Almanak en & were at first of the of children in a CAR, etc., No. to to 12 March and CAR, ... Somerset 10 November No. to to 17 p. to 17 (ed.), Cape of Good Hope & p. No. 12 of The was later to the were to to CAR, Nos. 74, and to to were also by on

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