A Metropolitan Category

There was public uproar in the 1800s over matters of sex in the British Empire. Incest, prostitution, venereal disease, and child marriage were part of prominent and heated debates that were ultimately about imperial civilization and the place of white women in the Empire. These debates drew the metropolitan center of “home” into conversation with the imperial “harems” of spaces such as British India and colonial Africa, where threats to the sanctity and purity of British life abounded. Almost every one of the laws governing sex in this late imperial moment was made in this relational context of imperial self-fashioning and imagination. Among these were new laws—and a new legal category—of the “age of consent,” which turned on the control and accessibility of young women's bodies for sex.

From the 1870s, British social reformers, such as Josephine Butler and Barbara Bodichon, concerned about—among other things—child prostitution and the prevalence of incest, called for laws that protected young people from sex. The first age of consent law in Britain, which raised the minimum age of consent above the age of marriage to 13, was passed in 1875. The age of consent had previously been set at 12 years by statute in 1861 and had developed out of the common law practice of the age of marriage. The continued efforts of reformers such as William Stead and Bramwell Booth resulted in the raising of this to 16 years of age in 1885. The 1885 consent law was not only part of new laws regulating sexuality, but also part of the development of state protections for children, and in the case of sex, placed restrictions on the exercise of customary forms of parental authority which had been found wanting in the nineteenth-century reformist context.Footnote ⁷

The extant common law age of consent of 12, which the new laws replaced, had only been about sex in part. It had entered common law practice through the formal legal consolidation of customary marriage practices in the eighteenth century, where what was termed an “age of marriage” was first formally laid down by English statute in Hardwicke's Marriage Law of 1753. Hardwicke's law gave parents formal guardianship by outlawing informal marriages without their consent as part of a regulatory shift from custom to law and from ecclesiastical to state jurisdiction over marriage.Footnote ⁸ It set new, formal processes of marriage, which could only begin at the age of 12 with parental approval, thereby situating parental consent at the heart of new formal processes of marriage.Footnote ⁹ In doing this, it set a firm legal basis for what had been long-standing customs of parental authority and consent to children's marriages, and also provided for an age of majority of 21 at which this consent was no longer required.

Nineteenth-century age of consent laws, on the other hand, expressed reformist concern with setting the appropriate social terms for sex and sexuality that were clearly not contained by the institution of marriage. Age of consent laws ultimately asserted state jurisdiction over young people's sexuality from birth until the attainment of the age of consent. This state protection for young people crucially restricted the customary parental authority that the state had legally recognized in 1753 over marriage (and implicitly over sexuality) to only begin with the age of consent.

These new laws were laws of sexual prohibition, which marked a period of protection for children as important to a new, nineteenth-century moral economy of sex delimited by emerging liberal state practices. They were asserted over customs of sexual permissibility, characterized by parental discretion over the sexual availability of their children, chiefly in marriage.

Colonial Difference

Metropolitan reform around sexual regulation and childhood soon found its way into lawmaking in the far reaches of the British Empire, with colonies from the Cape to Canada and the Australian territories all passing age of consent laws in the closing decades of the nineteenth century. In many colonial spaces, however, laws governing sex for settlers were rather more concerned with colonial reproduction and sexual respectability, which were the grounds for imagining difference among imperial populations relatively recently assembled under colonial jurisdiction. In Natal, today part of a province of present-day South Africa, in the mid- to late nineteenth century colonial laws of sex were fabricated out of these contingencies rather than out of the concern with the politics of social reform espoused by Bisset's petitioners, Christian missionaries, and other colonial liberals.

The legislative repudiation of calls for liberal reform and the ultimately segregationist character of the colony's lawmaking arose out of the contestations over the categories of ruler and ruled, which lay at the heart of colonial politics in Natal. These struggles were, early on, confounded by the racial ambiguities of gendered customs of sex and marriage, which existed in the pre-colony. The acculturation of early “white” traders in the area to local African customary ways of life not only confounded the binaries of a colonial encounter, but placed influential colonists such as Theophilus Shepstone at the forefront of the struggle to delineate the boundaries of whiteness.Footnote ¹⁰ The legal lines that people such as Shepstone were attempting to use to divide desire from racial discipline were also about refuting or “othering” the ambiguous sexual and social existences of these early settlers who had arrived in Natal in the late precolonial period. Shepstone was strident in his condemnation of these men, declaring that they had renounced civilization.Footnote ¹¹

As much as the colonies were a domain for the indulgence of the sexual fantasies of colonizing men, settler elites were also intent on marking the boundaries of a colonizing population, to prevent men of their own race from “going native,” and “to curb a proliferating mixed-race population that compromised their claims to superiority and thus the legitimacy of white rule.”Footnote ¹²

State focus on marriage regulation as the basis for new legal differentiations between colonial groupings from the middle of the nineteenth century arose out of the “Shepstone System.” Shepstone was a key advocate of a conservative, segregationist politics through his Native administration, which centered on the regulation of African customary marriage as the focal point of sexual and cultural reproduction.Footnote ¹³ Shepstone's autocratic vision came to constitute what some scholars have described as the “traditionalist” rule of Africans in the region;Footnote ¹⁴ and his accommodations with Zulu patriarchs took place in an imperial moment in which any project of liberal reform was increasingly giving way to a more circumspect politics of intervention in the lives of colonial subjects in far-flung parts of the British Empire.Footnote ¹⁵

The threat of unruly sex and racial impropriety loomed large in Shepstone's administration, but was not unique in the mid-1800s, as colonial administrative concerns elsewhere reflected new languages of racial conflict which “made a much more direct appeal to white male phobias about a presumed sexual threat black males posed to white females.”Footnote ¹⁶ In colonial spaces, as in European societies, the survival of a ruling race was often seen to be precariously predicated on a strict adherence to cultural- and gendered prescriptions of sexual practice.Footnote ¹⁷ This drawing of boundaries in pursuit of “racial survival” was especially the case in Natal in the mid-1800s where the settler population of a few thousand or so lived in fear of being racially overrun by the more than 100,000 Africans in and around the district.Footnote ¹⁸

As a result, Natal's colonial laws of sex governing white settlers, most of whom were from England, bore only superficial resemblance to metropolitan legislative reforms such as age of consent laws. Instead, as Attorney General Henry Bale noted in the debate over the bill, the Natal state's practices of lawmaking recognized three discrete bodies of law: common laws governing white settler citizens; Native law, which governed the lives of Native Africans; and the “Coolie Consolidation Laws,” which was the consolidated body of laws governing Indian indentured and ex-indentured migrants.Footnote ¹⁹ When the colony of Natal was established in the mid-1800s, not only did laws on marriage and sex have to be newly made, but they were conceived separately for each of these populations and contained by these three discrete bodies of colonial law.

Debating Reform

In addition to the significant proportion of the colony's women, missionaries and clergy of all denominations expressed keen support for a higher age of consent than the state was proposing. Following on the heels of the women's call, two supporting petitions were submitted: one by the bishop of the Church of England signed by nine church ministers, and another by a group of Wesleyan, Presbyterian, Congregationalist, and Baptist missionaries, all of whom cited their work among Natal's “coloured races” in their appeals for sexual reform that crossed racial boundaries and raised the age of consent to 16 years.Footnote ²⁰

But their pleas ultimately failed. The prospect of raising the age to 16 met with such strong opposition from men in the legislative council that it threatened to derail the bill entirely. A compromise of 14 years of age was reached amid arguments that Natal was a hotter climate than England, which supposedly meant that sexual maturity occurred earlier (a claim emphatically denied by the women's petition that claimed to have conducted inquiries into this), and that the nearby British Cape Colony had set an age of consent of 14 years. Additionally, the fact that raising the age of consent would raise the de facto age of marriage was considered to be untenable. Whereas marriage rarely seemed to take place under the age of majority in Natal, the common law age of marriage of 12 was something that the men of the legislative council refused to consider raising.

After intense debate, two laws were passed a year apart from each other. The first—The Law for the Protection of Women and Children—defined as rape “unlawful sex” with girls under the age of 14 and punished it with a death penalty.Footnote ²¹ It was a rape law that did not rule out the possibility of “lawful sex” with settler men who remained able, in theory at least, to marry girls from the age of 12 up. Insofar as the rape law represented an age of consent, it was not applicable to respectable white men.

The debate on the bill was remarkable, as the refusal of lawmakers to accede to a law that restricted their own sexual freedoms scuppered an all-encompassing age of consent law, but turning the focus to the supposed threat of the unrestrained sexuality of Native men allowed the passage of a measure policing sexual boundaries as racial ones. A second law “The Destitute Children and Juvenile Offenders Act” declared girls under the age of 16 known or thought to be prostitutes, or seen in public to be exhibiting behaviors vaguely considered to be indecent, as destitute children, removing them into the care of the state until their 18th birthday.Footnote ²² Whereas the harshness of the first law appeared to offer children strong state protection from sex, the second was passed a year later to ease lawmakers’ concerns that white men would be unfairly prosecuted for having sex with young girls whom they took to be prostitutes.

The supposedly well-known sexual inducements of young girls sat alongside arguments about the need to protect white womanhood and through it “English civilization” in Natal. As one member summed it up: “It is no use mincing the matter—what is wanted is to protect the virgin women of the colony.”Footnote ²³ Another supported the arguments of the majority of the legislators that: “It is very nice—we are protecting the females, and [we] shall do [our] utmost to protect them, but…why (are) males not to have the same protection…I think that the men ought to be entitled to plead that the female was a prostitute even if he did have carnal knowledge.”

The sexual double standard did not waver at the threshold of childhood. In the absence of a consistently vocal progressive reform movement, the sexual entitlements of white men in Natal were deemed important enough to prevent the age of consent from being raised to the new British standard of 16. Together, these sex laws drew the lineaments of a colonial sexual moral economy quite clearly. The unequal relative positions of men and women in colonial sexual culture may be clearly inferred, but by deploying the punitive force of the law against men —and in particular Native men—they constituted an acceptable sexual economy supposedly based in principles of restraint. The “virgin women” protected by laws self-consciously made by white men embodied the legal culture of colonial sex for white settlers in nineteenth-century Natal.

Relational Lawmaking

Sex, as much as law, is relationally made. The colony's Others came to be invoked repeatedly in the process of formulating this law. The opposition to sexual restrictions on white men was rivalled in force only by calls to restrict the law to settlers; women governed by the Indian Immigration Laws and the Natal Native Code were disqualified from any protections, such as they were.

The debate in the legislature was marked by arguments about the supposed sexual permissiveness of Native men, and the early sexual maturity and promiscuity of Native and Indian women. At the first reading of the bill in early August 1899, the deputy speaker argued that including anyone other than white women would place “…the life and liberty of every white man in this country at the mercy of every coolie girl.” White men in Natal appear to have been besieged by female sexuality at every turn.Footnote ²⁴

There was unanimity that whatever provisions were made for Indian and Native women needed to respect the presupposed integrity of racial and cultural difference. As one lawmaker helpfully pointed out: colonial laws of protection could not be applied more widely, as Native men would likely fall foul of laws that tried to protect Native women on the same terms as white women, because they were accustomed to the more permissive moral economy of sex particular to their civilizational circumstances.Footnote ²⁵ What legislators were commending was the supposedly salutary character of Native Law in its disinclination to impose the same civilized sexual restrictions on “those in Natal to whom it was not fitted.” By the same token, the new settler rape law was intended to protect young white girls from exactly this threat posed by the unrestrained sexual appetite of Native men.

If the normative character to which settler sexual culture aspired was coded in rape and indecency laws, the laws governing the sexual mores of non-citizens were presented as an implicit part of racially bound codes that foregrounded marriage. Here, Native Law was the exemplar. The execution of these laws treated marriage processes as endogamous, culturally prescriptive rules encompassing permissive sexual norms that the state recognized as customary exceptions.

The formative ideological influence driving legal practice represented an early part of a global shift in the making of difference attributed to this historical moment. Scholars of other colonial contexts have argued that it was in the late nineteenth and early twentieth centuries that older colonial possibilities of sociability and intimacy between colonial groups increasingly raised concerns over racial purity and made way for new social prescriptions encouraging racial vigilance and the policing of the boundaries of colonial intimacies.Footnote ²⁶

Fear and desire worked together through the realm of sex to delineate difference in settler-colonial settings. Shaping desire along newly emerging lines of racial discipline was key to the process of establishing hierarchical forms of racial difference through the policing of sex and sexuality.Footnote ²⁷ Sex, as the basis for the reproduction of colonial populations, became the heavily policed borderland of colonial race-making and consolidation. Marriage remained the discursive home of respectable sex and social reproductive aspiration and was thus established as the fulcrum of colonial regulation and difference-making.

Native Law

It had become clear by the mid-1860s that reform of African customary marriage was unlikely to be comprehensive, because attempts by the colonial legislature to undermine these practices were scuppered by Shepstone, in consultation with the governor and the Colonial Office.Footnote ²⁸ Shepstone stressed the need to avoid antagonizing the large African population whose social and economic labors subsidized colonial life and whose political existence, he persistently argued, could be more easily controlled through gradual colonial intervention with distinctly paternalist features. The fear of “Native revolt” was a constant refrain in Shepstone's interactions with settlers and the Colonial Office. The anticolonial uprisings in the 1850s and 1860s in India and Jamaica no doubt supported Shepstone's case; his arguments for gradualism and the shoring up of customary practice found favor with a Colonial Office newly attuned to the threat of revolts and freshly reacquainted with the political virtues of the long-stated (if rarely pursued) imperial mandate of “non-intervention.”⁸

The secretary for Native affairs manipulated existing forms of gendered authority to shore up a particular vision of colonial life that was racially segregated and culturally discrete. Although his detractors inside and outside of the colonial administration decried what they believed was the affirmation of “immoral” custom through Shepstonian Native policy, Native administration in nineteenth-century Natal ultimately came to reflect his ideas rather than those of colonists and moral reformers who understood the eventual assimilation of Africans and the eradication of customary practice to be the aim of colonial rule.

Under fire from reformers and vilified by public opinion, Shepstone had introduced an African marriage register in 1869 to provide for the administrative regulation of marriages in Natal's African population. Foremost, it was a means of assisting the state in adjudicating marital, inheritance, and property disputes arising primarily out of the payment of lobola (bridewealth).Footnote ²⁹

Shepstone also claimed that the new regulations represented efforts to bring about moral reform and curb what he claimed was the tendency within Zulu society to “treat the women as chattel” in denying them the right to consent to their marriages. This claim must be understood, however, alongside Shepstone's often-stated understanding that African male authority was, in fact, more benevolent than settler reformers understood.Footnote ³⁰ Such contradictory claims about the nature of authority in African society were not unusual in Shepstone's engagement with settlers with whom he largely disagreed, but whose liberalism resonated with broadly stated colonial and missionary aims of “civilization” and “uplift.”

In its effects, the 1869 Native Marriage Act was mostly successful in generating revenue and securing African male labor through the manipulation of custom. Despite its liberalizing appearance, it was not an attempt to further the autonomy of African women. While ostensibly making African women's consent indispensible to marriage, it in fact worked to harden existing lines of male authority. The prospective bride's consent was solicited only in addition to the consent of her father, uncle, or relevant male authority. Most often, the cases that came before local magistrates in regard to the consent provision did not result from instances of “forced marriage” or attempts to coerce women against their will (which occurred on occasion, and often became key to public battles between settlers, reformers, and Shepstone), but rather from instances of elopement in which a woman's desire to marry a partner of her choosing was impeded by a male guardian who withheld his consent.Footnote ³¹

The law therefore cemented the position of African women as permanent legal minors (in contrast, for example, to settler women in the colony who attained legal majority at the age of 21). With this law, Shepstone demonstrated his deference to a vision of African custom in which he believed women remained under the authority of men for their entire lives. Shepstone's policies had long brought him into conflict with the colony's liberals, who viewed his ostensibly “gradualist” approach to civilizing Africans as threatening to a colonial moral order, and the 1869 Marriage Law proved no different. They argued that Shepstone's policies institutionalized African customary marriage practices such as polygyny. An editorial in the Natal Witness published shortly after the passage of the 1869 African Marriage Law criticized its approval of African marriage practices as “but another phase of slavery,” which brought “similar curses in its train.”Footnote ³² Shepstone sought to justify his investment in the continuation of what reformers saw as “despotic personal rule” by claiming the attempt to shore up an alternative, conservative moral vision as a guarantee of customary restraint.

In this way, this first instance of written, colonial lawmaking directly targeting African marriage initiated the legal codification of African custom.⁹ Shepstone modeled much of the 1869 Act on the 1753 English marriage law—known as Hardwicke's Law—which had instituted a regulatory shift from custom to law in England a century earlier. What he was doing was turning custom into the exclusionary code of Native Law by providing customary practices with state recognition.

Sex was an implicit and important part of this, because one of the most important and unrecognized features of this law was the restriction of informal unions through elopement, sex, seduction, and abduction, which were not subject to parental consent. Cementing customary forms of parental consent as legal guardianship without which there could be no legal marriage was the most important way in which it mimicked the English Law of a century before. Even when parental consent no longer held, perpetual male guardianship over women was the foremost feature of custom recognized by the state as the authority for the control of the sexuality and fertility of women under Native law.

This effect of the 1869 law became clearer in subsequent decades. In July 1889, Isaiah Msindi of the Umsinga District of Natal presented seven cattle to Sonyangwe Tusi as lobola for Baleka Inbedwini, whom he intended to make his wife. Tusi accepted the lobola as he was adjudged to “stand in the position of her guardian” by the Umsinga Magistrate in terms of Native Law. Sonyangwe Tusi was, in fact, Baleka Inbedwini's former husband whom she had recently divorced. The magistrate maintained that, according to the 1869 Natives Marriage Act, “Sonyangwe is her natural guardian (and practically her owner) until [she is] actually married again.”Footnote ³³

This was confirmed in no uncertain terms in a case in 1900 when Secretary for the Law Department John Bird defended the right of fathers who refused consent to their daughters’ marriage by Christian rites. Bird reiterated that under Native Law “…the consent of her father or guardian must be obtained before a licence can be granted for her marriage. There is nothing…in the law which takes away the right…A parent or guardian who has such right cannot be regarded as unreasonably refusing his consent…the native law of guardianship is unaltered by marriage.”Footnote ³⁴

The key departure between Shepstone's 1869 law and Hardwicke's Act was that the English law had, in addition to establishing a formal legal mandate for parental consent, set an age of legal majority of 21 at which a guardian's consent was no longer required for marriages. Shepstone's law refused an age of majority altogether, meaning that the customary forms of male authority recognized would never legally terminate.

The 1885 age of consent law in Britain had replaced key aspects of parental consent when it asserted the authority of the state as superseding parental authority in matters of sexual guardianship. What the 1869 Natives Marriage law did in Natal, as many scholars have noted, was to establish the guardianship of male kin over women's sexuality, fertility, and all aspects of their lives and labor under Native Law. By formalizing processes of marriage in favor of male guardians, and providing no age of consent, it legally twinned sex with marriage, and gave fathers and husbands greater control over the sexuality of their daughters and wives than had even been the case under the informal customary regimes that it replaced.

Indian Custom

But the customary exception of Native law was not the only legal space administered separately from colonial law. In 1891, the Natal government passed a new, comprehensive law on the advice of the Wragg Commission, which had concluded its inquiry into the government of indentured and ex-indentured Indians in the colony in 1886. The 1891 law set provisions for all aspects of the lives of Indian immigrants, and was part of what was commonly called the Coolie Consolidation Laws: a set of laws that had begun as labor laws but that came to form a racially coded body of law that encompassed all aspects of the civil lives of Indian immigrants. The law took some effort to devise, as the Member for Pietermaritzburg W.B. Morcom noted, and was approved by both the Colonial Office and the British Indian Government.Footnote ³⁵ It set crucial limits for “Indian customary marriage” in the colony, and restrictions on underage sex were a part of this. The passage of this law coincided exactly with the furore over the Ilbert Bill in British India.

In 1890, 4 years after the British age of consent law, it was in British India that the singular characteristic of the age of consent as distinguishing the relationship between sex and marriage for colonial subjects was most clearly articulated. The British Indian government attempted to pass a law prohibiting the “carnal knowledge” of girls under the age of 13. Supported in their efforts by some Hindu reformers, the Indian colonial government asserted the protective patriarchy of the state over the customary authority—and the implied hypersexuality and effeminacy—of Indian men in the earliest years of Indian women's lives.Footnote ³⁶ As Sarkar has argued, the disproportionate attention given in the scholarship to the actions of elite Hindu reformers has obscured the reality of the overwhelming opposition to them in the name of the protection of custom, which meant that the reforms were very limited in their scope and ultimately unenforceable.Footnote ³⁷

Although the marriage of very young girls long predated colonial rule in India, the figure of the “child-bride” upon which reformers seized, was a term that depended on the juxtaposition of childhood and marriage, a product of the recent development of the new legal protections that marked childhood as a distinct stage of life in Britain.Footnote ³⁸ The age of consent act in India was an attempt to reform aspects of Hindu marriage practice; it outlawed sex with girls under the age of 12, but permitted the ritual practice of the betrothal of girls as young as infants providing the marriage was not consummated until the age of consent. Upper-caste Hindu marriage customs provided the referent for the sex that was being restricted by the new age of consent.Footnote ³⁹ These laws failed, as reformers came up against considerable Hindu revivalist antagonism defending traditional practices of marriage in terms of Hindu tradition and were largely unenforceable in a context in which colonial officials were newly attuned to arguments about nonintervention in religion and custom.

The Natal government passed Indian customary laws in 1891 with the continuing intention of returning all the Indian immigrants governed by these laws to British India by the turn of the twentieth century. Despite growing evidence that repatriation would not be entertained by the British Indian government, Natal's colonial officials were still hoping for its successful negotiation. As one official put it optimistically in 1883:

His claims were more hopeful than they were based in any kind of thoroughgoing understanding of similarities and differences in customary marriage practices between India and Natal in the lives of the tens of thousands of Indians from the length and breadth of British India who had indentured in the preceding decades. There appears to have been little sense in Natal of the legal transformations that “Indian custom” was beginning to undergo in colonial India itself in the nineteenth century (and notwithstanding the development of different regimes of religious personal law for Hindus and Muslims under the British Raj).Footnote ⁴¹

Indentured transport nevertheless provided an imperial frame of reference despite the contingencies and contradictions of “Indian” life in the colony over more than three decades, and the nineteenth-century imperial mandate of customary recognition provided opportunities for the segregationist practices of the colonial state. In addition to providing penalties for seduction and adultery, among other things, the Natal government's marriage provisions for Indians followed closely the terms set by the Ilbert Bill. It set an age of consent for Indian girls of 13, and permitted early betrothal without consummation.Footnote ⁴²

Although this may have been a liberal imperial reform measure in British India, setting an age of consent in colonial Natal was not a liberal state exercise. Instead, it was part of the further definition and maintenance of legal segregation that insured the supposed integrity of “Indian custom” (in its imperially re-formed incarnation) in the context of imperial migration by enshrining it in the Coolie Consolidation Laws.

As the age of consent debate ensued in the legislative council in 1899, the Protector of Indian Immigrants Louis Mason reminded lawmakers of the earlier age of sexual maturity and possible consummation of marriage set down in the law for Indian girls, and argued that the law for Indian immigrants should not be changed. In addition, the penalty for sex with an underage Indian girl under the Coolie Consolidation laws, which was a fine not exceeding ₤10 and imprisonment for no more than 30 days, was a world away from the death sentence mandated for sex with underage white girls.Footnote ⁴³