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Illegitimacy and family formation in colonial Cape Town, to c. 1850.

For 143 years after European settlement in 1652 the Cape of Good Hope was governed by the Dutch East India Company (VOC), a chartered company of the United Provinces of the Netherlands. (2) Founded as a refreshment station for Company fleets, bound for the VOC's eastern empire, the town which began as a fort and garden spread to fill the mountain-flanked bowl which faced on Table Bay. In 1806, as a result of the internecine conflict besetting Europe, the British took possession of the Cape station and retained it as a colony throughout the 1800s. This article investigates family formation in Cape Town through the lens of illegitimacy, amongst a population which was, for most of the period under review, part free and part slave.

The chief sources for this inquiry are the church baptismal registers and records of "hands-on" responses to the moral and other issues raised by out-of-wedlock births. Charges of seduction, defloration and breach of promise which resulted in illegitimacy are scattered among the cases heard by the VOC's Court of Justice and, after the late 1820s when the British overhauled the justice system, by the magistrates' courts and the Supreme Court of the Cape. The records of the Orphan Chamber, Colonial Office and other government departments afford glimpses of the social milieu, and the considerations which shaped policy respecting marriage and related issues such as adultery, judicial separation and divorce. Researchers have little option but to embrace Peter Laslett's appreciation of the available sources, however scant: "It is difficult to exaggerate the value of lists of inhabitants to the sociological historian. Even the bare copying out of names can tell him a great deal, if he treats the evidence imaginatively...." (3)

The first two sections which follow set the scene respecting the law which applied to marriage, concubinage and out-of-wedlock births under the Dutch VOC and, later, British rule. "Forming families at the Cape of Good Hope" compares certain characteristics of the metropoles, and of the VOC at Batavia, with the society which came into being at Cape Town. Although settler genealogy is well documented, reconstituting the families formed by slaves, freed slaves and the white or "mixed race" underclass presents many challenges. Quantifying illegitimacy is fundamental to that project and an exercise in measurement, using baptismal and marriage registers, is undertaken here. The next two sections examine the partnerships formed in and out of wedlock by Europeans with the freed slaves (vryswarte) and their descendants, and the tensions between the European marriage model and the pattern of out-of-wedlock births among Cape Town families. To conclude, those features which distinguished family formation at Cape Town by the mid-1800s, and some directions for further inquiry, are pointed out.

Marriage, concubinage and illegitimacy under VOC rule

The Roman-Dutch law, which the VOC introduced at the Cape, defined a legal marriage as that between a man and a woman of full age (or with the requisite permissions if the parties were minors), who did not fall within the prohibited degrees of consanguinity or affinity and were not pre-contracted to another partner. After an affianced pair had satisfied the Matrimonial Court on these and other points, the banns (which gave notice of the proposed union) were published on three occasions. (4) When all the conditions had been met, the marriage was solemnized in church. These requirements were the outcome of a history of give-and-take by the proponents of ecclesiastical and secular interests. From time immemorial, the essential ingredient of marriage was consent: all other requirements were constructions which moulded marriage to the purposes of church or state.

Until the late 1700s, when the right of public worship was extended to Lutherans, legal marriage was vested in the Nederduitsch Hervormde Kerk (NHK) which, for its part, reserved the privilege for persons whom it had baptized. From motives of promoting morality, and of protecting property at the point where it changed hands by inheritance, both church and state had an interest in upholding marriage and penalising out-of-wedlock births. But, from 1658, the Cape's economy depended on imported slaves who, as non-persons, were ineligible to marry. Moreover, marriage by Islamic, Jewish or other non-Christian rites lacked legal standing, and all except a handful of Christianized indigenes--the Cape herders (Khoekhoen) and hunter-gatherers (San, or Bushmen)--were excluded. (5) State-sponsored slavery and the monopoly exercized by the Reformed church subverted the goal of family formation within marriage.

Inevitably where legal marriage was broadly proscribed--and there was, moreover, a high ratio of settler and slave men to women--concubinage and fornication were rife. The Roman-Dutch law--embodied in the edicts of the mother country and of the VOC in Batavia, and in certain plakkaaten (proclamations) of the Cape's Council of Policy--made those relationships unlawful, but with little effect. It provided also that a child born out-of-wedlock was subject to the mother's power since eene moeder maakt geen bastaard (a mother makes no bastard). The putative father lacked paternal power, which was "acquired, first, by a lawful marriage." Importantly, legitimation by the parents' marriage subsequent to an out-of-wedlock birth was recognized by the Roman-Dutch law. (6) The church pressed a man who was named as father of a bastard to marry or, failing that, to provide for the child's material support as required by the law. That is to say, a man who engaged in "illicit sexual intercourse" did so "at the risk of having a child fathered upon him." (7) Here the focus will be chiefly on those persons who produced out-of-wedlock children despite the fact that they were eligible to marry on the terms which have been sketched.

In 1673 the VOC established a Wees en Boedelkamer (Orphan Chamber) which administered intestate estates and assumed the guardianship of orphaned minors with the funds, if any, for their maintenance. Its records show that children inherited from a mother's estate in equal shares, regardless of the circumstances of their birth (any benefit beyond basic maintenance from a reputed father's estate depended on such provision as he chose to make). (8) The destitute became a charge upon the state--a social ill to which unwed mothers and their offspring were vulnerable. In 1687 the VOC passed the management of welfare to the NHK: as church, Company and state were closely linked there was no impediment to this delegation of duties to the Kerkraad (church council) and diaconate. Having accepted a duty towards the indigent and helpless in their midst, those institutions developed strategies to shift the costs of the charity which was dispensed. Thus, in 1708, the VOC ordered that, prior to the manumission of a slave, the owner (or other) must deposit a sum in the Kerkraad's poor chest as insurance against the "free black's" illness or old age. The care of needy orphans, as well as of widows or unwed mothers and their dependants in the free community, involved the church in matters such as "alimentation," fostering, elementary schooling and religious education, and apprenticeships. The NHK bore this burden alone before religious freedom was extended to other Christian churches and faith communities, beginning with the Lutherans in 1779. (9)

The Roman-Dutch law treated infanticide and abortion as child murder or, in the absence of proof of intent to cause death, the lesser crime of homicide. Also actionable were offences described as "crimes of incontinence," namely, "adultery, polygamy or bigamy, rape, fornication, concubinage, sodomy and incest." Among these offences, fornication and concubinage were most significant for illegitimacy. The Dutch jurist, J. van der Linden, explained: "Under the head of fornication, as a criminal offence, we understand the conduct of those who, from a love of gain, or excess of lust, lend their body to the carnal knowledge of all persons"--a definition involving prostitutes, brothels and pimps as well, it appears, as incidents of casual sex where no material "gain" changed hands. (10) The criminalizing of concubinage was more complex:
 When two unmarried persons, by a mutual agreement, entered into either
 for life or for a limited time, live and cohabit together, though
 without being married, as man and wife, it is termed concubinage.
 Though according to the law of nature, there is nothing improper in
 this, and concubinage among the Romans was permitted, yet, according
 to our law, it is, for good reasons of state policy, prohibited, and
 for the first month that the parties thus cohabit together, a fine of
 fifty guilders is imposed on each; for the second month, an additional
 fine of one hundred guilders; and if they still continue to cohabit
 together, banishment for the term of ten years, and a discretionary
 fine. This law is properly interpreted so as to be only applicable to
 those who, after previous warning and admonition to discontinue this
 course of life, still persist therein. (11)


The "good reasons of state policy" were not elucidated by this authority but the reference pertains to the early debates respecting settlement and population management in the Dutch East Indies. (12) In 1678 the Council of Policy at the Cape condemned fornication and concubinage by VOC personnel with slaves and other heathen, noting the inevitable result--the procreation of out-of-wedlock children of mixed race (de mixtice kinderen die daar door werden aangeteelt)--and warning that offenders would be punished (swaarder en criminelijc sullen werden gestraft). When, in 1686, the Dutch soldier, Dirk van Koningshoven, balked at marrying his concubine, the manumitted slave Jannetje Bort, the Council ordered him to maintain their children and forbade him to marry anyone else. The fact that the Council took up the case appears to have owed much to Bort's access to officialdom--she having been a servant to the governor, Simon van der Stel. (13)

For the most part Cape Town's men and women, then and later, cohabited ad libitum without interference by the government and its strongly worded decrees. Prior to claiming the Cape of Good Hope, the VOC had known little but discouragement as a result of efforts to impose its notions of proper sexual relations on Company servants in Dutch Asia. An intricate web of identities was in the making there, based on procreation in and out of marriage amongst a complex ethnic mix. (14) Where the VOC was unable to enforce behavior which conformed with the law, the church was left to promote morality as best it could. At Cape Town, church members were liable to the censure of the NHK and, eventually, of other churches.

Marriage, concubinage and illegitimacy under British rule

The procedures for contracting a legal marriage which were established by the VOC were altered on a piecemeal basis after its demise in 1795. A decade of transitional government--the first British occupation (1795-1803) and the brief return of the Dutch (the Batavian period)--came to an end when Britain recaptured the Cape in 1806. The British promptly repealed the clauses of two Batavian ordinances which permitted civil marriages--the event to be solemnized, as previously, by the ordained clergy of the settlement. For the rest, they retained the existing systems until their possession was confirmed by treaty in 1814, after the Napoleonic wars. From 1818, betrothed couples could dispense with banns by purchasing a special licence. (15) Marriage by licence had a long history in Britain, thus one may surmise that the governor, Lord Charles Somerset, had been under pressure from his countrymen to permit that convenient (if more expensive) system. (16) In 1829 the legal age of majority "for all persons whatever" was lowered, from 25 to 21--reducing parental control respecting their children's right to marry while increasing the affected youths' responsibility for pledges made. The most far-reaching measures pertained to the marriage of slaves. Ordinance 19 of 1826 facilitated legal marriage and forbade the separation of young children from slave mothers. The Order-in-Council by the Court at Windsor of 7 September 1838 (in force from 1 February 1839) was precipitated by the abolition of slavery. That order glossed the slaves' former status as non-persons who, until the 1820s, had been barred from legal marriage with a glib reference to "the increased desire for lawful matrimony" which, it was thought, would flow from their incorporation in the free community. (17)

Their pragmatic acceptance of local practices aside, the British suzerains were heirs to a different history with respect to sexual relations, and the laws pertaining to marriage and inheritance. In British law a bastard was "nobody's child": "Under the ancient legal doctrine of Filius Nullius, a bastard was ... not part of the family; it was a community responsibility...." That doctrine, which contrasted strongly with the Roman-Dutch law (eene moeder maakt geen bastaard), and the principle that the parents' subsequent marriage could not legitimate an out-of-wedlock child would have altered the options available to unwed parents at the Cape. These are, indeed, the grounds on which Ginger Frost declared that "England's bastardy laws were the harshest of Europe." (18) Significant too was the doctrine of primogeniture which conferred a privileged status on firstborn sons at the point of distributing inheritance. A Cape official pondered, in 1822: "It is a grave question to decide, whether the Dutch law should still continue to be in force through the colony; particularly as to the disposition, after death, of the real and personal property of British-born subjects and their descendants." An investigation of over 600 wills has revealed that, in fact, Britain's burgeoning middle class was finding reasons to prefer partible inheritance above primogeniture--an arrangement which served the purposes of a landholding elite. The system of an equal division of property among the children, male and female, of a legal marriage was retained at the Cape. (19)

In For Better, For Worse, his investigation of four centuries of British marriage, John Gillis remarked: "For most of the eighteenth century and until the rise of the joint stock company in the nineteenth century, the family was a crucial means of capital accumulation and economic enterprise. Marriage played a central role in mobilizing wealth and power, and the control of courtship ... remained essential" (the circumstances which had favored primogeniture). But conditions were vastly different for the populace at large: "Although the church had been trying to control marriage since the twelfth century, it had been only partially successful in doing so ... Marriage [persisted as] ... a social drama involving family, peers, and neighbors...." Little or no stigma attached to prenuptial pregnancy or, where no legal marriage took place, to the children born of common law marriages. (20) In 1753 Britain's parliament blocked the "old rights of betrothal and clandestine marriage," that is, the rights of sexual access which followed on a promise of marriage and the free-and-easy folkways which dispensed with the price attached to a licence or the publication of banns. The Hardwicke Marriage Act--which has been called "a first step in the struggle of the rising middle classes in Britain to impose their norm of marriage on the rest of society"--decreed that only marriages performed by ordained clergy of the Established (Anglican) Church, complete with banns or licence, had legal standing. As opponents of the act had anticipated, prenuptial pregnancies and common-law unions, "whose offspring were recorded as bastards," increased. (21) Under these new conditions, the poor made shift--some men by "separating paternity from husbandhood." A woman, when legal marriage was out of reach, ensured that her sexual partner's identity was widely known; a man, if he could not afford to offer marriage and a home, might be father enough to undertake his child's support. Neither partner was, as a rule, displeased, for the unwed status yielded some advantages to both. Their behavior illustrated what has been called "the pragmatic heterosexuality of the London poor"--a response to circumstances true of Cape Town and, no doubt, elsewhere. (22)

Crucially, the Cape lacked a Poor Law such as that in force in Britain, in various forms, from 1576. The British act made bastards a community responsibility by supporting the unwed mothers, but it did so in a way which aimed to cover costs. When such women fell on poor relief they were brought before two magistrates and required to name the father under oath. A man who was "affiliated" to an out-of-wedlock child (the filius nullius) was ordered to pay maintenance to the mother, who shared the burden as the bastard's caregiver. (23) The public exposure of immorality which compliance with the Poor Act entailed raised a concern that women might be more inclined to conceal a pregnancy and dispose of an unwanted child. That anxiety was met in 1624 by criminalising infanticide (the Act to Prevent the Murdering of Bastard Children). Angus McLaren has traced the steps by which the state intervened to control the resort to abortion and infanticide--by single women who faced job loss, penury and disgrace and by married women who were overwhelmed by family size. In 1803 the common law crime of abortion was made a statutory offence by an amendment of the 1624 act. (24)

As seen, the Court at Windsor issued a new marriage order in 1838. In conformity with the Hardwicke Marriage Act of 1753, the order repealed the provision of the Roman-Dutch law which permitted the court to compel a marriage where a breach of promise could be proven. The way in which that imposition of British jurisprudence impacted on the practices and mores of the Dutch colonists has been explored by Kirsten McKenzie. Where "female honour" was at stake, money damages appeared as a poor substitute for "specific performance," especially when the legitimation of an out-of-wedlock child was sacrificed. The order also abolished the Matrimonial Court, but retained the "essential requisites" of the existing law. Of particular relevance for this investigation is the recognition of de facto marriages among the ex-slaves and the legitimation of the children of such unions who had been born in slavery. (25)

Forming families at the Cape of Good Hope

The focus thus far has been on the Cape of Good Hope's dual legal heritage respecting the regulation of reproduction in and out of wedlock. But to what extent were the family models typical of the European settlers and others' places of origin replicated at Cape Town?

In her analysis of governance of the early modern Netherlands, Julia Adams named chartered companies like the VOC among the corporate bodies which enjoyed a mutually beneficial symbiosis with the republic's rulers, the "regent patriciate." That cluster of families, which vied and collaborated over the power accruing to the "familial state," gave close attention to marriage and the inheritance of property, including their access to public office. Adams remarked: "The normative definitions of who is included in families and who may join or head them vary, but within institutionalized limits." That flexibility is echoed in a discussion of the English middle class: "... the definition of the family was never rigid." In the case of the Dutch patrimonial elite, careful monitoring of genealogy and of female virtue, in the marriage market, were factors crucial to inherited privilege, while the betterment strategies of the cross-Channel middle-class might rely on the inclusion of well-placed extra-family friends as well as of successful members of the wider clan. Donald Haks has provided a workmanlike account of the factors important to the choice of marriage partners, the incidence of illegitimacy and the dissolution of marriages in the Dutch republic during the seventeenth and eighteenth centuries. His study, which embraced the social classes from which the VOC drew its recruits, affords a glimpse of the mindsets likely to have been shared by many early settlers. (26)

The colonies presented very different conditions for establishing families: "Colonial cultures were never direct translations of European society ... colonial projects and the European populations to which they gave rise were based on new constructions of what it meant to be European." (27) The consequences for the colonized were equally profound--as they were, also, for those who joined the mix as convicts, banished persons and slaves. One's position in Cape society was, in the first place, defined by the VOC's "legal status groups," namely, the Company servants, free burghers, indigenes and slaves, all of whom were subject to status-specific laws. (28) As seen, those distinctions had immense implications for family formation by the unfree. But, as well, the right of the VOC's employees to marry locally, and to be released from service to found families in the settlement, was strictly controlled. In 1664 the marriage of a Khoekhoe woman, Krotoa ("Eva"), and the Company servant Pieter van Meerhof was sponsored by the Dutch commander but, as that union failed to serve the purposes foreseen for it, further pairings with indigenous women lacked official support. Whether "locally-born" is construed to mean the indigenes or the Cape-born slaves and descendants of slaves, Cape Town did not fit the pattern established at Batavia where "the social network of men" revolved around "relationships with a locally-born woman and her family." (29) The situation of emancipated slaves ("free blacks"), who became a fifth status group at the Cape, will be discussed.

Although Cape Town in the eighteenth and early nineteenth centuries shared little of the urban character of European cities such as London, there was some correspondence in the make-up and mores of their populations. Nicholas Rogers concluded from a study of eighteenth century Westminster: "Illicit sex between men and women of the servant and artisan class was not usually ... casual ... Few illegitimate pregnancies resulting from lower-class unions were the product of one or two encounters." Such information is difficult to come by in local records and the sense that this assertion holds true for Cape Town is impressionistic. In both societies the evidence for prostitution in the context of out-of-wedlock births is sparse. Britain's unwed mothers seldom--and for good reason, no doubt--described themselves as prostitutes when seeking poor relief: those who were so identified were generally adolescents, and often orphans, who lacked family or community support. (30) There were early reports at the Cape "of slave prostitutes wearing items of clothing obtained from soldiers." Solid evidence dates from the 1830s when the records of Cape Town's newly-formed police reported instances of women "having connection with soldiers," in precincts adjacent to the garrison, and of houses of ill repute in the poorer quarters of the town. But the impact of that activity on out-of-wedlock births is unclear. (31)

A point of interest for a comparison of other cities with Cape Town is the importance of soldiers and sailors with respect to illegitimacy, whether in stable or in casual relationships. A study of London's Old Bailey records in the eighteenth century suggested that they did not represent "the most extreme forms of casual cohabitations and clandestine unions," and Rogers found that although, at one stage, 18 percent "of cohabitations were with soldiers," that percentage conformed with the level of "informal consensual unions" among the "lower classes" overall. Many Cape Town burghers and free residents were exsoldiers and sailors on discharge from the VOC and, after 1795, men from British regiments. It followed that the military and ex-military were prominent in the recorded incidents of concubinage, and the creation of female-headed families which subsisted with or without a male partner's regular presence and support. (32)

Laslett observed: "In the study of family life, as with all other consistencies of behaviour, the irregularities count for a very great deal to the observer ... We can only get to know about the effectiveness or often even the existence of a rule from the records of what happened when this rule was breached." Although "the troubled parson might have shaken his head when offered a bastard to baptize," he seized the chance to expound the "social rule" which had been violated. Through their pre-eminence with respect to moral regulation and to poor relief, the NHK and other churches which gained a foothold at the Cape were strategically placed to uphold the rules and--whether or not an offender was taken to court--to censure and chastise. (33)

Measuring illegitimacy at the Cape

If it is claimed that Cape Town exhibited a high proportion of out-of-wedlock births among the population as a whole--the free, as well as those in slavery--what precisely does that mean? Laslett compared the usefulness of computation by rate or ratio: "rate" measures "the number of irregular births as a function of the women at risk, generally those unmarried, widowed or divorced aged 15 to 44" but it cannot, for example, include the children born to married women as a result of extra-marital relationships; "ratio" refers to "the percentages of baptisms or births described as illegitimate in our sources" but, like rate, its accuracy is undermined by hidden demographic variables. These problems complicate an attempt to determine whether sectors of a society showed a "propensity towards illegitimacy." As no census was carried out until 1865, the sources for Cape Town in the period discussed lend themselves more readily to the calculation of illegitimacy ratios. Laslett concluded: "We ... believe that the ratio alone is adequate for our overriding object of setting out the record as to the frequency with which illegitimate children were born in the past." (34)

The early records of the NHK did not reliably make clear that a baptismal candidate was onegt (born out of wedlock) until 1724, when four such cases (among 63 baptisms) were noted. In her discussion of slave reproduction, Patricia van der Spuy observed: "There was no requirement for slave registers in the eighteenth century ... We quite simply do not have the kind of information needed to determine either the birth rate or the survival rate of slave infants." (35) This lacuna forms a gap in any reckoning of illegitimacy during 180 years of Cape slavery (1658-1838). Unknown numbers of bastards born to members of the free population died soon after birth or were not presented for baptism, and thus were not counted in the church records. That figure may have been low in cases where one parent was a Christian, since the church sought actively to bring those children to the font. But when such infants were domiciled with a parent (usually the mother) whose "atrocious beliefs" risked a "profanation" of the rite, they may--like the children of two free but "heathen" parents--have been excluded from baptism, and hence from the records which comprise the most important resource. The margin of error is increased by the fact that an out-of-wedlock birth was not always noted when the parents married shortly before a christening. Whenever several children were presented at once, there is room to suspect that the parents' marriage followed all or most of the births. (36)

The early 1700s saw a new zeal to reform the rough and ready lifestyle of many Cape inhabitants. Simultaneously with the introduction of the term onegt (or onecht), the expressions zoogenaamde, genoemde or zoogezegde vader (so-called, or reputed father) were employed in the NHK's baptismal registers, reflecting a more systematic attempt to hold a putative father accountable for the child's support. Such labelling lent weight to the efforts of the church (and, no doubt, of some unwed mothers) to legitimate the child by marriage. To give one example: Cornelia Adriana, the out-of-wedlock daughter of Willem Lekkerlant and Cecilia Davids van de Kaap, who was baptized in 1726, was legitimated by her parents' marriage ten years later, an event recorded in the same register by the addition of a note. (37) The toponym, van de Kaap, signified a Cape-born slave or free black. Its use in conjunction with the surname, Davids, suggests the latter: official and church records tenaciously recorded the status signifier, "van de Kaap," after individuals had adopted the settler (or versions of settler) surnames which were a step in their identification with the free community. Lekkerlant and Davids's marriage was one of some 1300 legal unions contracted during the VOC period by black women, or women of "mixed race," with European men. (38) The records suggest that, in many cases, one or more pre-nuptial children would have been legitimated by those marriages.

It is challenging to account for fluctuations in the ratios of illegitimacy over time. Noting that Western Europe differed from societies where the early and near-universal marriage of women was the rule, investigators have sought to understand how far the "changes in illegitimate fertility and changes in the timing and incidence of marriage" may have coincided. With respect to England:
 It might have been thought likely that ... when marriage came late in
 life and many women never married, illegitimate births would have been
 frequent and those who married would be unusually likely to be
 pregnant; and that ... with earlier and more universal marriage the
 swifter transition to the married state would have reduced both
 illegitimacy and pre-marital pregnancy. The opposite was the case.
 Whatever constrained men and women to marry late also constrained them
 to avoid extra-marital intercourse, but when earlier marriage was
 countenanced, inhibitions on intercourse outside marriage were also
 relaxed. (39)


Factors such as improvements in mortality and/or in real wages have been proposed to explain why population growth rates showed increases at times when general fertility was moderate or in decline. It is open to question whether explanations such as these apply to the Cape of Good Hope.

The NHK baptismal registers give an impression of significant fluctuations in the rates of illegitimacy from year to year. How may one reconcile the 35 bastards who were baptized in 1762, of a total of 195 baptisms (17.95%), with the fact that none was recorded in 1763 and 1764; or the six, of 247 baptisms (2.4%), in 1782 with the 56 of 317 (17.6%) in 1786? It seems unlikely that this type of data was suppressed at any stage: Jonathan Gerstner cited the example of an eighteenth century minister who reported positively on the state of the church "although in one year one-quarter of the children he baptized were born out of wedlock" (Gerstner may refer to 1744, when 23 of the 110 baptized infants were onegt). (40)

In truth, the baptismal records for a given year shed little light on that year's out-of-wedlock births. In the case of bastards, months or years might elapse between their birth and doop: examples abound of bastard siblings baptized in a batch. Where the ages of bastard children presented for baptism were noted, as happened sporadically from the 1730s, it is possible to assign a year of birth: the four children of de zoogesegde vader Harmanus Claasen and Johanna Salomonse van de Caab, who were baptized in 1775, ranged in age from 10 to three. But a decade later Rachel van de Caab (and the putative father, Fredrik Adriaanse) presented five children whose ages were not recorded. (41) Not until the 1800s was the date of birth recorded as a matter of course.

If a year by year tally of out-of-wedlock baptisms conveys little sense of trends in illegitimacy, what of comparisons by decade? Between 1770 and 1779, 4.9 percent of children baptized by the Cape Town clergy of the NHK were recorded as illegitimate; during the decade 1780-1789, the percentage more than doubled, at 10.5 percent. The state required that the NHK made every effort to ensure that fathers presented their children for baptism--a tenet which, at various times, saw numerous exceptions: between 1770-79, six children without named fathers (two were siblings) were presented and, of these, three appear as special cases; between 1780-1789 there were some 100, with more than half of those in the final three years. (42) No directive relevant to that phenomenon has come to light but the convergence of two factors in the latter period suggests an explanation.

The Anglo-Dutch war of 1780-84 brought a French fleet and several European regiments to assist the Dutch should the British attack--stimulating a boom in Cape Town's social and economic life. By the time the Swiss Regiment Meuron was redeployed, in 1788, 14 of its officers had taken local wives; although "the amatory adventures of the NCOs and men are not recorded" it must be supposed that "they too sought out sexual partners" (43)--a scenario conducive to an increase both of absent fathers and of out-of-wedlock births. In the normal course of events, the reflection of such births in the NHK's baptismal registers was contingent on elusive factors but, soon after Cape Town's "Little Paris" phase, the church experienced a burst of energy in the person of the Reverend Helperus van Lier. On his arrival in 1786, Van Lier--remembered for his strong convictions with respect to religious "rebirth," and for evangelising among the slaves and other long-neglected groups--embarked on a campaign of house visits and weekly "catechetical instruction." (44) The upsurge of bastards who were presented for baptism in the late 1780s, many without named fathers, appears to reflect not just the recent influx of single men but also the inclusion of a segment of society which had not been consistently reached prior to the advent of Van Lier.

The significant increase in the numbers of out-of-wedlock births coincided with the presence of non-VOC regiments, whose members were seen as under less than usual restraint. Nevertheless, identification of those men as a subset of bastard-begetters must be treated as speculative. The mothers, on the other hand, are readily shown to represent a specific group--namely the freed slaves, known at the Cape as the vryswarte or "free blacks," and their descendants. Of the 80 or so mothers of out-of-wedlock children who were baptized between 1770 and 1789, where the father was unnamed, some 67 were identified by toponyms (most but not all van de Kaap). A high proportion of the unwed mothers who were linked in the records with zoogesegde vaders was similarly identified. Laslett has said: "... the history of bastardy in England may be partially understood on the hypothesis that something like a sub-society of the illegitimacy-prone may have existed over time." (45) This hypothesis needs to be explored as part of any study of illegitimacy at the Cape of Good Hope.

European settlers and Cape Town's vryswarte

The Cape's tax roll (opgaaf) for 1682 indicates that two only of the 89 men (among the near-300 European settlers) had married free black women. In 1705, 3.6 percent of married European men had free black wives; by 1731, that percentage had declined to 2.3 percent, with six of the nine couples living in Cape Town. (46) Unknown numbers of European men cohabited with slaves, free blacks and, as time went on, the growing number of slave-descended women. By the early 1770s, the 350 free blacks deemed to be in Cape Town formed 15-20 percent of the town's burghers (free citizens), although they were no more than 8 percent of the population as a whole--reflecting the fact that most resided in the Cape's largest town and busy port. Nearly all the vryswarte were of eastern origin: Hans Heese has shown that fewer than one percent of African slaves became free blacks in the eighteenth century. (47)

The NHK registers reveal the steps by which some, at least, of the vryswarte and their descendants founded families in the free society, in and out of marriage. Free black women who formed partnerships with Europeans became more visible, in general, than free black men. The example of Jannetje Bort, who bore several children as Dirk van Koningshoven's concubine and others as his wife, was cited above. An arresting case of early concubinage and its sequel was that of Maria Everts, the daughter of two Guinea slaves, with the settler Bastiaan Colyn. Everts' father was the first freed slave to be granted land at the Cape, and she herself became a landholder of note. Her early marriage to a freed Angolan slave named Gracias (or Jackie Joy) was brief. After they were denied a divorce (in 1680), she formed an enduring partnership with Colyn of whom little is known but whose resources appear to have been much less substantial than her own. The children whom they baptized were not legitimated but they bore their father's name. (48) As will be shown, the later generations of Colyns displayed a range of outcomes with respect to family formation.

The partnership of Christiaan Roelofse from Norway and Johanna Petronella Heymans van de Kaap illustrates a woman's passage out of slavery and the founding of a family, in and out of marriage, by her association with a European. In 1749, "Pieternella Heijman Bastert Hottentottin"--a description signifying that she was the offspring of a slave and a Khoekhoen--baptized her out-of-wedlock daughter, Elena Pieternella, in the country town of Stellenbosch. No father was named. In 1756, when she was cited as Petronella van de Caab, she married Roelofse who was, by then, the father of other daughters and a son. After their marriage (which legitimated their joint existing family) they produced six more children. (49) It appears that some, at least, of the ten children were not presented for infant baptism: in 1772 their vrijgeboren (freeborn) daughter Catharina Petronella's baptism, as an adult, was recorded in the register for VOC and privately owned slaves. One week later Catharina's out-of-wedlock child by Barend Barendse was baptized and entered in the separate register for "Christian" children. (50)

In 1777 the adult baptisms of two more sisters were recorded in the same slave register. The first of these, Maria Helena (apparently the person cited earlier as Elena Pieternella), baptized an out-of-wedlock child by Hendricus Bartels (of unknown origin) in 1780; after five years she presented two bastards by another father. Christina Elizabeth bore a bastard by Jacobus Bruyns whom she later married (she produced three more out-of-wedlock children after Bruyns died). In 1782 their brother, Hendrik, and Elisabeth Kras (or Grasse) presented an eight-year-old bastard son for baptism. At the same time, Kras baptized a three-year-old child by another father, Willem Barteling. Both of Kras's families received the charity of the church (Behoort onder de Diaconie alhier). Meanwhile, the Roelofse's daughter Cornelia had produced a child whose father was not identified. A fifth sister, Johanna Magdalena, and Jacobus Petrus Ryno baptized an out-of-wedlock child in 1786. Johanna was married twice, but not to Ryno. Both her husbands were Germans, as Ryno (Rynhoud?) may have been as well. (51)

From this narrative, and others like it, one gets a sense that strong patterns of family formation outside marriage had been established in Cape Town at an early stage--perforce among the slaves, but also among the free inhabitants. The failure of attempts--notably, in 1678 and 1718--to curb concubinage and loose living has been well documented. According to Robert Shell, the "explanation for the relatively high proportion of adult manumissions in the ... [first 50 years of European settlement] was the manumission of concubines for marriage." (52) This did not, however, signify a high proportion of married relationships overall. In his study of selected opgaaf (tax) returns for the Cape as a whole, Leonard Guelke found that, in 1731,59 percent of single men in Cape Town would never marry. This was so despite the fact that the male-female ratio was more favorable to prospects of a legal marriage there than in the hinterland, where the percentages of single men were lower. Guelke suggested that the anomaly may have been due to the greater difficulty of "establishing independent livelihoods" in Cape Town than on the frontier, whose men "were 'robbing' other areas of their marriageable women." Then and later, Cape Town's single men would have sought access to sex in casual or more durable relationships. When concubinage was the choice, in lieu of marriage, the attempt to explain it may get no further than at Batavia, in the 1600s, where it was found that "every couple had its own reasons." (53)

As shown, the majority of slaves who gained their freedom prior to the mass emancipation of 1838 settled in the Mother City, where their descendants cohabited with and sometimes married members of the European community as well as forming partnerships among themselves. Guelke concluded that, as the eighteenth century wore on, "strong racial ideas" were taking hold in the rural and frontier regions of the colony. In less race-conscious Cape Town, "a white settler lost social position in marrying a free black woman, but he remained part of settler society; elsewhere, it seems that a woman had to be white to be considered an eligible marriage partner." (54) The motive for providing details of the reproductive history of the Roelofse-Heymans family has not been simply to trace its "racial" lineage but to throw light on out-of-wedlock births as a phenomenon of some importance to the issue of family formation in early Cape Town.

Illegitimacy and the European marriage model at Cape Town, to c. 1850

In the course of two hundred years of European settlement, Cape Town grew from the initial encounter between a Dutch station of the VOC with mobile groups of indigenes into a town of some 24,000 persons of diverse origins, under direct British rule. (55) During that time the Cape became a slave-importing colony, until 1808 when Britain halted its traffic in slaves; it remained a slave-dependent society until the 1830s when Britain abolished slavery throughout its empire. As a result of the long history of voluntary and involuntary immigration, the peoples of Europe, Africa and Asia were all strongly represented in Cape Town. Despite the hegemonic status of the Europeans--as witnessed by the dominance of their civil institutions, their economic policies and interests, and the Christian religion--counter-strains of thought and practice were discernible. Most striking was the growing influence of Islam which had arrived with the political prisoners and slaves from the Dutch empire in the east. By the early 1800s Islam was attracting numbers of slaves and former slaves. (56)

This diversity poses certain problems for a discussion of family formation in Cape Town. It would be comparatively easy to use the Christian ideal (represented, for many years, by the NHK ideal) as the yardstick when evaluating what is known about reproduction in- and out-of-wedlock. Slave women of eastern and African origin cohabited with European men; when a marriage ensued, they were baptized and married according to Christian rites. The families resulting from such unions conformed (on the surface, at least) with the European model of monogamy within a nuclear family. But we know little of the mindsets which those persons brought to sexual and marital relations, as those were defined by church and state. Factors traceable to customs and legal systems which were intrinsic to the cultures from which the slaves had been wrenched may have played a part in the patterns of illegitimacy which configured family life.

Given the mix of particulars and ambiguities which characterized Cape Town society, what in practice made a "family"? Respecting the slaves, John Mason has said: "By 'family' I mean a solid and loving partnership among persons who are bound by the rights and duties accruing to kin." He went on to say: "Most slave families were single parent families; most of these were matrifocal." The "married" pair "often belonged to different masters" and so lived apart, but in a partnership conforming with the spirit of a marriage. The result was a "core family," consisting often of a mother and her children, which "might be extended vertically through generations or horizontally to incorporate kin by blood and marriage." (57) Family stability was enhanced by the amelioration policies enacted in the final years of slavery--although, perhaps, less effectively than was claimed, owing to the deference paid to slaveholder interests at the point of implementation. The amelioration measures, which promoted the European model of the "nuclear monogamous family," also structured the discourse at the stage of the apprenticeship and full emancipation of the slaves (1834-38) when the nuclear family was promoted as the foundation of a free society. (58) But patterns established over many decades were not erased by amelioration and emancipation. Cape Town was home to many female-headed households--"core" families whose siblings and half-siblings were in vertical and horizontal connection with the patriarchal families of the European settlers as well as with the (equally traditional) families which were structured like themselves.

Illegitimacy occurred also among the ruling class of merchants, professionals and government officials who were of European origin or (mainly) European descent--a fact remarked by a Briton of rank during the first occupation. Her editors note:
 Fully aware as she was of the seriously flawed moral code and
 behaviour of the ruling class, Lady Anne [Barnard] was also fascinated
 by and appalled at the promiscuity of colonial women and she returns
 again and again to record the endless liaisons, adulteries and
 depraved behaviour of more than a few of the colonists. She is amused
 by the successive episodes in the unusually active love life of Mrs.
 Baumgardt, wife of the Collector of Land Revenue and a member of the
 Court of Justice ... She bore a child to Admiral Elphinstone (later
 Lord Keith), who had commanded the fleet sent to occupy the Cape in
 1795. Later she had a boy by General Dundas, and when he married she
 took up for a time with Admiral Sir Roger Curtis ... who seems to have
 regarded her as a sort of perquisite of his office. (59)


Those "colonial women" moved in the circles which were close to Lady Anne. Below that class were the lower ranks of the garrison--whose morals also were the target of her critical, if witty, comment (60)--and the townspeople who included shopkeepers, artisans, housewives, laborers, laundry washers and birds of passage from passing ships or from Cape Town's rapidly expanding hinterland.

The descendants of Maria Everts and Bastiaan Colyn personified a range of trajectories in the sense of status outcomes--the more telling because they originated in the union of the daughter of manumitted African slaves and an obscure European immigrant. Everts' father held land in the heart of Cape Town and she became a landowner in her own right. She was described as a black woman of commanding presence and generous hospitality. Her progress through life exemplified the power of material wealth to offset an unpromising parentage, and to facilitate the social advancement of a family. Hans Heese cited the Everts case as one where money was able to buy whiteness (witheid)--a proposition which begins with the centrality of skin color. It has, indeed, been persuasively argued that the Dutch, and later British founders of Cape Town imported a "somatic norm" which privileged fair complexions in the construction of a social hierarchy. Possibly the vagaries of genetic descent--some children fair and others dark--played a now-hidden part in the life directions of the families formed by the heirs of the Everts-Colyn concubinage. (61)

Historians of the Cape agree that the society was relatively "open" with respect to "racial" difference when the settlement was new. The history of Colyn and Everts' elder son bears out that claim. In 1718 Johannes Colyn became the proprietor of "Klein Constantia" by his marriage to Elsje van Hoff who, as the widow of Johan Jurgen Kotze, had come into possession of the farm. Van Hoff was also of "mixed race"--her father from Norway, her mother Margaretha Janse van de Kaap of whom little is known except that she was of slave or part-slave (most likely, Asian) descent. The property (then rural but now part of greater Cape Town) was a segment of the estate which had belonged to Governor Simon van der Stel. This turn of events placed Johannes Colyn in the neighborhood of leading families, notably the Cloetes: soon widowed, he married Johanna Appel whose mother was a Cloete. The grandson of two Guinea slaves had reached a pinnacle of Cape society. "Klein Constantia" remained in Colyn family hands for over a century, until 1857. (62)

Colyn's siblings and children followed strikingly divergent paths. Thus in 1750 his eldest son, Evert, and six children occupied a house belonging to the NHK. The deacons were shocked by a report that he "allows his children to grow up wild, leaving them to run about destitute and naked." For that and the fact that he beat them "most improperly, going beyond all bounds," they were removed from Evert's care. Apparently Evert Colyn lacked the will and the means to support his children--three of whom had been born prior to his marriage to their mother in 1739. The allotment of a church-owned house had probably been designed to keep the family under one roof but, afterwards, the diaconate placed the children with caregivers, as was usual when the poor, deemed to be irresponsible, required relief. (63)

This discussion has focused on families as opposed to households. A wealthy Cape Town household was likely to include a large nuclear family plus visitors and numbers of slaves, say, six to ten men, more or fewer women, and their children. Middling and poor households might consist of two or more co-resident families (homeowners and boarders), single and single-parent boarders of both sexes, children, the elderly and young on poor relief, short-term visitors from passing ships, the overflow of slaves from better-off homes, and so on. (64) The crowding and the mix of unattached women and men suggest an environment conducive to non-marital sex and out-of-wedlock births.

Conclusion

Ann Stoler has described the impact of the "company policies on 'family formation' that restricted marriage and condoned concubinage for some while encouraging marriage for others" in Dutch Sumatra. Though its policies, in the Company era, shared the same source, the Cape's demography, terrain, isolation and weak economy combined to produce a colonial society which differed significantly from that of the Netherlands East Indies. Notwithstanding its system of "status groups," race and class were less minutely defined at the Cape than in the east where "European" included not only those who qualified by birth but a range of others who, though less than equal, were "grouped in the European category." As in the East Indies, few men arrived from Europe with a wife--a feature true also of the early influx of Britons to Cape Town, over and above the ever-present garrison of soldiers. The government did not, however, employ its power over families to condone concubinage for selected settlers, but upheld marriage as the model for free persons of the colony.

The family has been called "the quintessential unit of the private sphere"--that area of life most resistant to intrusions by the state. Historically, its defenses were most readily breached when the welfare of children could be shown to be at stake through poverty, or as the victims of abuse and neglect. In Britain the Poor Law had empowered the state to cross "the boundary of the family." Families at the VOC's Cape settlement took their shape from the Dutch law and practice, refracted in some measure from Asia and moulded by local circumstances. Authority was vested in the NHK, an arm of the state, to intervene in family life by censuring immorality and pressing parents to legitimate bastards or, failing that, to see to their support. Incorporation in the British empire coincided with the gradual amelioration of slavery, and the attention given to slave families. It would be useful to our understanding of illegitimacy and family formation to compare the effects of Britain's emancipation and concurrent marriage enactments at the Cape of Good Hope and, say, in its West Indian colonies. (66)

For a time, some researchers were motivated to suppress the evidence for illegitimacy and racial mixing at the Cape. A book celebrating Afrikaner families, published in the heyday of apartheid, cited Bastiaan as the Colyn's founding father but declared his wife to be unknown (Die naam van sy eggenote is onbekend)--despite the fact that information about the mother of his children is easily found. Such evasion ended with the publication of two books by a father and son, Johannes and Hans Heese, which showed the extent to which marital and extra-marital relations between the "races" had permeated families in the "white" community. In similar vein, prenuptial pregnancy and illegitimacy might be concealed. J. Heese observed: "In [C.C.] De Villiers's Geslagsregisters the marriage date is often ommitted [sic] if the baptism of the child (or children!) took place on the same date." (67)

Explaining illegitimacy, and accounting for its consequences, is a work-in-progress. Explanations which are available to date display marked variations, depending on the time and place. Rogers concluded that illegitimacy in eighteenth-century Westminster (London) should be seen as the "product of failed courtship or the breakdown of consensual unions" in a context of "unemployment, war or premature death," rather than as an outcome of the "newfound [sexual] liberation" said to have characterized the era. (68) Laslett has been at pains to weigh the evidence for the existence of an illegitimacy-prone sector of British society, which shared "a counter-attitude to sex, marriage and procreation." With that investigation incomplete, he was yet able to point out "an ongoing, descent-related sub-society, discernible in the same communities over several succeeding generations." But, notwithstanding a measure of "serial polyandry"-like behavior, most out-of-wedlock births were once-off events in the mothers' reproductive history. Interestingly, Laslett looked at slave studies in the United States for a comparison of "familial conduct" in the "white Anglo-Saxon world" with that of the slaves of America's south. Plantation records afforded evidence for Anglo-Saxon-style husband-and-wife-headed slave-family units. But the possibility that those slave families experienced unrecorded "husband" substitutions--for reasons beyond the individuals' control or, alternatively, by choice--could not be ruled out. (69)

The Colyn and Roelofse family sagas stand for many others which support the proposition of a causal link between the facts of slavery and a proclivity among the freed slaves of the Cape to out-of-wedlock births--a tendency perpetuated by generations of descendants. More difficult to assess is whether the institution of slavery, which proscribed legal marriage, is sufficient explanation in itself or if, and to what extent, the cultural memory of the African and Asian slaves played a part in the patterns of family formation. Whatever the case, the records attest to a strong overlap of slave ancestry and illegitimacy. Laslett's finding, with its sense of subsequently-avoided error, that most British mothers of bastards baptized only one such child echoed faintly at the Cape in the court cases where fathers acted for wronged daughters and demanded reparation by alleged betrayers.

Illegitimacy was an economic and a moral issue for both church and state. The church applied strict but pragmatic remedies with respect to sexual misconduct amongst its membership; the state appeared, for the most part, to hold in abeyance its power to act against the crimes of concubinage and fornication, unless they were too flagrant to overlook. The assertion that, as the colony matured, a European in Cape Town "lost social position" as a result of "racial" mixing--as was already the case elsewhere in the colony--implies a concomitant distancing from the stain of illegitimacy. Church and state concurred in excluding bastards from a notable philanthropy, namely, the Orphan House which opened in Cape Town in 1815. Despite the persistence, in the 1800s, of concubinage by some prominent men in commercial and professional life, the records suggest a growing discretion in the sexual conduct of Cape Town's elite and its expanding middle class. (70) This, and the evolution of family patterns among the poor and persons of "mixed race," are questions for an investigation of family formation in Cape Town in the latter decades of the nineteenth century.

7700 Rondebosch

Republic of South Africa

ENDNOTES

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. Minnie Lewis contributed to this article though her research in the Nederduits Gereformeerde Kerk archives and her translations of documents from Dutch and Afrikaans. My thanks also to Prof. Sandra Burman, Director of the Centre for Socio-Legal Research, for helpful guidance. The valuable comments and suggestions of JSH readers are gratefully acknowledged.

2. The Dutch East India Company (Verenigde Oost-Indische Compagnie) is referred to as the VOC. A brief history of Cape Town may be found in Sandra Burman and Patricia van der Spuy, "The Illegitimate and the Illegal in a South African City: The Effects of Apartheid on Births Out of Wedlock," Journal of Social History, 29, 3 (Spring, 1996): 613-35.

3. Peter Laslett, Family Life and Illicit Love in Earlier Generations: Essays in Historical Sociology (Cambridge, 1978), p. 57.

4. W[illiam W.] Bird, State of the Cape of Good Hope in 1822, Africana Collectanea Series, 19 (Cape Town, 1966), pp. 24-28. A Matrimonial Court was established at the Cape in 1676. Until 1829, men under the age of 25 and women under 20 required parental consent to marry. For the post-Reformation ordinances respecting marriage and the status of husbands as heads of families, which were law in the Netherlands and thence at the Cape, see H.R. Hahlo, The South African Law of Husband and Wife, 5th ed. rev. (Cape Town, 1985), pp. 11-15.

5. George M. Theal, ed., Records of the Cape Colony, 36 vols. (London, 1897-1905), Statement of the Laws of the Colony of the Cape of Good Hope regarding Slavery, 9: 146-61. Christians were forbidden to marry Jews or Muslims, Joannes van der Linden, ed., and Jabez Henry, trans., Institutes of the Laws of Holland (London, 1828), p. 80. For a helpful discussion of the status of non-Christian marriage at the Cape, see M.W. Searle, ed., Cases Decided in the Supreme Court of the Cape of Good Hope during the Years 1850-1867, 5 vols. (Cape Town, 1884-1894), Bronn v. Frits Bronn's Executors and Others, 3: 313-33.

6. Kathleen M. Jeffreys, ed., Kaapse Plakkaatboek, 6 vols. (Cape Town, 1944), Verbod teen die hou van Bysitte; en teen omgang met Nie-Kristelike of Slawe-Vrouens, 30 Nov./9 Dec. 1678, 1: 151-52; Van der Linden, ed., Institutes of the Laws of Holland, pp. 92-94, 165. Legitimation by subsequent marriage was recognized also by Scottish (but not by English) law, Thomas C. Smout, "Scottish Marriage, Regular and Irregular, 1500-1940," in R.B. Outhwaite, ed., Marriage and Society, Studies in the Social History of Marriage (London, 1981), p. 233. Under Roman law, a "natural" child (one born in concubinage) was distinguished from a "bastard" (conceived by "roving carnal intercourse"), Percival Gane, ed. and trans., The Selective Voet being the Commentary on the Pandects [Paris Edition of 1829] by Johannes Voet [l647-1713], 8 vols. (Durban, 1956), 4: 388, 390.

7. Francois P. van den Heever, Breach of Promise and Seduction in South African Law (Cape Town, 1954), pp. 60, 62, 63. Affiliation is a term "borrowed from the English law," Erwin Spiro, Law of Parent and Child, 4th ed. (Cape Town, 1985), p. 460.

8. Bird, State of the Cape of Good Hope, pp. 53-56; Andries F.S. Maasdorp, in The Institutes of South African Law, Being a Compendium of the Common Law, Decided Cases, and Statute Law of the Union of South Africa, Book I. The Law of Persons, eds., Charles A. Beck and Oscar H. Hoexter, 5th ed., (Cape Town, 1929), pp. 264-65; Erwin Spiro, "Legitimate and Illegitimate Children," Acta Juridica 1964 (Cape Town, 1965), p. 65.

9. Andries Dreyer, ed., Boustowwe vir die Geskiedenis van die Nederduits-Gereformeerde Kerke in Suid-Afrika (Raad van die Nederduits-Gereformeerde Kerk in Suid-Afrika, 1936), vol. 3 of Bouwstoffen voor de Geschiedenis der Nederduitsch-Gereformeerde Kerken in Zuid-Afrika, ed., Cornelis Spoelstra, 3 vols. (Amsterdam, 1907), pp. 3-6; Maria M. Marais, "Armesorg aan die Kaap onder die Kompanjie, 1652-1795," Archives Year Book of South African History (Pretoria, 1943), 6: passim. For the assumption of poor relief by the Lutherans see Paul F. Greyling, Die Nederduits Gereformeerde Kerk en Armesorg (Cape Town, 1939), p. 192. The freed slaves (vryswarte, or free blacks) formed at all times a small minority of the population of the colony but were a significant social category in Cape Town where most were settled.

10. Van der Linden, ed., Institutes of the Laws of Holland, pp. 335-38, 353, 356-57. Infanticide might be punished by strangling or imprisonment, corporally, and exposure abortion "capitally" or "by imprisonment, corporal punishment, or banishment," depending on the verdict regarding intent. Conceding that, in the Netherlands, prostitution might be "winked at," Van der Linden added that when sex for gain became "too public" it could be punished with "imprisonment and banishment for a limited time."

11. Van der Linden, ed., Institutes of the Laws of Holland, pp. 357-58.

12. Leonard Blusse, Strange Company, Chinese Settlers, Mestizo Women and the Dutch in VOC Batavia (Dordrecht-Holland, 1988), pp. 158-62, 169.

13. Spoelstra, ed., Bouwstoffen voor de Geschiedenis der Nederduitsch-Gereformeerde Kerken, 1: 593; Jeffreys, ed., Kaapse Plakkaatboek, 1: 151-52; Cape Town Archives Repository [CAR], Council of Policy [C] 18, Resolutions, 1686-87,1 July 1686, pp. 84-85; Karel Schoeman, Armosyn van die Kaap, die wereld van 'n slavin, 1652-1733 (Kaapstad, 2001), pp. 560-61; C. Graham Botha, Early Cape Matrimonial Law (South African Bound Pamphlets No. 10), p. 8. Four children were born before and seven after the marriage that year. Bort was herself of Dutch-slave parentage.

14. Jean Gelman Taylor, The Social World of Batavia, European and Eurasian in Dutch Asia (Madison, Wisconsin, 1983), pp. 9-17, 76, 156-57, and passim.

15. Theal, ed., Records, Proclamation by Sir David Baird, 26 Apr. 1806, and Somerset to Bathurst, 12 May 1818 with enclosures, 11: 407-08,493, 512. Couples were still required to produce a certificate from the Matrimonial Court.

16. John R. Gillis, For Better, For Worse, British Marriages, 1600 to the Present (New York and Oxford, 1985), pp. 53, 84, 90-92, 186, 192-95. Nearly 5000 Britons, some of whom settled at the Cape, arrived prior to the immigration scheme of 1820, see Peter Philip, British Residents at the Cape, 1795-1819, Biographical Records of 4,800 Pioneers (Cape Town, 1981).

17. Hercules Tennant and Edgar M. Jackson, eds., Statutes of the Cape of Good Hope, 1652-1895,6 vols. (Cape Town, 1895-1906), No. 62 of 1829, 1: 55-56; James Buchanan, ed., Cases Decided in the Supreme Court of the Cape of Good Hope As Reported by the Hon. William Menzies Esq., 3 vols. (Cape Town, 1870-1903), 1: 151-55, 231-42; Andrew Bank, The Decline of Urban Slavery at the Cape, 1806 to 1843 (University of Cape Town: Centre for African Studies, Communications Series 22/1991), p. 102. For a summary of "the official retention of Roman-Dutch law," yet the "general movement towards English law and institutions," see H.R. Hahlo and Ellison Kahn, The South African Legal System and Its Background (Cape Town, 1968), pp. 575-78. The 1838 Order-in-Council is referred to below.

18. Ginger Frost, "'The Black Lamb of the Black Sheep': Illegitimacy in the English Working Class, 1850-1939," Journal of Social History, 32 (Winter, 2003), p. 293; Lionel Rose, The Massacre of the Innocents, Infanticide in Britain 1800-1939 (London, 1986), p. 25.

19. Leonore Davidoff and Catherine Hall, Family Fortunes, Men and Women of the English Middle Class, 1780-1850 (London, 1978), p. 206; Bird, State of the Cape of Good Hope, pp. 13, 54. Julia Adams found that although the Dutch system of inheritance was less discriminatory than that of Britain, elite families favored eldest sons so as to consolidate their wealth and status, "The Familial State: Elite Family Practices and State-making in the Early Modern Netherlands," Theory and Society, 23, 4 (August, 1994), pp. 509-12. Under Dutch law, when one partner in a marriage in community of property died the widow or widower received half of the estate and the children divided the balance equally.

20. Gillis, For Better, For Worse, pp. 17, 135.

21. Henrice Altink, "'To Wed or not to Wed?': The Struggle to Define Afro-Jamaican Relationships, 1834-1838," Journal of Social History, 38, 1 (Fall, 2004), p. 81; Gillis, For Better, For Worse, pp. 50-52, 110, 119, 127, 140-42. The Act applied to England and Wales (but not Scotland) and the only groups exempted from its provisions were Jews and Quakers. Baird's revocation of the Batavians' provisions for civil marriage was founded on the Marriage Act but without the requirement that the church ceremony should be performed by clergy of the Established (Anglican) Church. See also Lawrence Stone, Road to Divorce, England 1530-1987 (Oxford, 1990), p. 129; Richard Price, British Society, 1680-1880, Dynamism, Containment and Change (Cambridge, 1999), p. 203.

22. Rogers, "Carnal Knowledge," p. 365; Gillis, For Better, For Worse, pp. 128, 182-86, 198.

23. Thomas W. Nutt, "The Paradox and Problems of Illegitimate Paternity in Old Poor Law Essex," in Illegitimacy in Britain, 1700-1920, eds., A.S. Levene, T.W. Nutt and S.K. Williams (Basingstoke, 2005). When men who were affiliated failed to pay, the mothers received parish funds. Affiliation procedures were tightened up by the Poor Law of 1834.

24. Angus McLaren, Reproductive Rituals: The Perception of Fertility in England from the Sixteenth Century to the Nineteenth Century (London and New York, 1984), p. 130. In terms of the Maiming and Wounding Act of 1803 (43 Geo. III, c.58), mothers accused of infanticide were no longer required to prove their innocence, as before, but abortion was made a statutory offence.

25. Kirsten McKenzie, "Wollstonecraft's Models?: Female Honour and Sexuality in Middle-Class Settler Cape Town, 1800-1854," Kronos, Journal of Cape History, 23 (University of the Western Cape, Nov. 1996): 69-70 and passim; C. Graham Botha, History of Law, Medicine and Place Names in the Cape of Good Hope: The Collected Works of C. Graham Botha, 3 vols. (Cape Town, 1962), 2: 46, 55; Articles 19-20 and 30-37 of the Marriage Order in Council, Cape of Good Hope Statutes, 1: 235, 239-42. The last marriage by court order occurred in 1832.

26. Davidoff and Hall, Family Fortunes, p. 321; Adams, "The Familial State," pp. 506, 509, 511, 512, 517; Donald Haks, Huwelijk en gezin in Holland in de 17de en 18de eeuw, Processtukken en moralisten over aspecten van het laat 17de-en 18de-eeuwse gezinsleven (Utrecht, 1985).

27. Ann Laura Stoler, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley, 2002), p. 24. The meanings attached to "European" in Batavia may be found in Taylor, The Social World of Batavia, p. 76.

28. Richard Elphick and Hermann Giliomee, "The origins and entrenchment of European dominance at the Cape, 1652-c.1840," in eds., R. Elphick and H. Giliomee, The Shaping of South African Society, 1652-1840 (Cape Town, 1989), pp. 528-29.

29. Antonia Malan, "Chattels or Colonists? 'Freeblack' Women and Their Households," Kronos, 25 (1998/99), p. 66; Taylor, The Social World of Batavia, pp. xviii, 34, 71-77; Vertrees C. Malherbe, Krotoa, called "Eva": A Woman Between (University of Cape Town: Centre for African Studies, Communications Series 19/1990), passim.

30. John Black, "Illegitimacy and the Urban Poor in London, 1740-1830" (Ph.D. diss., University of London, 1999), pp. 95-97; Rogers, "Carnal Knowledge," pp. 362-63, 367.

31. CAR, 1/Cape Town Municipality [CT] 6/17, 5 vols., King v Saartje, 23 Jan. 1832 and passim; Frederick N. Zaal, "Roman law and the racial policies of the Dutch East India Company: an exploration of some historical inter-connections," Comparative and International Law Journal of Southern Africa, 29, 1 (1996): 40. Robert Ross remarked: "Prostitution is, surprisingly, not a subject on which information is readily available," Status and Respectability in the Cape Colony, 1750-1870: A Tragedy of Manners (Cambridge, 1999), p. 128.

32. Jennine Hurl-Eamon, "Insights into Plebeian Marriage: Soldiers, Sailors, and their Wives in the Old Bailey Proceedings," London Journal (forthcoming); Rogers, "Carnal Knowledge," p. 368. The settler men of the Cape were obliged to serve in the militia, for home defence, but at no stage were they recruited as regular soldiers.

33. Laslett, Family Life, pp. 102-03; Dreyer, Boustowwe vir die Geskiedenis van die Nederduits-Gereformeerde Kerke, Bepalingen van den Kerkenraad (Omtrent de uitoefening van het Kerkelyk Opzigt en de Tucht, Censuur), pp. 227-29.

34. Laslett, Family Life, pp. 120-24.

35. Patricia 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 (November, 1996), p. 54; CAR, Verbatim Copies [VC] 605, Doop Boek van Christen Kinderen van January 1713 tot 1742 en van Slaven kinderen van der E. Compagnie January 1713 tot 16 September 1742. Between 1665 and 1724, 14 ministers served the Cape Town congregation unaided. The improved recordkeeping may have been due to the appointment of an assistant to the minister, J.G. d'Ailly, in the early 1720s.

36. Gerrit J. Schutte, "Between Amsterdam and Batavia, Cape Society and the Calvinist Church under the Dutch East India Company," Kronos, 25 (1998/1999): 17-49. Some unwed parents who later married checked to see that the fact had been noted, see the Nederduits Gereformeerde Kerk Archive [NGKA] G1 1/8, Notulen, Nov. 1804, for the complaint by Johan Jurgen Schendenhuit and Anna Elisabeth van de Caap.

37. CAR, VC605, 10 March 1726: "dit kind door het huwelijk geEcht ... 1736;" Ad W. Biewenga, "Kerk in een volksplanting: de Kaap de Goede Hoop," in Het Indisch Sion, De Gereformeerde kerk onder de Verenigde Oost-Indische Compagnie, ed., Gerrit J. Schutte (Hilversum, 2002), p. 204. The terms "de vader onbekend" (the father unknown) or "een onbekend Christen," which had been used earlier, were retained as appropriate. "Van de Kaap" was also rendered as "van de Caab" or "Caap."

38. Hans F. Heese, Groep sonder Grense (Die Rol en Status van die Gemengde Bevolking aan die Kaap, 1652-1795) (University of the Western Cape Institute for Historical Research, 1984), pp. 41-80.

39. Edward A. Wrigley, "Marriage, Fertility and Population Growth in Eighteenth-Century England," in Marriage and Society, ed., Outhwaite, pp. 143, 146.

40. Jonathan N. Gerstner, "A Christian Monopoly: The Reformed Church and Colonial Society under Dutch Rule," in Christianity in South Africa: A Political, Social and Cultural History, eds., Richard Elphick and Rodney Davenport (Cape Town and Oxford, 1997), p. 22; CAR, VC606, Algemeen Doop Boek begonnen de 1 January Ao 1743 door den predikant Frans le Sueur, 1744; VC607 and VC609. Figures in these registers do not refer strictly to Cape Town births as they included the hinterland (e.g. Stellenbosch and Drakenstein) until 1804 when a stricter separation was imposed. Wrigley claims that "illegitimate births were never more than about a fifteenth [6.67%] of all births in England" during the 18th century," "Marriage, Fertility and Population Growth," p. 145.

41. CAR, VC607, 26 Feb. 1775; VC609, 11 Apr. 1784. Two of the four children baptized in 1775 were "minors," that is, above 7 years of age which was the upper limit for "infant" baptism, and should have been baptized on confession (beleydenis). The five children of Adriaanse and Rachel van de Caab were legitimated by their marriage nine years later, in 1793.

42. Spoelstra, Bouwstoffen, Art. 23, Kerkorde van 1624, 2: 565; Robert C-H. Shell, Children of Bondage, A Social History of the Slave Society at the Cape of Good Hope, 1652-1838 (Johannesburg, 1994), p. 235; Robert Ross, "The 'White' Population of South Africa in the Eighteenth Century," Familia, 12 (1975), p. 96, citing E.F. Watermeyer, "The Roman Dutch Law in South Africa," in The Cambridge History of the British Empire: South Africa, Rhodesia and the High Commission Territories, ed., Eric A. Walker, 2nd ed. (Cambridge University Press, 1963), 8: 870-71. The figures for illegitimacy during the two decades are: 1770-1779: 113 of 2310 baptisms = 4.9%; 1780-1789: 323 of 3049 baptisms = 10.5%. Some mothers presented two or more children.

43. These remarks rely on Nigel Penn's unpublished paper, "The Meuron Regiment at the Cape, 1783-1788" (Paper presented at the Swiss in Africa Conference, University of Basle, Oct. 2003). A sharp economic reversal followed the peace agreed in 1784--a development exacerbated by the VOC's own declining fortunes.

44. Willem J. de Kock and Daniel W. Kruger, eds., Dictionary of South African Biography, 6 vols. (Human Sciences Research Council: Tafelberg Publishers Ltd, 1972), 2: 788-90.

45. Laslett, Family Life and Illicit Love, p. 107. The numbers of free blacks increased in the early 19th century: "From a total of only 352 free blacks in the entire colony in 1770, the number rose ... to 1134 in 1807, 1800 in 1817, 3269 in 1827 and probably well over 4000 by the time of emancipation," Bank, The Decline of Urban Slavery at the Cape, p. 192.

46. Leonard Guelke, "The Anatomy of a Colonial Settler Population: Cape Colony 1657-1750," The International Journal of African Historical Studies, 21, 3 (1988): 459-60, 463-64, 470.

47. Heese, Groep sonder Grense, p. 8; Nigel Worden, Slavery in Dutch South Africa (Cambridge, UK, 1985), pp. 145-46.

48. Anna J. Boeseken, Slaves and Free Blacks at the Cape, 1658-1700 (Cape Town, 1977), pp. 91-92; Heese, Groep sonder Grense, pp. 7-8; Johannes L. Hattingh, "Grondbesit in die Tafelvallei. Deel I. Die Eksperiment: Vryswartes as Grondeienaars, 1652-1710," Kronos, 10 (1985): 32-48. Colyn is generally believed to have come from Gravenzande in South Holland but according to one source he was born in 1662 in France, Pedigree Resource File, FamilySearch Internet Genealogy Service. Maria Everts had one child by her husband, and appears to have had at least two more by fathers other than Colyn.

49. CAR, VC633, Stellenbosch, Doopregister, 16 Mar. 1749; VC621, Cape Town, Marriage Register, 19 Dec. 1756. The children of a slave-Khoekhoen union were known as Bastard-Hottentots, and took their status--slave or free--from the mother. It is not clear if Heijmans (who herself had been baptized) was born free, or was born into slavery and attained her freedom later. The children born after the marriage were Cornelia, Jacob Roelof, Johanna Magdalena, Christiaan Johannes Pieter, Anna and Christina Elizabeth, see Johannes A. Heese, comp., and R.T.J. Lombard, ed., Suid-Afrikaanse Geslagregisters, 12 vols. (to be completed), (Pretoria, 1986-), 9.

50. CAR, VC608, 19 Jan. 1772 where she appears as C.P. Roelofse van de Caab; VC609, 26 Jan. 1772, where she appears as C.P. Roelofse (without the toponym). Barendse was also a vryswart--the son of Barend of Batavia and Juliana Adamse van de Kaap. They baptized a legitimate child on 7 Jan. 1776, VC607, where the mother was shown as Catharina Pieternella van de Caab. An explanation for these entries in the slave register, after the sisters' legitimation by the parents' marriage and when all the parties concerned must have been free, has not been found.

51. CAR, VC607, 7 June 1778; VC609, 8 Oct. 1780, 27 Oct. 1782 and 1 Jan. 1785; VC610, 8 Dec. 1793 and 7 June 1795. The reproductive history of the four remaining Roelofse siblings is unknown, and they may have died young. Spellings are unreliable, thus Bartels and Barteling may have been related. For this family, see Heese and Lombard, Suid-Afrikaanse Geslagregisters.

52. Johannes L. Hattingh, "Beleid en Praktyk: Die doop van slawekinders en die sluit van gemengde verhoudings aan die Kaap voor 1720," Kronos, 5 (1982): 25-42; Shell, Children of Bondage, p. 386. Shell added: "... manumitting owners were predominantly (69.7 percent) first generation colonists"--some of them free blacks but many from Europe, especially Germany, p. 392.

53. Blusse, Strange Company, p. 169; Guelke, "The Anatomy of a Colonial Settler Population," p. 469. The figure does not include men who were single at the time of the census but were found to have married later.

54. Guelke, "The Anatomy of a Colonial Settler Population," pp. 470, 472. There was, in fact, an "unusual urban concentration of slaves" at the Cape, see Shell, Children of Bondage, p. 138.

55. Colony of the Cape of Good Hope, 1850, Census of May 1849 for Cape Town, pp. 308-09. The 1849 census reported more women than men in Cape Town. The first step towards self-government was taken in 1854 with the introduction of representative government.

56. The fisherman Rajab van Boegies who was recorded in 1799 as living with his two wives, the free blacks Roselinda and Aurora, was presumably a Muslim, CAR, Burgerraad [BRD] 27, Wardmaster's Report for Ward 13, Cape Town, 1799.

57. John E. Mason, "Paternalism under Siege, Slavery in Theory and Practice During the Era of Reform, from c. 1825 through Emancipation," in Breaking the Chains, Slavery and Its Legacy in the Nineteenth-Century Cape Colony, eds., Nigel Worden and Clifton Crais (Johannesburg, 1994), p. 73, notes 81, 82.

58. Pamela Scully, "Private and Public Worlds of Emancipation in the Rural Western Cape, c. 1830-1842," in Breaking the Chains, eds., Worden and Crais, pp. 208, 217-18; Patricia van der Spuy, "Slave Women and the Family in Nineteenth-Century Cape Town," South African Historical Journal, 27 (1992): 72.

59. Margaret Lenta and Basil le Cordeur, eds., The Cape Diaries of Lady Anne Barnard, 1799-1800, 2 vols. (Cape Town, Second Series Nos. 29 and 30, 1998/1999 and 1999), 1: xxvii.

60. Lenta and Le Cordeur, eds., Cape Diaries, 2: 218.

61. Elphick and Giliomee, "The Origins and Entrenchment of European Dominance," pp. 525-26 and passim; Heese, Groep sonder Grense, p. 8.

62. See Heese and Lombard, Suid-Afrikaanse Geslagregisters, for the Appel, Cloete and Van Hoff families.

63. Hendrik C.V. Leibbrandt, Precis of the Archives of the Cape of Good Hope, Requesten (Memorials), 1715-1806, 5 vols. (Cape Town and London, 1905), 1, A-E: 251-52; Biewenga, "Kerk in een volksplanting," p. 215.

64. CAR, BRD 27, passim; Margaret Cairns, "Genealogical Kaleidoscope, Ward 13 Cape Town 1700-1800," Familia, Quarterly Journal of the Genealogical Society of South Africa, 18, 2 (1981): 37-49.

65. Stoler, Carnal Knowledge and Imperial Power, p. 14; Taylor, The Social World of Batavia, p. 125. See also V.C. Malherbe, "In Onegt Verwekt: Law, Custom and Illegitimacy in Cape Town, 1800-1840," Journal of Southern African Studies, 31, 1 (March, 2005).

66. Price, British Society, 1680-1880, pp. 202-04, 228-30. For a starting point respecting a Cape-West Indies comparison see Altink, "'To Wed or Not to Wed?'", passim.

67. Johannes H. Redelinghuys, Die Afrikaner-Familienaamboek, Sketse en besonderhede omtrent die voorgeslagte van bekende Afrikanerfamilies (Cape Town, 1954?), p. 64. Respecting marital relations: "Dr [Richard] Elphick has ... gone through the whole of the Cape Town marriage registers in a systematic way. He found that 'mixed marriages' constituted not more than 5%" of all marriages in the city, Johannes A. Heese, "Postscript," in Ross, "The 'White' Population of South Africa," p. 101.

68. Rogers, "Carnal Knowledge," pp. 355, 369.

69. Laslett, Family Life, pp. 3, 151, 238, 245; Peter Laslett, "Introduction: Comparing Illegitimacy over Time and between cultures," and "The bastardy prone sub-society" in Bastardy and its Comparative History, eds. P. Laslett, K. Oosterveen and R.M. Smith, p. 6 and Chap. 8. Laslett warns against attributing deviations from the norms of a dominant class to a single source.

70. Malherbe, "'In Onegt Verwekt,'" pp. 182-85; Guelke, "The Anatomy of a Colonial Settler Population," p. 470.

By Vertrees C. Malherbe

University of Cape Town (1)
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