Customary Citizens and Customary Subjects: Colonial Respectability and Marriage Law in 19th Century Natal

This paper is an attempt at deconstructing and demystifying the category of colonial civil law in 19th century Natal. While much has been written about the exceptional legal systems created in this region to administer colonial subjects, especially Zulu-speaking Africans, very little is understood about the establishment of the common law, or the ‘ordinary civil laws’ of the colony as the moral order against which indirect rule was created and enforced. As such, this paper identifies and begins to address this enduring difficulty in the colonial historiography of this region. Much of the writing about the administration of Native law attempts to theorize the legal ‘outside’ created by Theophilus Shepstone and his colonial contemporaries to rule Africans in Natal. It is ironic that in understanding the making of ‘difference’ in this region, there is little historiographical sense of the content or the making of the entity from which ‘Native custom’ in Natal is understood to be differently, and supposedly antagonistically, made. African colonial ‘Otherness’ in nineteenth century Natal, made through the elaboration of particular colonial understandings and elaborations of what constituted the realm of the ‘customary’ for Africans, is implicitly always referential of a colonial ‘self’ (constituted by common law default) often disapproving of the content of African custom. This paper provides a brief account of the making of an aspect of colonial marriage law for Natal’s white settlers, and has important implications for bringing the study of citizen- and subject-making in Natal into the same analytical frame. It is an empirical account of the immense struggle that goes into making both citizens and subjects out of people subject to laws of custom. It is also a consideration of how colonial citizenship is made in reference to both an imperial motherland and the creation of colonial ‘Others’. In particular, it is an account of how law that had been offered by colonial rulers and legislators in this region as the moral default is constituted out of practices based on the selfsame principles that it regards as immoral and uncivilized in those who are made to be colonial subjects.