Jeremy Martens. Journal of Imperial & Commonwealth History. Volume 31, Issue 3, September 2003.

In May 1869 J.W. Turnbull, a barrister and newly elected member of the Natal Legislative Council, introduced a bill expressly designed to protect white women and girls living in the southern African colony. Bill 1 of 1869 proposed, first, that males convicted of assault with intent on any female be permanently branded on their foreheads and, secondly, that in all cases where males were executed for crimes perpetrated on females, their corpses be publicly suspended in an iron cage. Inspired by a ‘black peril’ panic that alarmed settlers in the late 1860s and early 1870s, this astonishing measure won Turnbull the admiration of some sections of the colonial press, but was too draconian for Turnbull’s more experienced fellow legislators. Accordingly, on second reading the bill was referred to a select committee and was comprehensively refashioned before being passed and promulgated.

Given the severity of Turnbull’s original bill, the dispassionate tone of the law as passed is striking. Law 15 of 1869 (‘For the punishment of idle and disorderly persons, and vagrants, within the Colony of Natal’) was modelled after English vagrancy legislation adapted for use throughout the British Empire in the nineteenth century. Based on the 1824 Vagrant Act, it allowed for the conviction of persons found trespassing, loitering, indecently exposing themselves or behaving riotously. Furthermore, the law enabled urban municipalities to impose a curfew for black people and allowed for the conviction of ‘every coloured person’ found ‘wandering’ after dark.

In focusing on the making of Law 15, this article will attempt to explain the remarkable transformation of Turnbull’s extreme proposals into colonial Natal’s vagrancy law. It will try to account for why unfounded fears about African men raping white women found expression in legislation based on a widely adopted imperial statute that made no explicit reference to the crime of rape and which was primarily directed at controlling unemployed black people in towns. In doing so this article will argue that widely held beliefs about the ‘barbaric’ nature of African marriage practices underpinned white settlers’ understanding that African men in Natal towns presented a danger to settler society in general and a sexual threat to white women and children in particular. Moreover, urban male Africans’ ‘uncivilised’ habits—defined variously as an unwillingness to work, an absence of wealth and fixed property, a tendency for itinerancy, an inclination to live off the labour of women and an inability to control sexual urges—closely resembled the characterisation of vagrants in Britain and its Empire. It was the supposed unmanliness of urban African men that necessitated their control and shaped the racial classification of Law 15 of 1869.

I

In the late 1860s and early 1870s white Natal was gripped by the fear that female settlers were in imminent danger of being raped by African men. Etherington argues that the scare was born of a ‘broader fear of losing control’. African economic competition, the influx of black migrant labourers into the colony, the proliferation of firearms and the autonomy of African communities all worked to undermine settlers’ sense of security. There were no factual grounds for white alarm for ‘practically no one was raped’. In this respect the scare was similar to other moral panics in southern Africa where the perceived dangers posed to whites were ‘far less a tangible reality than a panicked state of mind which dwelt on the substance of things feared and the vision of things unseen’. Male settlers nevertheless attributed the ‘increasing’ number of ‘outrages’ to lax legislation and called for the enactment of strict laws to safeguard white women and children.

Responding to their constituents’ concerns, in October 1867 elected members of the Natal Legislative Council passed a resolution requesting that Lieutenant Governor Robert Keate consider ‘introducing the punishment of transportation beyond the seas, instead of death, in certain cases of crimes committed by Natives’. Although the exact nature of these crimes was not specified, Keate was informed that the ‘crimes alluded to were those of Rape and assault with intent to commit Rape upon White women, which it was said had lately increased’. Keate passed on the address for the opinions of the Natal Attorney General, M.H. Gallwey and Theophilus Shepstone, Secretary for Native Affairs. Although Gallwey advised that the address was requesting Keate to violate those sections of Natal’s Charter that forbade distinctions on the basis of colour, he believed that the legislature could impose a more severe punishment for the crime of rape. Moreover, Gallwey argued that under Native Law the Lieutenant Governor, as Supreme Chief, already possessed the power to banish black prisoners for life, and for that reason African prisoners could legally be transported to the island of Inyack. Shepstone for his part heartily supported transportation as a deterrent but, owing to its proximity to Natal, was unsure whether Inyack was an appropriate destination.

In his despatch on the matter to the Duke of Buckingham, Secretary of State for the Colonies, Keate expressed his willingness to alter the punishment of banishment of Africans into that of transportation. He went so far as to enquire of his superior whether there was any place within the Empire to which prisoners sentenced to transportation in Natal could be sent. However, Buckingham curtly reminded Keate that ‘transportation has been given up in all parts of the British Dominions, and that there are many reasons for feeling assured that it could not be maintained by Natal without injurious consequences’.

By early 1868, some months before Buckingham’s reply arrived in Natal, public indignation at the ‘increasing frequency with which assaults by natives are occurring’ had begun to provoke strident editorials and a lively correspondence in the colony’s newspapers. Natal Witness editor David Buchanan remarked on the need for measures to be taken ‘to prevent the increase of crime, and to ensure the capture and conviction of this particular class of offenders. This is a subject worth the attention of the executive, as well as of the legislature, and should be dealt with in a fair, firm and practicable manner.’ Other settlers were less circumspect. ‘J.S.’ fulminated that

[t]hese disgusting cases are indeed becoming too frequent for us to restrain our indignation at the lukewarmness of the authorities, in not using some endeavour to suppress these abominable crimes. That they can be suppressed there cannot be a shadow of a doubt, and if our Executive will not make the attempt we must do it ourselves. And the first step I would recommend is to hold a public meeting, and show His Excellency the immediate necessity of adopting some measure of security to the white population,—and this must be done at once; or, secondly, if the Government refuse to act, let a second meeting be convened, at which there will be no lack of resolutions, and of such a nature that there will be no mistaking the feeling of every man in the colony.

If, through the supineness of our Government, we must have Lynch law, why then let us have it, and show them that as Englishmen we will at all risks defend our families.

In the absence of new legislation from the government, municipal authorities attempted to restrict the movements of black people. In January 1868 the Pietermaritzburg City Council passed a by-law that proposed a 10 p.m. curfew and prohibited ‘Coolies, Kafirs, Hottentots or other Colored persons’ from carrying ‘offensive weapons’ in town. This by-law was deemed ultra vires, however, and was disallowed. In a separate effort to spur the government to action, inhabitants of Durban formed a Vigilance Committee and sent a memorial signed by 397 settlers to the Lieutenant Governor. The memorialists expressed alarm at ‘the frequent assaults committed by coloured Men upon the female portion of the community’ residing around Durban, and claimed that it was ‘unsafe for females to travel along the various roads or to be left at their own houses unguarded’. They maintained that such assaults were ‘of constant occurrence’, but that they were not widely reported because the victims objected to appearing in public at the trials of the offenders. For this reason it was urged that the examination of victims be held in private.

Furthermore, the memorialists demanded that ‘immediate steps be taken’ by the government both to prevent ‘these offences so destructive of domestic security and comfort’ and to apprehend and punish the perpetrators. To this end they suggested that a ‘system of registration might be carried out by the Magistrates of the various Boroughs and Townships of the Colony to include every Kaffir coming to reside therein or offering himself for employment’. Under such a system every African would be required to wear a registration badge, and any person employing an African without a badge would be fined. It was recommended further that a law be passed to prohibit African men ‘from being in any Road, street or footpath in any Borough or Township without having a proper pass from their employers, or some duly appointed authority’, and that the system of transportation be adopted.

This increased public agitation prompted the executive to conduct further enquiries. In March 1868 the Colony’s Clerks of the Peace were instructed to compile returns of cases tried or charges made of assaults by Africans on white women, and the Durban Town Council was requested to furnish suggestions on the cause and remedy of the ‘evil’. The Town Council’s reply mirrored the Durban memorial, and suggested that a system of registration and passes for Africans be introduced, that ‘native villages’ be established close to towns, and that a scheme for ‘giving and requiring written characters with all servants not engaged for the first time’ be adopted. Such measures would inconvenience the white population, but were necessary ‘to give security to the female part of the community’.

By the beginning of winter, elected members of the Legislative Council were also pressing the government to pass legislation. During a Council session in June, Captain Harford asked Colonial Secretary Douglas Erskine ‘whether the Government intended taking any special notice of the increase of Kafir outrages, and more especially those committed on European females?’ He added that

if immediate notice was not taken by the Government … a system of Lynch law would ensue, and that some law as that which exists in England against housebreakers ought to be passed in this colony. In the present state of things he would … have no more compunction in shooting a Kafir committing an outrage than he would have in killing a rat.

Erskine replied that the executive was still awaiting the Secretary of State’s decision regarding the implementation of transportation as a punishment for these crimes, and that in the meantime the government thought it advisable to strengthen the police force.

When Buckingham’s despatch on the subject of transportation finally reached Natal, it was read to the Legislative Council. In ruling out transportation, the Secretary of State had suggested that the building of ‘well constructed prisons’ in Natal would be ‘the proper course’ in checking the evil. It is clear from Erskine’s comments to the legislature that the Natal executive was not happy with the despatch, and that it understood that some other form of legislation would have to be passed in the near future. Erskine pointed out that he had made the despatch public ‘as it was considered necessary that a Bill should be introduced … There was no chance of this colony ever being in a position to afford the model prisons as those referred to in the despatch … If any hon. Member had a motion to bring forward he would be glad to hear it.’ This announcement was made towards the end of the 1868 Legislative Council session, and the subject was dropped until the following year.

Although action was postponed by the legislature, ‘outrages’ remained a burning public issue. In April 1869 the Pietermaritzburg City Council again passed the ‘curfew’ by-law that had been disallowed the previous year. It also amended an existing by-law so as to prohibit any ‘person or persons’ from standing or congregating ‘on any footpath street or public place within the borough, so as to obstruct free traffic or endanger the public peace’. Both by-laws were again deemed ultra vires. Erskine informed the municipality that no law existed to prevent people from congregating in public, and that the ‘curfew’ by-law was illegal as a Vagrant Act was not in force in Natal. Nevertheless, there remained strong public support for the passage of legislation providing ‘for the protection of European females from native outrage’. J.W. Turnbull, the newly elected Legislative Council member for Pietermaritzburg City, duly introduced Bill 1 of 1869 at the opening of the 1869 Legislative Council session. This measure proposed that:

[w]hereas assaults on women and female children in this colony are of frequent occurrence, and it is expedient to make the punishment for such crimes more notorious and deterring:

Be it therefore enacted, by the Lieutenant Governor of Natal, with the advice and consent of the Legislative Council thereof, as follows:

1. That in all cases where any man or boy over the age of fourteen years shall be convicted of an assault with intent on any woman or female child, such man or boy, in addition to the punishments at present inflicted for such crimes, shall be sentenced to have the letter R distinctly, conspicuously, and permanently branded on his forehead by the public executioner.

2. That in all cases where any man or boy over the age of fourteen years shall be sentenced to death for any crime perpetrated on the body of any woman or female child, and such sentence shall be carried into execution, the body of such criminal after death shall be publicly exposed in an iron cage to be suspended in such place as the judge may direct …

Commenting on the bill, Natal Witness editor R.E. Ridley lambasted the Executive Council for not introducing legislation the previous year, and congratulated Turnbull for knowing better than to ‘waste his time by consulting those who are wedded to their own peculiar conservative and Kafir-patronising notions’. Ridley acknowledged that Bill 1 seemed ‘to clash’ with the Charter of Natal, which provided that no Natal laws should be repugnant to the laws of England. However, ‘although it is certainly repugnant to the spirit and letter of the law of England’ to legalise polygamy and lobola, it did not seem to Ridley ‘repugnant to the laws of England that we should suspend a criminal by the neck, or even in a cage, for a somewhat longer time than the laws of England now consider necessary’.

Sober heads prevailed in the Legislative Council, however, and a select committee, consisting of Shepstone, Gallwey, Turnbull and another elected member, Polkinghom, was appointed to consider the bill. It decided after discussion that ‘with a view to prevent the occurrence of such assaults and for the better protection and security of the people, provisions be made in the Law based upon the Statute of 5 George IV, c.83, to extend only to the municipalities’. Turnbull’s bill was consequently renamed, and transformed into Law 15 of l869. The first section, based on section IV of the 1824 Vagrant Act, applied to areas outside boroughs. It allowed for the conviction, as idle or disorderly, of persons unable to give a good account of themselves and found trespassing on private property, loitering near private buildings, publicly and indecently exposing themselves with intent to insult females, or behaving in a riotous or indecent manner in public.

The second section of Law 15 extended these provisions to boroughs and in addition allowed for the conviction of ‘every coloured person’ in town found ‘wandering abroad after, and before such hour as such [borough] Corporation may fix, and not giving a good account of himself, or herself’. The penalty upon conviction for the offences contained in the first two sections was a fine or imprisonment with or without hard labour and spare diet. The remaining sections of the law required that all borough corporations erect buildings for the overnight shelter of those black people unable to leave town before the curfew, and furthermore defined the words ‘coloured person’ as ‘any Hottentot, Coolie, Bushman, Lascar, or any of the people commonly called Kafirs, whether they are refugees from any of the surrounding states or tribes, or belonging to the tribes originally in this colony and its neighbourhood’.

Furthermore, the select committee had concluded that vagrant legislation alone would not adequately protect the white female community from black attackers. Thus its report presented to the Legislative Council on 30 June 1869 advised that ‘another Bill more particularly providing for the prevention of the crime of rape should be passed’. The following day Turnbull introduced a new bill (‘[f]or better preventing the crime of Rape’) that, like the vagrant measure, specifically targeted people of colour. Section One imposed the death penalty on ‘every Hottentot, Coolie, Bushman, Lascar, or native convicted of the crime of rape on the body of any white female’.

The Legislative Council passed both the vagrant and rape bills, and in a report, Gallwey recommended that Lieutenant Governor Keate assent to both measures. With regard to the Vagrant bill, Gallwey endorsed Theophilus Shepstone’s opinion that there

were many servants in this City [Pietermaritzburg] and in Durban who were members of tribes resident beyond the borders of the Colony and were in no way affected by the tribal responsibility for acts committed by members of a tribe such as obtains in this Colony, and who thus evade instructions given by the Supreme Chief.

Moreover an Order issued by the Supreme Chief that Natives should not be abroad after a certain hour might clash with a Master’s lawful commands; and this law was considered necessary.

Gallwey also pointed out that the police authorities favoured the measure, and that Africans themselves ‘admit… that they have no right to be abroad after the hour that Her Majesty’s Troops are compelled to return to Barracks’. Keate agreed with his Attorney General, and the vagrant bill received his assent to become Law 15 1869.

Gallwey also urged Keate to assent to the rape bill, on the grounds that ‘its rejection would cause much public indignation’, and that there were other measures in force in Natal that discriminated along colour lines. However, Keate remained unconvinced by this argument and he reserved the measure for the signification of Her Majesty’s pleasure. Although he did not wish to run counter to the settlers’ ‘very strong feeling on the subject’, and while he remained partial to the punishment of transportation in cases of rape, Keate was concerned that the provisions in the bill discriminated against black people. The existence of such a stringent measure, especially one that did not apply to whites, would be inconsistent with settlers’ demands that ‘Native Law’ be abolished so that Africans could be brought under ‘civilised Law’. Furthermore, the measure would oblige the Executive Council to commute sentences and would virtually ‘transfer the equalization of punishments of whites + blacks from the Law to the Executive’. Earl Granville, Secretary of State for the Colonies, shared Keate’s qualms. In rejecting the rape bill, he explained that equal laws were important for the sake of morality ‘because savages will hardly believe that the Government really abhors the crime which it punishes, if it do not punish it in all alike’. Although the Colonial Office was prepared to sanction a law that would make rape a capital crime, it would have to apply to whites as well as blacks.

Etherington has shown that the rape scare continued to generate anxiety until 1874. However, if one uses popular agitation for repressive legislation as an index, the panic appears to have reached a climax between 1868 and 1870. A half-hearted attempt was made in the Legislative Council to pass a modified rape bill in 1870, but the measure was abandoned before the end of the session. The Pietermaritzburg City Council drafted a vagrancy by-law in early 1870, but perhaps baulking at the expense of constructing overnight barracks, did not pursue the matter again until the following year. However, it is likely that continuing concerns about ‘outrages’ finally prompted the Pietermaritzburg Council to adopt Section Two of Law 15 of 1869 as a by-law in March 1871. As well as prohibiting lewd, riotous, disorderly, idle and suspicious behaviour, this measure empowered magistrates to fine or imprison ‘[e]very coloured person found wandering abroad within the Borough after 10 o’clock p.m., and before 5 o’clock a.m., and not giving a good account of himself or herself’. Durban passed a similar by-law in January 1874.

It should be emphasised that while Law 15 of 1869 was modelled on imperial legislation, as an early colonial attempt to control and regulate the movements of Africans in towns it anticipated the comprehensive urban segregation measures so characteristic of twentieth-century South Africa. Night curfews for black people, overnight barracks for Africans erected by municipalities and explicit racial definitions were all to become hallmarks of apartheid influx control laws. The central provisions of Law 15 itself continued to be implemented in Natal until the 1980s. Swanson has described the introduction in 1874 of a pass-registration system to control togt (day) labourers in Pietermaritzburg and Durban as ‘the beginning of urban native administration in Natal’. Promulgated five years earlier, Law 15 can certainly be regarded as an important precursor to racially based urban control measures adopted later in the colony.

Moreover, the legal significance of Natal’s vagrancy law extends further, for its definition of ‘coloured person’ was incorporated into racist legislation passed after 1869. Perhaps most notably, Natal’s Criminal Law Amendment Act 31 of 1903 stated that ‘[i]llicit sexual intercourse between any white woman and any coloured person as defined by the Law 15, 1869, shall be unlawful’. Act 31 remained in force in Natal until the Union of South Africa’s Immorality Act of 1950 superseded it. In fact C.R. Swart, the apartheid government’s first Minister of Justice, cited as a precedent the definition of ‘coloured person’ contained in Law 15 of 1869 when introducing the 1950 Immorality Amendment Bill.

II

In a survey of the historical development of vagrancy laws in Europe and North America, Adler argues that scholars should look beyond narrow economic interests when explaining the enactment of these measures. As early as the sixteenth century, those defined as vagrants in early modem England were believed to threaten social order in general, and not merely the vested interests of the ruling classes. Drifters and ‘vagabonds’ were ‘beyond the moderating influences of church, family, and community’, introduced disorder, were responsible for a ‘bevy of evils’ and ‘challenged the fibre of society’. In colonial America, vagrancy legislation ‘provided residents with a mechanism to repel moral threats to the community’. Vagrants, along with Sabbath-breakers and those who swore in public, challenged the moral character of small colonial towns, and it was understood that legislation was required to protect communities from these ‘deviants’. Similar concerns shaped vagrancy statutes enacted in the nineteenth century, both in Europe and North America.

In a study of the controversy that led to the enactment of the revised 1824 Vagrant Act (the measure on which Natal’s Law 15 of 1869 was modelled), Roberts points out that in early nineteenth-century London the regulation of ‘the lower orders’ was of paramount concern to the middle class. Bourgeois commentators fretted that ‘large populations, expanded commercial activity and estrangement between social ranks’ would lead to an increase in ‘crime, pauperism and disorder’. The existing vagrancy laws were deemed inadequate, and there were calls for stricter laws to alleviate the ‘crisis of labour discipline’. In the minds of middle-class Londoners, this disorder was closely related to the moral dangers posed to women by the urban environment. The throngs of disorderly migrant workers who filled London’s public spaces threatened to contaminate female virtue. In particular, intentional indecent exposure by working-class men was viewed with alarm. It was asserted that the ‘obscene bestialities’ committed in public places to the disgust of women and children gratified the ‘wretches’ that performed them ‘because they are a sort of tacit insult and offence offered to the better part of society’. This perceived link between indecent exposure and other working-class threats was embodied in the 1824 Vagrant Act. The offence of ‘wilfully’ exposing the person in public ‘with intent to insult any female’ was in the legislation grouped together with the infringement of property rights and the promotion of public disorder.

In an examination of late nineteenth-century English vagrancy legislation, McLaren also underlines the connections drawn by lawmakers between vagrancy and sexual danger. Tum-of-the-century England was gripped by a moral panic ‘whipped up out of the notion that women and children were being preyed on by untold numbers of brutes and perverts’. Traditionally, English law had ‘primarily associated indecency with lower-class males’, an association reinforced by the amended Vagrancy Act of 1898 which held that those men convicted of sexual deviancy, such as pimps, male prostitutes and exhibitionists, ‘would be punished in the same manner as vagrants’.

Although the equation of vagrants with sexual deviants might at first appear unusual, McLaren points out that in Europe and North America tramps and drifters were commonly believed to pose both a social and sexual threat to society. Moreover, vagrants, male prostitutes, transvestites and vagrants all had one thing in common—namely, the failure to live up to newly created masculine standards. In late nineteenth-century France, for example, the stereotype of the unmanly urban lout came to the fore during a panic over gangs of working-class petty criminals. These gang members were deemed unmanly because they used knives, were cruel, made cowardly attacks on the defenceless and exploited women sexually. Similarly, vagrants were unmanly because, like women, they did not work. Vagrancy ‘was the refuge of “cowards” given to drugs, drink, gambling, and sexual immorality’. Such behaviour had fearful and tragic effects. In the late nineteenth century, a prominent French expert on criminal vagabonds, Judge Emile Fourquet, attributed a purported increase in murders, thefts, rapes and assaults on children to tramps. The serious danger that male perverts and vagrants supposedly posed to respectable society was symptomatic of ‘a more general shoring up of the definition of “normal” masculinity’, which was based more upon the construction of threatening unmanly ‘others’ than on positive assertions of manliness. By policing masculinity and ‘protecting’ females, argues McLaren, powerful men sought to control both the working classes and independent women.

Rogues, vagabonds, the idle and disorderly were regarded with no less suspicion by respectable society in Britain’s dependencies, and vagrancy legislation was used throughout India and the colonies as a tool for social control. In the early nineteenth century the rulers of Madras adopted the provisions of English vagrancy acts in an effort to regulate the behaviour of the labouring poor that conflicted with their interests. Nineteenth-century Indian cities were understood to be places of moral and physical danger, ‘riddled with disease, prostitution, and increasingly with political extremism’, and vagrancy and public nuisance laws were vigorously applied against economically marginal groups who were routinely associated with all types of crime.

The perceived association between criminal activity and vagrancy also informed the campaigns against thuggee and dacoity in British India. The official attitude towards India’s ‘floating’ population and ‘wandering’ communities was one of suspicion. Like European gypsies, itinerants were suspected of criminal, immoral and debauched behaviour, and Indian officials insisted that the suppression of thuggee depended upon effective policing of ‘the Stroller, the Vagrant, and … the fugitive from Judicial Process.’ Special legislation was enacted in 1836 and 1843 to target the crimes of thuggee and dacoity, and in 1848 an additional law imposed a punishment of seven years for the offence of belonging ‘to any wandering gang of persons, associated for the purposes of theft or robbery’. Renewed concerns about ‘wandering tribes’ in the Punjab and North West Provinces in 1871 led to the creation of the Criminal Tribes Act, which was eventually extended throughout India. This law established a system of registration for members of ‘criminal tribes’ and restricted and regulated their movements.

The myriad dangers posed by vagrants were also emphasised in the settler colonies. In nineteenth-century New Zealand, police and courts gave high priority to the arrest and conviction of vagrants. Local police characterised criminal elements as lazy, idle, itinerants and strangers while the public frequently blamed vagrants for a host of ills in New Zealand society. Itinerant communities were also the target of official and public disapproval in the Australian colonies. In late nineteenth-century Melbourne, vagrants were portrayed as ‘posing a constant and insidious threat to good order and progress’ and were criticised for their ‘libidinous’ and ‘obscene’ habits. Vagrancy laws in colonial Victoria, which were modelled on England’s 1824 Vagrant Act, were valued by police for their flexibility and usefulness; one vagrancy law alone detailed over 100 offences.

The criminal, and especially sexual, dangers supposedly posed by itinerants and vagrants were often racialised in the Australian colonies. Settlers in Queensland associated the ‘barren meanderings’ of ‘primitive’ Aboriginals with rape, treachery and cannibalism. Moreover, white settlers insisted that Aboriginal men were predisposed to raping white women, even though this allegation was exaggerated out of all proportion to incidences of rape that actually took place. Melanesian itinerant labourers employed by Queensland farmers were also branded as habitual rapists. It was asserted that ‘Kanakas’ were ‘foaming at the mouth with malevolent desire for white women’ and in towns such as Bundaberg and Mackay ‘no woman or young girl dare venture about at night for fear of being indecently assaulted by the walkabout kanakas’. Again, there was little evidence to support these accusations.

It is clear therefore that vagrancy and sexual danger were closely associated in the minds of the dominant classes in nineteenth-century Europe, North America and the British Empire. Seeking to control those deemed threatening to society, lawmakers constructed laws that defined and regulated social outsiders. Gender helped to shape this process, for it was ‘unmanliness’ that often defined deviancy. In nineteenth-century Natal, similar concerns informed settlers’ belief that independent male Africans in town were a danger to white women, and led to the enactment of Law 15 of 1869.

Ill

In a study of the urban factor in Natal ‘native’ policy, Swanson makes the compelling argument that the interaction between the colony’s black and white communities was ‘nowhere more vivid, articulate and transforming than in the rising towns from early times’. Pietermaritzburg and Durban were centres of economic growth and social change which ‘inexorably involved an increasing African population in the material goals of European culture, not merely on farm and trading post but under the transforming power of urbanism’. It was widely understood by white Natalians from the beginning of white settlement that the civilised urban environment would exert a powerful formative effect on savage Africans, and they fretted about the negative consequences that would flow from this contact. The ‘mass propinquity, adaptation and competition’ resulting from urbanism was a source of profound anxiety. As early as 1843, the year Natal was annexed to the Crown, Henry Cloete, Civil Commissioner under the military occupation, warned that Africans should be kept well away from ‘the contaminating influence of the Chief Town or Port’.

In spite of such warnings, the successful development of both Durban and Pietermaritzburg was dependent upon African enterprise. Three of the seven African locations set up in 1850 were in the immediate vicinity of the two principal towns. Africans took full advantage of the economic opportunities this proximity afforded, providing casual labour at relatively high wages and monopolising much of the lucrative market for agricultural produce to the detriment of white farmers. The homestead economies of the polygamous communities living in these locations initially adapted well to these demands, and the increasing wealth and independence of Africans close to town caused white anger and resentment. Settlers complained that the towns were both corrupting Africans and entrenching the worst of their savage customs. The wealth accrued from sale of produce allowed Africans to purchase more cattle and therefore to ‘buy’ more female labour in the form of wives. This wealth also ensured that there was no incentive for African men to enter long-term labour contracts with whites, allowing men in town to remain idle and independent of control. It was believed that the combination of independence, proximity to settlers and the formative power of the urban setting inevitably bred in Africans a dangerous contempt for whites. Colonists insisted that Africans could only become truly civilised through labour, and as long as urban Africans shunned regular employment, the immoral temptations of the urban milieu would produce bands of threatening, semi-civilised men given to drunkenness, immorality and crime.

It has been noted that the 1860s rape scare was largely an urban phenomenon. This may be unsurprising given that most of the colony’s white population lived in Pietermaritzburg and Durban, but there is also reason to suspect that the ‘broader fear of losing control’ that fuelled white anxiety would have been especially acute in the urban setting. In the 1860s an economic depression in Natal exacerbated the labour shortage and heightened competition between black and white producers. Parle has documented the adverse effects of poverty and unemployment on Pietermaritzburg’s white inhabitants in the 1860s, and in the light of these circumstances it is likely the belief that independent Africans in the ‘immoral’ towns of Natal presented a danger to white society was sharpened.

Certainly, in the late 1860s, white Natalians were quick to attribute the supposed increase in ‘native outrages’ to Africans who had been corrupted by their proximity to the vices of urban civilisation. Buchanan of the Witness lamented that ‘[t]he transition of the native from his state of unsophisticated and comparatively innocent barbarism, towards the putrid civilization for which his ignorance fits him, is not unattended with its difficulties and dangers’. Uncorrupted and peaceful while in the rural areas, ‘gaols, handcuffs and gallows’ only became necessary once ‘the Kafir has begun to learn the virtues of his fellow colonists of light complexion’. When ‘the native … leaves his kraal for service in our towns’, he was presented with the spectacle of white men ‘reeling along the streets, to a Hottentot kennel’ and ‘female infamy in our streets’. In towns, ‘the native hears and sees enough to break down every barrier of respect; and the throngs of children in the streets tell what share white men have in the vice that elicits no remark’. Black rapists were a symptom of the ‘moral unwholesomeness’ of the urban setting, and ‘moral purification, or prevention’ as well as the systematic enforcement of a ‘proper distance’ between Africans and settlers was required if the blight of ‘outrages’ was to be eradicated.

Buchanan was not alone in pinpointing urban vices as a cause for assaults on female settlers. ‘Pater’ asserted that the ‘growing practice of white females rolling drunk in our streets and being conveyed to the lock­up surrounded by a host of Kafirs enjoying the sport, lowers every white female in the colony in the eyes of the natives, and goes far to break down the barrier that till very recently existed between us and the Kafir’. The existence of immoral white women, and thus indirectly the spate of ‘outrages’, were also attributable to the ‘practice of young men (calling themselves gentlemen) and merchants bringing the said young women just referred to into Natal, and turning them adrift on the community to live a life of beastly degradation … [and t]he rule of the British army of sending so many men out to our colony and not allowing them to bring wives’. ‘Pater’ called for changes that would reform this dangerous state of affairs and concluded with the injunction that ‘every English man and woman draw the just line of distinction between us and the natives’.

While settlers insisted that the urban setting with its vices and immoral temptations encouraged African men living and working in towns to attack white women, this was only part of the explanation. The majority of male settlers living in Pietermaritzburg and Durban did not present a danger to society, for their level of civilisation rendered them immune to temptation. Africans, in contrast, had not yet attained a similar level of self-control. In explaining why urban Africans were not completely civilised, whites asserted that the barbarous domestic condition of African society produced wandering unmanly idlers who lived off the labour of women, had no respect for women, lacked discipline and who therefore presented a sexual danger to female settlers.

In their 1868 memorial addressing the subject of ‘native outrages’, the 397 supporters of the Durban Vigilance Committee expressed the strong conviction that

the Native Marriage Customs of the Kaffirs, especially the sale and purchase of wives, greatly tend to aggravate these offences, debarring the young men from getting married, and that if any measure could be devised for a modification of such customs it would greatly tend to allay the frightful evil to which Your Memorialists advert[.]

Durban Town Councillors also attributed the rape of white women to the ‘unnatural state of things among the native population induced by Polygamy’. They asserted that the ‘discouragement of Polygamy’ was ‘of vital and indeed primary importance’ if the safety of female settlers was to be maintained.” And in a Witness editorial Ridley insisted that being ‘but another phase of slavery’, the sanction of African marriage practices brought ‘similar curses in its train’. Polygamy and lobola were the root causes of ‘the increasing attacks and assaults upon white girls and women made by the colored males’.

Settlers had a number of theories to explain the connections between African domestic institutions and the rape of female settlers. In the first instance, the ‘great “social evil” of polygamy’ ensured that only older richer men could afford to marry, leaving ‘hot-blooded youths frustrated’. Ridley warned that when

one man is allowed to have five wives, it is clear that four must go unmarried and wifeless, as nature is pretty uniform in the supply of the two sexes. If in England they point with sorrow to the fact that there are no less than 500,000 unmarried women, in Natal we reverse the picture, and present to the world of philanthropists a formidable phalanx of savage unmarried men, greater by far in proportion to the respective populations.”

Secondly, settlers argued that polygamy and lobola taught African men to disrespect women and so when they came into town they thought nothing of attacking white women. The issue of ‘outrages’ was in fact ‘doubly a woman’s question’, one ‘in which our own females demand our action, and one also in which their black sisters are intimately interested’. Urging the government to abrogate polygamy and lobola for the sake of both white and black women, Ridley proclaimed:

A nation whose monarch is a woman ought not to tolerate injustice to womankind. All the world over, the degree of fair usage and protection which man accords to his more tender companion, has come to be regarded as the most correct text of advancement in civilization and in all the refinements which adorn the most forward nationalities. On the converse, take whatever numerous and extensive kingdoms of the earth you like as an example, wherein woman is dishonored to a slave, and it is a certain fact that man will there be found degraded to a serf.

Barbarous Natal Africans failed to accord to women ‘due appreciation, defence and regard’; after all, ‘vicious and brutal polygamy’ was little more than ‘woman slavery and legal rape’. Hence when such men came into towns ‘respectable females are knocked down in the streets [and] tender children are tom from their beds’.

Thirdly, settlers maintained that polygamy encouraged unmanly and uncivilised habits in men that led to depravity and lasciviousness. Ridley insisted that ‘Kafir indolence and vice are fostered and strengthened by polygamy’. During the rape scare it was argued that this sensual idleness presented a danger to white society. At a meeting held to protest the polygamy law, Dean of Maritzburg James Green proclaimed that ‘[a] people of whatever race, colour or religion, living in ease, comparative wealth, idleness, and safety, would naturally become self-indulgent …; these [Africans] were living in a singular degree of comfort, ease, and idleness, and the natural and necessary result was that there was an increase of licentiousness and immorality’. Shepstone’s system of indirect rule was blamed for exacerbating the problem. In a speech to the Natal Farmers’ Club, R. Baynes declared that ‘nothing can tend more effectually to keep the native in his present listless apathy, indolence, sensuality and polygamy, than increasing the extent of the locations’. Ridley fingered Shepstone himself, insisting that he was responsible for entrenching polygamy, when ‘polygamy entails upon the white race this bitter curse’.

If African domesticity inclined black men to the assault of white women, this propensity was made worse by the independence of black men in Natal towns. During the scare, African migrant workers from beyond the colony’s borders were consistently blamed for ‘outrages’. The Durban Town Council surmised that ‘the offenders of the kind in question are to a large extent refugees or immigrants from a distance rather than what may be called resident Natives’. The Witness implored the Secretary of State for the Colonies ‘to prevent the importation of Kafir vagabonds into Natal; where they are nursed and petted by the Government, and protected in all their indolence and vice, to the serious inconvenience and injury of its whole inhabitants’. Furthermore, Shepstone himself asserted that,

having no domicile, no tribe or family in the Colony, [African migrants] are subject to none of the restraints or means of control which are applicable to the permanent native population. The presence of a large body of men in the Colony under such conditions, cannot fail soon to become a source of anxiety to the Government. Changed by regular food, from the state [of] attenuated starvelings to that of well conditioned full-blooded men;—transferred suddenly from a despotic personal rule under which their every word must be well weighted before uttered, to a country whose only sign of Government to them is the timid control of their employers, is it to be wondered at, that they become licentious, that complaints are heard of assaults upon women, and that experiencing no restraining power they act as though none existed?

Shepstone supported the enactment of Law 15 because it would serve to control migrants living and working in the colony’s towns.⁸’ He also favoured the creation of a rural police force that would

patrol among the estates and on the main roads, so as to check and regulate the movements of these men, to prevent their wandering about the country without the knowledge of their employers, to curtail the temptation as well as the opportunity to commit the outrages of which so much has of late been heard, and to contribute generally to the suppression of all kinds of crime outside the boundaries of boroughs and townships.

In his analysis of Natal’s rape scare of the 1860s and 1870s Etherington argues that the ‘many powerful forces of change at work in southeast Africa’ at that time created unease among the colonial population. Within Natal, Africans successfully competed with whites in the agricultural and transport sectors. Outside the colony, the autonomy of independent and semi-independent African polities was perceived as a threat to white dominance. It is argued here that this combination of African competition and autonomy was felt most keenly by whites living in Pietermaritzburg and Durban. In the context of an economic depression that threatened white interests, independent black men in towns who shunned menial wage labour and competed with settlers were regarded with fear and contempt. As in early nineteenth-century London and colonial Queensland, disorderly migrant labourers with indecent and uncivilised habits were seen as presenting a threat to settler society in general and white women in particular. In resorting to vagrancy legislation, white Natalians hoped to neutralise this threat.

IV

In the late 1860s all white Natalians acknowledged the need for legislation to check ‘the invasion of the privacy of domestic life, the disturbance of hours of rest, and the trespass during the night, of idle vagabonds’. This need was all the more pressing because ‘peculiarities in our local circumstances’ made the capture and conviction of offenders difficult. Houses were built far apart and back premises were open, ‘the means of approach and retreat under cover of trees and shrubs is easy: the tread of the naked foot is stealthy: the natural freedom with which natives roam about, and are admitted to see their relatives and friends in service, affords them a pretence, when vicious, for trespassing’.

White Natalians, especially those living in Pietermaritzburg and Durban, were in the nineteenth century forced to confront the fact that their control over Africans in Natal was limited. The relative autonomy and prosperity of African communities in the colony were resented. This independence encouraged a pattern of temporary migrant labour, allowed African men a level of choice in the kinds of employment they entered and enabled Africans to compete with colonists. In the straitened circumstances of the 1860s the ‘mask of effortless control slipped’ and white fears that hearth and home were in imminent danger from black men increased. Whites responded with calls for stricter legislation to safeguard both white women and their economic interests. The result of these demands was the transformation of Turnbull’s bill from a proposal ‘to revive a barbarous system of repression long since obliterated from the statute books of civilized nations’ to ‘a kind of vagrant law, which, when put in force, will clear the streets of our two principal towns of the large number of black wanderers of both sexes, who are not only the cause of much annoyance, but have become the source of real danger to person and property’.

In spite of the dramatic contrast between the proposals contained in Turnbull’s original bill and the final form of Law 15 of 1869, white Natalians understood the connections between vagrancy and sexual danger. Similar connections were drawn in Europe and North America, where vagrancy laws helped to define deviant outsiders and shore up hegemonic masculinity. Natal’s vagrancy law served a similar function by racialising vagrancy and facilitating the control of independent black men in towns. In defining independent urban black men as dangerous outsiders Natal settlers drew from the well of ideas that made up their understanding of civilised masculinity. It was proclaimed that savage African domestic institutions encouraged idleness in black men, left young black males sexually frustrated, taught black men to disrespect women, allowed black men to shun regular employment and to evade control. In sum, the tenets of civilised masculinity shaped the settler belief that whites and blacks were different and informed the understanding that independent urban African men posed a serious danger to settler society in Natal.