I’ve spent most of my time as a guest blogger so far talking about archives, in one way or another. That’s probably fitting, since it was in the process of reading my way through thousands of court records in the Cape Town archives that I began to think of myself as a legal historian. I though it would be fun to close out my month with a short paean to two of my favorite archival sources: one from my first book, and one from the project I’m currently working on.
But first, a digression: in response to some of the issues I discussed in my first post, I've been working with several other scholars of African legal history to put together a symposium to coincide with the meetings of both the ASLH and the ASA, which will be held in Boston on the same weekend next year. If that's of interest to you, the CFP will appear here soon, or you can email me directly for more information.
Now, back to the archives. The first source that I want to describe appears in chapter two of Colonizing Consent. It’s a court case, but one that fell totally outside the legal frameworks of the colonial court in which it was heard. The defendant, George, was charged with masturbating into his neighbor’s milk jar. When I encountered this case in the archives, my first reaction was relief; it was a welcome respite from the relentless narration of violence and trauma that filled most of the criminal case files I had been reading. Yet I quickly realized how revealing my reaction was. The magistrate who heard the case was as bemused as I initially had been, noting that “the prisoner has committed no offense against our law and will have to be discharged.” Yet the allegation “caused the greatest horror” to local residents, and the milk jar’s owner claimed that “so enormous and heinous is this offense under the law, that death alone can expiate it, and that would have been the offender’s punishment if they were still under the power of their Chiefs.” He understood it as a form of witchcraft, accusing George of “causing the death of our children and cattle.”
To me, this case exemplifies the capacity of colonial court records to illuminate social and cultural worlds beyond the colonial state itself. George’s actions broke no colonial law, but his neighbors nonetheless showed up at the court to demand redress—and, in doing so, left a rich archival trail. It reminds me, too, to take seriously the possibility that sexual violence could do harm in ways that exceeded physical or psychic trauma. If the desecration of an inanimate object risked bringing death to the children of the house, so too could rape do harm not only to individual but also to collective health. Finally, this is one of the anecdote I tell when asked about queer sex in the colonial Eastern Cape. Sodomy was illegal under colonial rule, but I found few prosecutions involving African men. Those that I did find either alleged nonconsensual sex or took place in spaces of intense colonial surveillance, such as gaols. It is always difficult to interpret archival silences, but George’s encounter with the milk jar made it clear to me that the African communities of the Eastern Cape did not hesitate to bring spiritually harmful forms of sex to the attention of colonial authorities, even when they weren’t illegal under colonial law. By extension, it suggests strongly Africans in the Eastern Cape did not consider same-sex erotic encounters to be harmful, or deserving of punishment.
The second source is not a court record but an obituary. I found Andrew Gontshi’s obituary several years after I became interested in his career. Gontshi was one of a group of black “law agents” in the Eastern Cape, and he represented clients in several of the cases I wrote about in Colonizing Consent. I was intrigued by the existence African law agents, who were licensed by the colonial state but had no formal legal qualifications. I quickly became even more intrigued by Gontshi himself when I started tracing his career through the colonial archives. He was a prickly character in the courtroom, who had a combative relationships with a series of colonial magistrates.
When I found Gontshi’s obituary, it crystalized my sense of Gontshi’s temperament, and of the relationship between his courtroom style and the broader political scene of the 19th century Eastern Cape. It describes Gontshi as having “got little sympathy from the Europeans, and asked for none. He stood on his own legs and….defied his enemies white or black to trample him down.” Although “his habit of appealing that disconcerted the bench and let to hot passages of arms…and even to threats of suspension and other dire punishments,” Gontshi’s legal career provides a “creditable example of what an independent [Xhosa] gentleman and scholar could make of those talents with which nature endowed him.”
Gontshi’s obituary is not always accurate. Yet, if it’s wrong in the facts, it’s true in the spirit, and it has shown me that the political significance I saw in Gontshi’s courtroom practice was also visible to his contemporaries.
I hope you enjoyed reading these at least some small fraction as much as I enjoyed finding them. For all that we know to be critical of the seductions of the archive—and particularly the colonial archive—it’s still the best part of my job. And with that, I’ll say goodbye! Thanks to all of the editors of the Legal History Blog for inviting me to post here this month—and, more generally, for the work that goes into keeping this space available for the community of legal historians.
(Sources: Case of George, 15 November 1887, box 1/1/321, Records of the Solicitor General’s Office, Western Cape Provincial Archives and Records Service; Obituary of Andrew Tebeka Gontshi, Christian Express, 2 May 1904.)