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Jus Soli and Jus Sanguinis in the Colonies: The Interwar Politics of Race, Culture, and Multiracial Legal Status in British Africa


In April 1929, an unremarkable man—a local entrepreneur and defendant in a minor lawsuit—entered the High Court of Nyasaland (contemporary Malawi) and made a remarkable gesture. The son of an Indian immigrant and an African woman, Suleman Abdul Karim declared himself a “non-native” and that he should consequently be tried as such. The lawsuit brought against him concerned the ownership of a Ford truck for which he had failed to complete payment. Approximately ten months earlier on June 28, 1928, Ernest Carr of Blantyre, Nyasaland—a local auctioneer and businessman who frequently ran advertisements in The Nyasaland Times during the 1920s—had sold the Ford to Karim with a written agreement that it would be paid for with £30 as a down payment, £20 on July 31, 1928, with the remaining £50 to be paid in monthly installments of £10 starting August 31, 1928. All told, this business transaction was intended to be resolved expeditiously, with its completion by the new year of 1929. However, the minor expectation that this contract had promised was not fulfilled. Two payments were made, an initial one on the day of sale for £30 and a second several months later on November 16, this time for £8. Karim defaulted on the remaining amount. Furthermore, he failed to make an insurance premium payment of £10 to the African Guarantee and Indemnity Co. Ltd., for which Carr was a local agent. Despite these defaults, Karim had not returned the Ford. Consequently, after several more months elapsed, a claim against Karim came before the High Court on April 11, 1929.

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1. Malawi National Archives (henceforth MNA) J5/2/73:46, Folio 1.

2. MNA J5/2/73:46, Folio 1.

3. For examples of work that has utilized court cases to address broader issues of race and identity, see Clifford James, The Predicament of Culture: Twentieth-Century Ethnography, Literature, and Art (Cambridge: Harvard University Press, 1988), ch. 12; Gross Ariela J., What Blood Won't Tell: A History of Race on Trial in America (Cambridge: Harvard University Press, 2008); Pascoe Peggy, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: Oxford University Press, 2009).

4. MNA J5/2/73:46. See also MNA s1/705I/30, April 19, 1929, Folio 3.

5. MNA J5/2/73:46.

6. Ibid.

7. Ibid.

8. For separate discussions of this case, see Mandaza Ibbo, Race, Colour and Class in Southern Africa: A Study of the Coloured Question in the Context of an Analysis of the Colonial and White Settler Racial Ideology, and African Nationalism in Twentieth-Century Zimbabwe, Zambia and Malawi (Harare: SAPES Books, 1997), ch. 6; and Lee Christopher Joon-Hai, “The ‘Native’ Undefined: Colonial Categories, Anglo-African Status and the Politics of Kinship in British Central Africa, 1929–1938,” Journal of African History 46 (2005): 455–78.

9. On the use of a panoramic, imperial view on matters of legal development, see especially Benton Laura A., Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002); and Benton Lauren A., A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge: Cambridge University Press, 2010).

10. Chatterjee Partha, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton: Princeton University Press, 1993), 14.

11. Goldberg David Theo, The Racial State (Malden: Blackwell Publishers, 2002), 2.

12. Brubaker Rogers, Citizenship and Nationhood in France and Germany (Cambridge: Harvard University Press, 1992); Marx Anthony, Making Race and Nation: A Comparison of South Africa, the United States, and Brazil (New York: Cambridge University Press, 1998).

13. Anderson Benedict, Imagined Communities: Reflections on the Origin and Spread of Nationalism, rev. ed. (London: Verso, 1991), 141–43.

14. On colonial states, see in particular Berman Bruce and Lonsdale John, Unhappy Valley: Conflict in Kenya and Africa (London: James Currey, 1992); Chatterjee Partha, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton: Princeton University Press, 1993), ch. 2; and Young Crawford, The African Colonial State in Comparative Perspective (New Haven: Yale University Press, 1994).

15. For an African historian's perspective, see Cooper Frederick, African Since 1940: The Past of the Present (Cambridge: Cambridge University Press, 2002).

16. Chatterjee Partha, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton: Princeton University Press, 1993), 18.

17. Arendt Hannah, The Origins of Totalitarianism (New York: Harcourt, 1994 [1951]).

18. Chatterjee, The Nation and Its Fragments, 20.

19. Chatterjee, The Nation and Its Fragments, 18–24; and Bailkin Jordanna, “The Boot and the Spleen: When Was Murder Possible in British India?Comparative Studies in Society and History 48,(2006): 473.

20. On this quoted idea, see Mehta Uday S., “Liberal Strategies of Exclusion,” in Tensions of Empire: Colonial Cultures in a Bourgeois World, ed. Cooper Frederick and Stoler Ann Laura (Berkeley: University of California Press, 1997), 5986; and Mehta Uday Singh, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press, 1999).

21. On the politics of the Cape Colony and debate over its liberal politics, see Crais Clifton C., White Supremacy and Black Resistance in Pre-Industrial South Africa: The Making of the Colonial Order in the Eastern Cape, 1770-1865 (New York: Cambridge University Press, 1992); Keegan Timothy J., Colonial South Africa and the Origins of the Racial Order (Charlottesville: University Press of Virginia, 1996); Ross Robert, Status and Respectability in the Cape Colony, 1750–1870: A Tragedy of Manners (Cambridge: Cambridge University Press, 1999); Elbourne Elizabeth, Blood Ground: Colonialism, Missions, and the Contest for Christianity in the Cape Colony and Britain, 1799–1853 (Montreal: McGill-Queen's University Press, 2002); and Price Richard, Making Empire: Colonial Encounters and the Creation of Imperial Rule in Nineteenth-Century Africa (New York: Cambridge University Press, 2008).

22. See, for example, Feierman Steven, Peasant Intellectuals: Anthropology and History in Tanzania (Madison: University of Wisconsin Press, 1990); Allman Jean Marie, The Quills of the Porcupine: Asante Nationalism in an Emergent Ghana (Madison: University of Wisconsin Press, 1993); Crais Clifton C., The Politics of Evil: Magic, State Power, and the Political Imagination in South Africa (New York: Cambridge University Press, 2002); and Crais Clifton C., The Culture of Power in Southern Africa: Essays on State Formation and the Political Imagination (Portsmouth: Heinemann, 2003). For more contemporary postcolonial perspectives, see, for example, Bayart Jean-François, The State in Africa: The Politics of the Belly (New York: Longman, 1993); Mamdani Mahmood, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda (Princeton: Princeton University Press, 2001).

23. For major studies of the colonial state in Africa that have incorporated ethnicity as a key component for rule, see, for example, Young Crawford, The African Colonial State in Comparative Perspective (New Haven: Yale University Press, 1994); and Berman and Lonsdale, Unhappy Valley.

24. The classic text on indirect rule is Lugard Lord Frederick J. D., The Dual Mandate in British Tropical Africa (London: F. Cass, 1965 [1922]).

25. Mamdani Mahmood, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton: Princeton University Press, 1996), 90. For his discussion of “subject races” versus “subject ethnicities,” see also Mamdani Mahmood, “Beyond Settler and Native as Political Identities: Overcoming the Political Legacy of Colonialism,” Comparative Studies in Society and History 43 (2001): 651–64.

26. Spear Thomas, “Neo-Traditionalism and the Limits of Invention in British Colonial Africa,” Journal of African History 44 (2003): 327. Earlier examples of this argument include Afigbo A. E., The Warrant Chiefs: Indirect Rule in Southeastern Nigeria, 1891–1929 (London: Longman, 1972); Marks Shula, The Ambiguities of Dependence in South Africa: Class, Nationalism, and the State in Twentieth-Century Natal (Baltimore: Johns Hopkins University Press, 1986).

27. On class, see, for example, Kitching Gavin, Class and Economic Change in Kenya: The Making of an African Petit Bourgeoisie, 1905–1970 (New Haven: Yale University Press, 1980); Berman and Lonsdale, Unhappy Valley; Wolpe Harold, Race, Class, and the Apartheid State (London: James Currey, 1988); and Cooper Frederick, Decolonization and African Society: The Labor Question in French and British Africa (New York: Cambridge University Press, 1996). On gender and colonial states, see Hunt Nancy Rose, A Colonial Lexicon: Of Birth Ritual, Medicalization, and Mobility in the Congo (Durham: Duke University Press, 1999); and Thomas Lynn M., Politics of the Womb: Women, Reproduction, and the State in Kenya (Berkeley: University of California Press, 2003).

28. Goldberg, The Racial State, 104.

29. Robinson R. E., “The Administration of African Customary Law,” Journal of African Administration 1 (1949): 159.

30. On “legibility” as a concept, see Scott James C., Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1998).

31. On the French case, see, for example, Johnson G. Wesley, The Emergence of Black Politics in Senegal: The Struggle for Power in the Four Communes, 1900–1920 (Stanford: Stanford University Press, 1971); and Conklin Alice L., A Mission to Civilize: The Republican Idea of Empire in France and West Africa, 1895–1930 (Stanford: Stanford University Press, 1997). For the Portuguese, see Penvenne Jeanne, ‘“We are all Portuguese!” Challenging the Political Economy of Assimilation: Lourenço Marques, 1870–1933’, in The Creation of Tribalism in Southern Africa, ed. Vail Leroy (Berkeley: University of California Press, 1989): 255288; and Penvenne Jeanne, African Workers and Colonial Racism: Mozambican Strategies and Struggles in Lourenço Marques, 1877–1962 (Portsmouth: Heinemann, 1995).

32. Two important recent texts are Gross, What Blood Won't Tell; and Pascoe, What Comes Naturally. Other relevant work includes Sollors Werner, Beyond Ethnicity: Consent and Descent in American Culture (New York: Oxford University Press, 1986); Domínguez Virginia R., White By Definition: Social Classification in Creole Louisiana (New Brunswick: Rutgers University Press, 1986); Hodes Martha, White Women, Black Men: Illicit Sex in the Nineteenth-Century South (New Haven: Yale University Press, 1997); Hodes Martha, Sex, Love, Race: Crossing Boundaries in North American History (New York: New York University Press, 1999); and Stoler Ann Laura, ed., Haunted by Empire: Geographies of Intimacy in North American History (Durham: Duke University Press, 2006). For scholarship beyond the North American context, see Stoler Ann Laura, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley: University of California Press, 2002); and Levine Philippa, Prostitution, Race, and Politics: Policing Venereal Disease in the British Empire (New York: Routledge, 2003).

33. Brubaker, Citizenship and Nationhood, 31.

34. Ibid., 31–34.

35. MNA NS 1/3/2, Folio 1, 1. See also MNA s1/705I/30, Folio 1, March 31, 1930; Folio 1a, July 28, 1929, 1.

36. MNA NS 1/3/2, Folio 1, 1.

37. MNA s1/705I/30, Folio 1, March 31, 1930; MNA s1/705I/30, Minutes Section, No. 5, April 24, 1930; MNA s1/705I/30, Folio 1a, July 28, 1929, 3; MNA NS 1/3/2, 1–8.

38. MNA s1/705I/30, Minutes Section, No. 5, April 24, 1930.

39. Central Statistical Office, 1961 Census of the European, Asian and Coloured Population (Salisbury: Government Printer, 1961), 3.

40. MNA s1/705I/30, Minutes Section, No. 5, April 24, 1930.

41. Elias T. Olawale, British Colonial Law: A Comparative Study of the Interaction between English and Local Laws in British Dependencies (London: Stevens & Sons Limited, 1962), 9.

42. Ibid., especially chapters 1, 3, 4, and 5.

43. MNA S1/420/33, Folio 1. For the general file on this issue, see MNA S1/420/33, The Definition of the Expression “Native.”

44. MNA s1/705I/30, Minutes Section, No. 6, April 30, 1930.

45. MNA s1/705I/30, Minutes Section, No. 7, May 16, 1930.

46. For recent studies of the history of British citizenship, see Karatani Rieko, Defining British Citizenship: Empire, Commonwealth and Modern Britain (London: Frank Cass, 2003); Chesterman John, “Natural-Born Subjects? Race and British Subjecthood in Australia,” Australian Journal of Politics and History 51 (2005): 3039; Ward Damen, “Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines in the South Australian Supreme Court, c. 1840–60,” Journal of Imperial and Commonwealth History 34 (2006): 483504; and Lees Lynn Hollen, “Being British in Malaya, 1890-1940,” Journal of British Studies 48 (2009): 76101.

47. Bailkin, “The Boot and the Spleen,” 472, 473.

48. MNA s1/705I/30, Minutes Section, No. 7, May 16, 1930.

49. MNA s1/705I/30, Minutes Section, No. 7, May 16, 1930. See also MNA s1/705I/30, Folio 4, July 14, 1930; MNA s1/705I/30, Folio 5, July 14, 1930; MNA s1/705I/30, Folio 6, July 16, 1930; MNA s1/705I/30, Folio 7, August 6, 1930; and MNA s1/705I/30, Folio 8, August 4, 1930.

50. MNA s1/705I/30, Folio 10, November 6, 1930, 1, 2.

51. Ibid.

52. Public Record Office (henceforth PRO) CO 822/36/16, Folio 39.

53. PRO CO 822/36/16, Folio 40.

54. PRO CO 822/36/16, Folio 42.

55. For general histories of Coloured South Africans, see Lewis Gavin, Between the Wire and the Wall: A History of South African “Coloured” Politics (Cape Town: David Philip, 1987); and Adhikari Mohamed, Not White Enough, Not Black Enough: Racial Identity in the South African Coloured Community (Athens: Ohio University Press, 2005).

56. PRO CO 822/36/16, Folio 43.

57. PRO CO 822/36/16, Folios 43, 44.

58. PRO CO 822/36/16, Folio 44.

59. On colored communities in Southern Rhodesia (contemporary Zimbabwe) and British Central Africa generally, see Mandaza, Race, Colour and Class in Southern Africa; Muzondidya James, Walking on a Tightrope: Towards a Social History of the Coloured People of Zimbabwe (Trenton: Africa World Press, 2005).

60. PRO CO 822/36/16, Folios 2–10.

61. PRO CO 822/36/16, Folio 1b, 55.

62. PRO CO 822/36/16, Folio 1b, 56.

63. PRO CO 822/36/16, Folio 1b, 57.

64. PRO CO 822/36/16, Folio 1b, 57, 58. For the New Zealand case, see PRO CO 822/36/16, Folio 1a, 76, 77. West African colonies were considered as well, although persons of mixed descent were not an issue. See PRO CO 822/36/16, Folio 1b, 59.

65. MNA s1/705I/30, Folio 11, April 22, 1931.

66. MNA s1/705I/30, Folio 12a, 20 April 1931; Folio 11a, April 20, 1931.

67. Ibid.

68. Ibid.

69. Ibid.

70. MNA s1/705I/30, Folio 12, May 21, 1931.

71. MNA s1/705I/30, Folio 15, August 1, 1931, 1.

72. MNA s1/705I/30, Folio 16, August 18, 1931, 1–3.

73. MNA s1/705I/30, Folio 17d, August 27, 1931. See also MNA s1/705I/30, Folio 17h, July 8, 1931. Uganda would also agree with this position. See MNA s1/705I/30, Folio 21, Annexure IIIa, March 10, 1933, 45. With regards to separate education and how it might create a separate class, see MNA s1/705I/30, Folio 17g.

74. MNA s1/705I/30, Folio 17c, September 10, 1931; PRO CO 822/36/16, Folio 26, September 10, 1931.

75. MNA s1/705I/30, Folio 17c, September 10, 1931; PRO CO 822/36/16, Folio 26, September 10, 1931.

76. MNA s1/705I/30, Folio 17b, July 9, 1931; PRO CO 822/36/16, Folio 25, July 9, 1931.

77. Ibid.

78. MNA s1/705I/30, Folio 17, January 12, 1932, 1.

79. MNA s1/705I/30, Folio 21.

80. MNA s1/705I/30, Folios 21, 29, 30.

81. MNA s1/705I/30, Folio 21, Annexure VIII, 53, 54. For recent studies of race in Tanganyika and Zanzibar that have illuminated this issue there, see, for example, Glassman Jonathon, “Slower than a Massacre: The Multiple Sources of Racial Thought in Colonial Africa,” American Historical Review 109 (2004): 720–54; Brennan James R., “Blood Enemies: Exploitation and Urban Citizenship in the Nationalist Political Thought of Tanzania, 1958–75,” Journal of African History 47 (2006): 389413; and Metcalf Thomas, Imperial Connections: India in the Indian Ocean Arena, 1860–1920 (Berkeley: University of California Press, 2007).

82. MNA s1/705I/30, Folio 21, Annexure VIII, 53, 54.

83. Ibid.

84. Ibid.

85. MNA S1/420/33, Folio 2, “A Bill to Amend and Define in More Precise Terms the Definition of the Expression ‘Native,’” Clause 2. Included in MNA S1/420/33, Folio 1, December 8, 1933.

86. MNA S1/420/33, Folio 2, Clause 3; MNA S1/420/33, Folio 3, Clause 5; and MNA S1/420/33, Folio 5.

87. On the importance of visual criteria elsewhere in the British Empire, see Bailkin, “The Boot and the Spleen,” 473.

88. MNA S1/420/33, Folio 1, December 8, 1933.

89. MNA S1/420/33, Folio 9, March 1, 1934.

90. MNA S1/420/33, Folio 17, April 30, 1934.

91. MNA S1/420/33, Folios 19 to 25.

92. MNA S1/420/33, Folio 28, December 2, 1935.

93. MNA S1/420/33, Folio 26, December 3, 1935.

94. MNA S1/420/33, Folio 31, October 21, 1937; and MNA S1/420/33, Folio 32, October 25, 1937.

95. MNA S1/420/33, Folio 34, January 12, 1938.

96. MNA S1/420/33, Folio 35, January 17, 1938; MNA S1/420/33, Folios 38 to 41; MNA S1/420/33, Folio 42, February 9, 1938; and MNA S1/420/33, Folio 43, February 9, 1938.

97. MNA S1/420/33, Folio 44.

98. Dubow Saul, Racial Segregation and the Origins of Apartheid in South Africa, 1919–36 (New York: St. Martin's Press, 1989); Evans Ivan, Bureaucracy and Race: Native Administration in South Africa (Berkeley: University of California Press, 1997); Evans Ivan, Cultures of Violence: Lynching and Racial Killing in South Africa and the American South (Manchester: Manchester University Press, 2009).

99. Biko Steve, I Write What I Like: Selected Writings (Chicago: University of Chicago Press, 2002).

100. For an important recent study, see Ngai Mae M., Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton: Princeton University Press, 2004).

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