30 Saving Souls Through Adoption: Legal Adaptation in the Dutch East Indies

A J B SIRKS (FRANKFURT A/MAIN)

Although in principle the Dutch introduced into the East Indies the laws of the Netherlands (customary and Roman-Dutch law), they were from the beginning conscious that the different situation might sometimes call for an adaptation of a Dutch law, or even for a different approach.

Since the Dutch applied to their small European society in the East Indies the laws and customs of the motherland, insofar as applicable, we do not see much dif­ference in the matter of births, marriage and divorce between the Netherlands and the territories of the VOC (Verenigde Oostindische Compagnie-the United East- India Company). A remarkable exception is adoption, a transplant of Roman law into the Dutch East Indies and the subject of this contribution, offered with the greatest pleasure to Alan Watson, expert in, among many others things, legal transplants. We are dealing here with the adoption of non-Christians by Christians and not with, for example, adoption amongst Chinese (always allowed, since this was Chinese law) or of Christians by Christians.

It is not possible to find an ordinance introducing adoption, but it was clearly linked with baptism. With illegitimate children the situation over baptism was complicated. If both parents were Christian, they were baptized anyway, in spite of being begotten in sin; if the father was unknown but the mother had been baptized or was a Church member, they were also baptized. If the mother was non-Christian, and the father baptized or a Church member, then there would be no baptism; since there was no legal connection between father and child, they would usually be brought up by their heathen mother, and they might easily go over to these “heinous inclinations” (“grouwelijke gesindhee- den”), which would desecrate baptism.

But not all was lost for these unhappy souls. The Church Council of Batavia in Christian spirit must have accepted, perhaps as early as 1648, but certainly before 1698,^[919] the institution of adoption. If such a child had been adopted, by a deed of adoption, passed before a public notary, by Christian parents, of good reputation, it could be christened. Since the purpose was that the child should receive a Christian upbringing, these parents should be able to provide for this; thus only in exceptional cases did the Church allow an upbringing by the bio­logical mother.^[920] In 1722 the Reformed Church Council decided that adopted children would only be baptized if there was a proper deed of adoption present. The condition of a proper and correct deed of a public notary was set in order to prevent abuse. A usual passage in these deeds (but no longer considered nec­essary in 1722), that the child would be kept free from now on by the adoptive parents, points to children from slaves.^[921] Yet such a statement was useless, since the deed did not confer freedom;^[922] in any case, in 1737 the government forbade notaries to pass any deed of adoption of unfree persons.^[923] In 1754 it required notaries, in any deed of adoption, to record the religion of the natural parents, the adoptive parents, and the witnesses, for the information of the minister who would baptize the child. Further, the Deacons could adopt a child from the poor house, if their council so decided.^[924]

The purpose of adoption is clear. In the case of an illegitimate child of a pagan mother and a Christian father, it would be the only way of administering bap­tism, since otherwise it was not certain that the child would receive a good, i.e. Christian, education. Adoption provided a solution.

Now adoption was not possible in Roman-Dutch law. Legitimation was, however, granted by the government in exceptional cases, for example when the father could no longer marry the mother since she had died.^[925] (On 19 February 1799 a most peculiar case of legitimation took place.

Saving Souls through Adoption: the Dutch East Indies 367 adulterous relationship could never be legitimized.⁹ But such legitimation occurred in the East Indies, provided that a fee was paid.¹⁰ Moreover, we find adoption admitted. Since it was restricted to children of non-Christian women, and the dichotomy between Christian and non-Christian to all purposes may be equated to that between Europeans and non-Europeans, we may say that it did not interfere with the statutes and customs of Holland, applicable in the first place to the Dutch and to Europeans in general. That it could be used was due to the declaration of the application of Roman law in cases which were not gov­erned by Dutch law and statutes.

Adoption amongst Europeans was introduced out of the good intention to save and educate potential Christians, and it was certainly used for that pur­pose: we have testimony to this.¹¹ But within the context of contemporary soci­ety it offered more advantages. Since the baptismal registers served to prove one’s descent and family name,¹² baptism after adoption provided an illegiti­mate child with two parents and a name. If his wife consented, a man could now adopt (with his wife) a child he had fathered by another woman. Or, if a couple had remained childless, they could adopt an indigenous child.¹³ In all probabil­ity the adoptive father did not have to state that he was the father or that the child was of another (Christian) father.

There were always illegitimate children, since there were always many unmarried men in the East Indies, and many fewer European girls. This situa­tion certainly caused the Company headaches. It employed almost exclusively men, certainly in the beginning of its enterprise. This posed problems as soon as its settlements stabilized, particularly since slavery was almost from the begin­ning a vice which even the Company itself found hard to resist.

⁹ S van Leeuwen, Het Rooms-Hollands-Regt (Amsterdam, 1708) 99. On the absence of adop­tion: H Grotius, Inleidinge tot de Hollandsche rechts-geleerdheid, (repr. Leiden, 1963) I.6.1.

¹⁰ 25 January 1735, NIP, supra n.1, 4.333.

¹¹ For example, Johan A. Schilling adopted four children to provide for their education, and he saw to that in his testament, drawn up 9 December 1782 at Amboina, and in his codicil of 17 September 1793, including the legacy of a slave to one of them, to be sold later on to pay for the journey to the Netherlands. But in the case of Rachel Voerman, the education might have served to raise the value of the girl (see supra n.5).

¹² See, for example, NIP, supra n.1, 6.695 of 16 August 1754.

¹³ Perhaps the case with Lodewijk Hoedts and Maria Lea Dirksz, who adopted a woman and her daughter Lesia, and four boys, all bearing the name Hoedts. Maria instituted all the boys and Lesia as universal heirs, expressly stating that they had been adopted as their own legitimate children (tes­tament of 16 November 1797, Amboina).

¹⁴ 11 December 1620, NIP, supra n.1, 1.82.

government discovered this and the penalty was increased. To the correction a fine was added, attempted concubinage was also made punishable, the concu­bines too were fined, slave women and men involved were confiscated and their owners corrected, Christians (men and women) who had carnal conversation with Moslems or pagans were corporally punished or fined or both, while the non-Christian who provoked this was capitally punished.

The culture shock apparently soon passed, since the policy of encouraging Europeans to marry native women was more realistic. In 1633 those who mar­ried such a woman were paid their salary fully in India. (Normally salaries were paid out only partially, while the remainder was saved by the Company and, after deduction of advances, and the addition of any proceeds from things sold in India—such as real estate which only residents could possess—paid out in the Netherlands upon return).¹⁷

What also aggravated the problems was that the hard pioneer life apparently led many of the women present in Batavia to return home, as it did men. The government restricted this. No widows or unmarried girls were to return, unless they were employed by a married family. Men had to have been a certain time in India before they could return. Those men who were married to native women had to provide for the support of these in their absence.¹⁸ This was an improvement, since in 1617 they simply were forbidden to return home. But did they come back to Batavia? The point was that the Company had to take care of the children of such loose unions, and there were a lot of them; in fact they easily outnumbered the purely European children. This problem did not only exist in Batavia.

The culture shock passed, but the supply of European women remained disproportionately low (notwithstanding the death rate among the men), and

¹⁵ S van Leeuwen, supra n.9, 472 and 474: infamy, banishment, fine; although with regard to the incest van Leeuwen puts the question whether a more severe punishment would not be more appro­priate.

¹⁶ 20 July 1622, NIP, supra n.1, 99-102.

¹⁷ De Haan, Oud Batavia (Batavia, 1935) 419-20; idem, Uit de nadagen van de ⁱⁱLoffelijke Compagnie”. Een keuze uit de geschriften (Amsterdam, 1984) 43.

¹⁸ 6 September 1633, NIP, supra n.1, 1.297.

Saving Souls through Adoption: the Dutch East Indies 369 marriage did not appeal where slavery provided opportunity, and so concubi­nage became a regular feature of East Indian European society. This, and mar­riage, led soon to a mestizo society, described and analysed by Jean Gelman Taylor and Leonard Blusse.^[927] At first mostly slaves from the Indian coastal region were imported. One may imagine that where the mother usually spoke Portuguese, Portuguese would become a dominant language among the mesti­zos in seventeenth century Batavia.

The Europeans often wanted to give their illegitimate children some legiti­mate status, and for that adoption proved well suited, even if the mother was, as it appears, sometimes a Christian native, and the purpose of saving a person for Christianity was not then so clear or necessary. We see sufficient confirma­tion of this. The archives of the notaries in Jakarta are voluminous, and consul­tation involves an arduous journey, but we possess some well documented case histories which prove that the practice was present in even the highest circles of society and far from frowned upon.

Cornelis Chastelein, Councillor of India, who died in 1715, and who is famous for his testamentary establishment of the Christian community of Depok, adopted on 5 June 1693 his daughter Maria, who must have had a slave mother.^[928]

In 1778 and 1779 the government sold the estate of Tjampea (the same size as the province of Utrecht, one of the Seven United Provinces, some 1,400 square kilometres or 550 sqare miles) to Willem Vincent Helvetius van Riemsdijk, a very rich man (who had to borrow, however, about half of the purchase price). This Van Riemsdijk died in 1818 and left the estate to all his legitimate and adopted children and one grandchild, which amounted to fifteen beneficiaries. He left it as a fideicommissum, to be transmitted to their legitimate descendants until the fourth grade. These latter would be free to alienate their portion. In 1928 the government tried to regain the estate. It had to deal with more than 300 co­proprietors! It appeared then, that it was desirable to map all Van Riemsdijk’s descendants, and we owe to this a thick book with their genealogy.^[929]

Van Riemsdijk had fourteen children from his marriage, and adopted, after the death of his wife, ten children, all born after her death. It is assumed that all but one were his biological children, although one of his sons recognized and

legitimized, through marriage with their mother, three of them.^[930] Also one of his sons, Jeremias Jacobus, adopted, together with his wife (they had no children of their own), a girl, daughter of one Pierre and an unknown mother. And another son, his namesake Willem Vincent Helvetius Jr, adopted, together with his wife (they too did not have children of their own), three children, of other parents. A third son, Scipio Isebrandus Helvetius, never married but had eight children from two free non-Christian women, Bamie and Manies, all of whom he adopted.

Here we see an interesting phenomenon: many of Scipio’s children were bap­tized with their father’s family name reversed: Kijdsmeir. This reversal, appar­ently to indicate an adoption, is not an isolated case. The names Esreteip (Pieterse revered) and Rhemrev (Vermehr) are also known. In the last case we see in the next generations the Christian name Vermehr added, presumably as a joke. But it also occurred in the case of a slave woman of Cranssen, who was freed and baptized. She bore the family name Nessnarc, whereas her child, adopted by Cranssen, got the name Cranssen.^[931] Only in Surinam did slaves sometimes receive on manumission the reversed name of their manumitter; in the East Indies it was certainly not the custom. Another case is Ednenov: a cer­tain Von Ende married in 1854 the daughter of a slave woman, called Rosalie Ednenov, born in 1831. Are we to presume that he had adopted a freed slave girl of his own? The adoption did not automatically bar a union.^[932] But Governor­General Mossel (mussel) gave his adopted child Arnolda, born from his slave Jasmina van Soembawa, the family name Schulp (scallop).^[933]

This brings us to the next point: succession. Was the link between non­Christian mother and child broken by adoption? From a case of 1809 it appears that the practice was that the mother who gave her child in adoption professed, in the deed of adoption, a complete renunciation of all claims in the matter of succession.^[934] If she did so, then the child’s descendants or its adoptive parents would be its legitimate heirs. On 1 October 1777 a couple had adopted Paulina, the daughter of the free woman Manies (who stated that the child had been fathered by the adoptive father). In the deed of adoption she had declared that she did not only renounce the birthright in her daughter, but also the right to inherit from her, and she stated that she handed over her daughter to the adop­tive parents without any reservation. This was not improper or illegal. On the

Saving Souls through Adoption: the Dutch East Indies 371 contrary, on 9 May 1769 the government had expressly prescribed that the deeds of adoption should contain a statement whether or not the mother renounced her right of inheritance. It wanted to end the problems caused by adoptions without such provisions. The adoptive parents were considered to be the true parents of the adopted child if it should die without descendants, whether it had made a testament or not (parents had a legitimate portion). On the other hand the adopted child held in such a case a right of inheritance to both its biological and its adoptive parents.^[935] This ruling was made primarily, it seems, for non­Christian adopters but, as this case shows, applied also to Christian adopters. Here the adoptive father had died; his widow had died later on, leaving a testa­ment in which she had instituted Paulina as sole heir. But Paulina had also died in the meantime. Now Manies claimed the estate as the biological mother of Paulina. Clearly her renunciation barred this: the next-of-kin of both adoptive parents were entitled to the inheritance, which was split for this purpose in two parts.^[936]8

Adoption had a further aspect. How far did it go? Did the adoption bring about a position in succession equal to that of a legitimate child? Van Riemsdijk had first instituted all his legitimate, and later on in a codicil his adopted chil­dren, as heirs, so there is no way to say from this what was the case. In 1853 the Council of Justice of Batavia decided that unless an adoption had been expressly restricted to the purpose of giving the child a good education, it implied the wish to give a right of inheritance ab intestato. The Council said that under the suc­cession laws (as existing until the Civil Code of 1848), particularly the Edict of 1 April 1580, illegitimate children did not have any intestate inheritance rights at all. So perhaps it thought that if adoption was to improve their situation— and that was the intention—it had to be here.^[937]

But the Council of Justice in Semarang had a different opinion on this. A cer­tain J C Sch had adopted in 1811 a child, born in 1807 of a Chinese woman.

In the deed the child was called by its Christian names, the adoptive father declared his intention to give the child a Christian education and to do whatever a Christian father was expected to do, and the mother renounced any birthright she had. In 1852 this child, JH, died, leaving behind four legitimate children. JC died a year later, putting his estate under the care of the Orphan’s Chamber of Semarang. Presumably this was to provide for the education of three children of his, two adopted and one recognized, who were still minors. His grandchildren, however, wanted their share and sued the Orphan’s Chamber. They stated,

rather peculiarly, that their father had not been an illegitimate child but a younger brother of the de cuius, and secondly that adoption implied a legitimate right of succession. The court first decided that the deed of adoption had full probative value, and that consequently, since the baptism had followed it, JH was JC’s child. Further, since the deed also showed that JC had not wanted to grant JH any inheritance right, it followed that JH—and in lieu of him his legit­imate heirs—could not claim any part of the estate as legitimate portion.³⁰

Other questions were also answered in this case. JC had adopted in 1844 two children, daughters of a native woman. It is not said whether he had registered them but we should assume he did. Later he recognized a third child of that native woman. In his testament he had appointed, inter alia, a guardian over the three girls. The Orphan’s Chamber stated that only it was entitled to do this, that adoption never implied the power to appoint a guardian, and even with rec­ognized children it could not be deduced from the law. The Council of Justice of Semarang rejected the Chamber’s claim. In appeal the Procureur-Generaal followed the interesting reasoning that, since the adoption was to be judged according to Roman law, the adoptive father did not have the right to appoint, by testament, a guardian because CJ 8.47.10 did not imply this.³¹ As to the rec­ognized child, however, the power to appoint a guardian was the implication of paternal power, and recognition aimed at granting the recognizing father such power. Consequently the appointment for the two first children was invalid, but that for the third child valid. The Supreme Court followed his opinion.³²

Litigation also solved another problem. Since a notification under the said resolution suggested there had been an adoption, it could be inferred that the child would bear the father’s name.³³ Here the Supreme Court romanized the East Indian version of adoption since, as we saw, there had been complete free­dom in this respect; yet some freedom remained. We see an adoptive father giv­ing his name in combination with that of the natural father to his adopted children (see below n. 54).

The question of whether an adoption implied a right of succession ab intes­tato to the estates of the adoptive parents was again discussed in two law suits sixty and seventy years later, both deriving from one famous inheritance. Although the outcome was the same as in the case of JC Sch, these cases

will be treated in extenso since, first, the question arose in a different context and, secondly, they are illustrative of the social setting of adoption and of what

³⁰ Hooggeregtshof, 9 April 1857, RNI 14, 1857, 354-60.

³¹ How he reached this is unclear, since this constitution deals with succession. Perhaps he thought that Justinian’s preference for maintaining the link between the adoptive son and his nat­ural father implied that as soon as the adoptive father died, the son returned to his natural father’s potestas? It is in any case not classical Roman law.

³² Hooggeregtshof, 24 July 1855, RNI 11, 1855, 270-9.

³³ Hooggeregtshof, 4 January 1866, IWvhR 134, 1866, 10. The missionary couple Michaelis had adopted on 2 April 1819 a child of a Chinese mother and unknown father, declaring that they wanted to give it a Christian upbringing, and giving it the family name Coster. When this adoption was later registered, the Registrar (who was fined after a regular check) had made a mistake accord­ing to the Supreme Court: he should not have accepted this name. was considered great wealth in East India in the early nineteenth century. In 1833 there died in Batavia Augustijn Michiels, who had been commander and colonel of a civic guard in 1825. His father Jonathan,^[938] who had done well, had bought in 1778 for 26,400 Rds. the estate of Kalapanoenggal. This estate pos­sessed a so-called birds’ mountain (“vogelberg”), in which swallows nested. These birds-nests, which the locals had to collect as corvee (so at no cost to the owner), were much sought after by the Chinese and provided a very high rev­enue (in 1834, 140,000 guilders). In 1789 the estate was estimated at 180,000 Rds. Augustijn, who possessed other estates (his total assets amounted to some two and a half million guilders) lived the life of a grand landlord. His country house Tjitrap had 117 slave servants, forty-eight free servants, twenty-four servants in the stables, twenty-eight grasscutters, twenty for the cow corral, a smith and a saddlemaker, four dancing girls, two topeng (mask) players, and two gamelan players; 362 horses were at the disposal of his family and guests. The mainte­nance of the entire house cost him about a 100,000 guilders per annum. Augustijn was married, but was survived by only one daughter, Agraphina Augusta, married to a European (who himself adopted a son with his wife for witness).^[939] But he also adopted illegitimate children. In his testament he insti­tuted as universal heir his legitimate daughter, bequeathing fideicommissa to his adopted children, but the pearl of his estates, Kalapanoenggal, went to Agraphina Augusta under the condition that it should revert to his adopted children once her legitimate line had died out. Augustijn died in 1833. Kalapanoenggal was estimated that year at 1,200,000 guilders.

Augustijn Michiels' adopted? son Michiel, who died in 1859, had adopted, together with his wife, a daughter in 1821. His inherited estates devolved on her apparently on account of the fideicommissum. The question arose whether she had to pay succession tax. In 1717 a succession tax of 5 per cent on real estate had been introduced, except in the case of ascendants and descendants.^[940] The government decided in 1767 that for illegitimate children the rate of 5 per cent on real estate also applied, even if the de cuius was their mother or declared (adoptive) father; only legitimation would help.^[941] In 1797 the exception was lifted and the rate for all others doubled, but the exception returned in 1836.^[942] Apparently the court of first instance had decided that this daughter was a descendant, but that the succession tax law as existing in 1859 applied to her; this meant that she did not have to pay anything. The state appealed, arguing that the law as existing in 1833 applied. Yet the Supreme Court decided in 1866 that, first, her own adoption did not unequivocally accord her a right of inheri­tance and, secondly, that the testator apparently had not wanted to grant his adopted children such a right. Not being able to have more rights than her father, she was not a legitimate heir, and so she had to pay the full tax.³⁹

With her aunt the situation was different, but ended the same way. Agraphina Augusta got Kalapanoenggal, but died in 1875 without legitimate issue. Augustina Michiels had remained the only one of the adopted children and received half the estate (the other half presumably going to her niece). She too got into trouble with the succession tax. The State claimed that she had to pay 10 per cent, not being a legitimate descendant (in line with the 1866 decision). Augustina stated that an adoption implied full equality with legitimate children, since the East Indian adoption of children born from slaves, although borrowed from Roman law, had evolved independently and conferred more than just free­dom on them, contrary to Justinian’s Institutes 1.11.12 (apparently her mother had been a slave at the moment of her birth, but anyway this was not a proper definition of the legal problem, namely: did adoption confer ipso iure an ab intestato right of succession?).⁴⁰ Consequently she alleged that she should merely have to pay 5 per cent. The government stuck to Justinian and denied this. The Council of Justice of Batavia, apparently having learnt its lesson, decided that an adopted child could have intestate inheritance rights to the estate of its adoptive father, but only if the latter had expressly conferred such a right (thus: an East Indian development). Having such a right implied that the adoptive child was one of the descendants with regard to the tax. So Augustina had to prove that her father had adopted her fully. She produced thirteen simi­lar acts of adoption, but these did not convince the court that in her case Augustijn had had such an intention when adopting her, and since the Supreme Court confirmed this decision, she had to pay the full amount.⁴¹ What the situ-

³⁹ Hooggeregtshof, 22 February 1866, IWvhR 142, 1866, 41, confirming the decision of the Raad van Justitie Batavia of 14 April 1865.

⁴⁰ Here the prescription of 1737 that only free persons could be adopted (see supra n.5), seems to have been forgotten or fallen into disuse; or perhaps both manumission and adoption were done in these cases in one deed?

⁴¹ Raad van Justitie Batavia, 18 February 1876, IWvhR 664, 1876, confirmed by the Hooggeregtshof, 20 July 1876, IWvhR 684, 1876. The adopted child, Augustina Michiels, born of the slave Thalia belonging to Augustijn Michiels, had been adopted and baptized by him and his wife—with other children fathered by him, although they also had one legitimate daughter—and she received the name Michiels (so it was before 1828). Michiels even appointed a guardian for her, who was officially acknowledged. Yet this was not considered an indication that he wanted her to have a right to the inheritance, but merely as in line with his desire to take care that she had a good education. In a case of non-Europeans the Hooggerechtshof decided that adoption never established a “maagschap” (kinship), and that in any case public law could not be set aside, so that the adoptive person had always to pay the rate for extranei. In short, adoption amongst non-Christians was, as with Christians, never a complete reception from Roman law. (Hooggeregtshof, 31 August 1865, IWvhR 117, 1865, 164). See also on the case, except the verdict, F de Haan, “De laatste der Mardijkers”, in Bijdragen to de Taal-, Land- en Volkenkunde (1917) 219.

Saving Souls through Adoption: the Dutch East Indies 375 ation was with an adoption made after 1848, under the vigour of the Civil Code, is not known. One might argue that in that case the adoptive child would have to be considered a recognized child (the adoption being a special kind of recog­nition) and would therefore be a legitimate heir ab intestato, be it only for half a share if there were legitimate children present.

The arrival of civil codes, modelled on those made for the Netherlands pur­suant to the principle of concordance between the civil law in the motherland and colonies, was also to mean the end of adoption for Europeans. The Regulations on the Register of Births, Deaths and Marriages of 1828 (only for Europeans and those equated to them),^[943] which replaced the Church registers, did not know of adoption, anticipating as it did the new legislation. Illegitimate children could be recognized only by male Europeans, and took a second rank (after legitimate children).^[944] The introduction of the Register also meant there was now an official division in society between Europeans and non-Europeans. Baptism was no longer of importance: State and Church had been separated. For the Europeans adoption would now lead to recognition or to nothing. To give a deed effect, they could only turn to the Registrar, who again only accepted a recognition. It made their extra- or non-marital children European, but also second rank children. If they did not, their children would remain natives.^[945] Further, recognition was not possible after one year of marriage, which barred, contrary to the usual adoption, legitimization of spurious children. Immediately the Governor-General Du Bus was asked how children adopted in accordance with the existing custom of the East Indies should be registered? As recognized children, was his reply, but this evidently did not do.^[946] Within a year, in 1830, a resolution was added to the said Regulations that the Registrars had to register also those illegitimate children notified by Christians who declared that they would take care of these children and bring them up in the Christian faith. Their mothers had to consent. It did not matter whether the notifier was the father or not. There was a restriction now, however: spouses could now only adopt ille­gitimate children if these had been born before their marriage.^[947] It is likely that the notifier had to first make a deed of adoption, and then to go to the Registrar

and fulfil the prescriptions.⁴⁷ The reasons for De Bus’ giving in are not known. Did the Governor-General bow to the pressure of established East-Indian fami­lies? Or to the argument that it was better to have adopted but undoubtedly Christian halfbloods than recognized but dubiously Christian (and more likely Muslim) halfbloods?⁴⁸ De Bus’ concession survived the introduction of the Civil Code in 1848, in spite of the objections to it, namely that the “here so-called” adoption had no, or deficient, legal consequences. But in 1846 the consideration prevailed that concubinage was a necessary evil, leading to many natural chil­dren whom one should not rob of the possibility of legitimation, particularly since it was generally impossible for European officials of lower rank to contract a legal marriage.⁴⁹

The new legislation also presented a new problem. In 1834 a Jew in Banjoemas wanted to register on the basis of the Resolution of 1830 (as it was now the custom to say) an illegitimate child of his from a non-Christian woman. The Registrar must have asked him whether he wanted to raise the child in the Christian religion, because upon his denial the registration was refused.⁵⁰ At a higher level this was not considered right. The said Regulations of 1828 had equalized Jews with Christians and it could not have been the intention of the law-giver to force Jews to raise their illegitimate children in another religion than their own. Supreme Court and government shared this opinion and an order was issued to this effect.⁵¹

Further, a recognition could apparently set aside an adoption performed under the pre-1829 regime. One son of WVH van Riemsdijk recognized, and subsequently legitimized, through marriage with their mother, three girls adopted by his father (see above n. 22). Would it have been different if his father had expressly granted these girls succession rights, thus making the adoption perfect?

The resolutions of 1769 and 1809 on the inheritance rights of the natural mother remained valid after the 1830 resolution. But after the introduction of

⁴⁷ In the case of J H Sch..... a deed was drawn up first, after which the girls must have been reg­

istered; see supra.

⁴⁸ Perhaps the archives in Jakarta may yield the answer. Yet certainly the second possibility should not be ruled out; the government was undoubtedly partial in religious matters.

⁴⁹ H L Wichers in his report on the transitory articles regarding the introduction of the Civil Code, RNI 13, 1856, 376—7 on art. 61. Did the government have in mind the impossibility of marry­ing European women?

⁵⁰ It was a small world in those days and the Registrar must have known that he was Jewish.

⁵¹ See for the entire case d.K. (der Kinderen?), RNI 12, 1855, 9—17. The observation of the com­mentator, that the resolution granted the right of declaration only to Christians (he complained that Christians are granted what Europeans are denied) cannot hold: Jews were equated with Christians in this respect too. Nor is it completely right that before the 1830 resolution it was not required that one stated that one wanted to raise the child in the Christian religion. It is true that it sufficed to refer to a good education, but from the very beginning of adoption (or rather the civil effect of it by the registration in the baptismal registers) the raising in the Christian religion had been the motive of the adoption. The resolution of 9 May 1769 dealt, it is true, with adoptive fathers of all religions, but the adoptions among non-Christians were governed by the native laws, to which the 1830 reso­lution did not apply. The 1769 resolution merely dealt with the succession to the estate of any adopted child. the Civil Code in 1848 a new problem arose. An unwed mother had to recognize her child in order to establish family ties—and inheritance rights—between her and the child. But could a native mother recognize a European child? And could a native inherit ab intestato from a European? These were questions generated by the new legal segregation, which were raised in a case of 1864-1865. The Supreme Court conceded that recognition had only been granted to Europeans, but it decided that the exception of the 1830 resolution extended also to natives. By consenting to the so-called adoption the native mother was assumed to rec­ognize her child. Inheriting was also possible, since natives were not expressly mentioned amongst the persons unworthy of inheriting. Thus the heirs had to share the estate with their native mother.^[948]

Thus adoption, itself adopted from Roman law and subsequently adapted, was a convenient way in the East Indies to give illegitimate children a legal and legitimate status, and even succession rights, and to provide barren couples with legitimate children. The institution was limited to the East Indies because in the motherland adoption was considered alien to true Dutch ways, and it took until 1956 before adoption became possible, and then only in a quite restrictive way.

The remarkable resolution of 1830 also meant adoption survived longer than would otherwise have been the case when Roman-Dutch law was replaced in the East Indies on the 1 May 1848 by the Dutch-Indies Civil Code (for Europeans), the NIBW, which did not acknowledge adoption, and which the 1828 RegulationsZRegistration anticipated.^[949] The resolution remained in force until it was withdrawn in 1867.^[950] Adoption for non-Christians remained, but was applied to them under their own law (for example, for the Chinese accord­ing to the law of China, although certain Indian-Chinese rules had come into existence and were applied). The existing cases of adoption were to be judged under the former law, and would die out in due course.

Yet: would it not have died out one day anyway? Let us return to the Van Riemsdijks. The three daughters whom Willem Vincent Helvetius van Riemsdijk Sr had adopted were all recognized by one of his sons and legitimized, the day after, through his subsequent marriage with their mother in 1844.^[951] At that time it was already clear that a Civil Code, brought from another country and by people from another culture, and with it a new arrangement of society, would come into existence. The norm would be civil marriage, the only source of legitimacy except for letters of legitimation. Did not adoption really die together with the old mestizo society that had generated it?