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FIVE

Not a White Barrister

There is still a Natal Law Society which . . . keeps alive the bright flame of bigotry and prejudice.

Natal Witness, September 5, 1894

WITH A RISING INDIAN POPULATION in Natal continuing to alarm many of the European colonists,¹ the Natal Parliament undertook to limit Indian influence by prohibiting Indians from registering as voters.² When in the late South African fall of 1894 Gandhi agreed to stay in Natal and fight the legislature on this issue, the process of enacting legislation was well under way. The Franchise Law Amendment Bill had already received its second reading and was poised for its third and final reading in early July. Against insuperable odds—the bill enjoyed the unanimous support of the legislature—Gandhi began his public work by lodging with the Natal Legislative Assembly (the larger of the two parliamentary chambers) the first of many petitions he was to write while in South Africa.³

GANDHI AS PETITIONER

This petition, the first known formal handiwork of this novice lawyer, stands as a superb reflection of Gandhi’s developing legal mind. The petition is quite well organized—much like a legal complaint—with a set of numbered paragraphs setting forth the identity of the petitioners, the gist of their grievance, and a concluding prayer for relief. The petition is authoritative, citing the writings of Sir Henry Sumner Maine, Professor Max Muller, and Sir George Birdwood, as well as the public statements of Sir Thomas Munro and Frederick Pincott. Compactly written, it is clear, straightforward, and easy to follow. Its tone is polite and deferential, yet firm. There is not so much as a hint of anger, but neither does it lack in confidence. Indeed, it is written with complete self-assurance.

The petition responds to the legislature’s argument that Indians should be denied the franchise because they lacked institutions of representative government in their home country. Gandhi rests his response on the historical record, citing the long existence of local self-government in India’s municipalities, the elections held for the governance of castes, the councils elected to govern trading communities, and the representative parliament established by the Indian state of Mysore. Gandhi concludes his petition by quoting remarks made by leading European figures, all in praise of the Indian character. The refined argument Gandhi makes befits an English barrister—careful, focused, and not at all strident. Conspicuously absent, however, is any appeal to conscience or universal human rights.

The petition was followed the next day by a letter from Gandhi and several others to the Natal premier and, just two days later, by a letter to all the members of the legislature. The letter was accompanied by a set of five questions. Question 4 provides the flavor of the document: “Do you think it just that a man should not become a voter simply because he is of Asiatic extraction?” Perhaps this was a rhetorical question. If, however, Gandhi expected answers to questions of this sort, he was revealing the naïveté of a novice political operative. The internal doubts Gandhi had about his capacity to represent the interests of his community rose to the surface in a letter he wrote to a senior advisor on July 5:

I am yet inexperienced and young and, therefore, quite liable to make mistakes. The responsibility undertaken is quite out of proportion to my ability. I may mention that I am doing this without any remuneration. So you will see that I have not taken the matter up, which is beyond my ability, in order to enrich myself at the expense of the Indians. I am the only available person who can handle the question.⁴

On July 1, the same day the questions were sent, Gandhi met with the Natal governor and followed the meeting up with a letter. He then lodged two more petitions with the legislature. Despite Gandhi’s prodigious output of words, the legislature passed the bill on its third and final reading on the 7th of July 1894. Gandhi then turned his attention to the governor, whose signature the bill required, presenting a petition to Sir Walter Hely-Hutchinson. The governor was not moved; he signed the bill. Gandhi then drafted a lengthy petition to the British secretary of state for the colonies, Lord Ripon, signed by about ten thousand Natal Indians.⁵ Gandhi’s recollection of his work on this petition demonstrates qualities that would be reflected in much of his work as a lawyer: “I took considerable pains over drawing up this petition. I read all the literature available on the subject. My argument centered round a principle and an expedience. I argued that we had a right to the franchise in Natal, as we had a kind of franchise in India. I urged that it was expedient to retain it, as the Indian population capable of using the franchise was very small.”⁶ In his career at the bar Gandhi would be known for his meticulous preparation and for a philosophy that held that the most principled action was usually that which was most effective. For now, however, this approach was unrefined and unperfected. Like his other attempts, the Ripon petition, too, would prove futile.⁷

THE MERCHANTS’ LAWYER

In mid-July 1894, while awaiting the response of the secretary of state, it became clear to Gandhi not only that the franchise battle would be protracted but also that it represented the start of a longer and more wide-ranging campaign being waged by the colonists against Indian interests. While the colony’s agriculturalists were sufficiently influential to block efforts to prohibit the continued importation of indentured servants, they were not concerned with staying the hands of those who desired to check Indian economic and political interests.

At the start of the franchise battle Gandhi had anticipated returning to India in mid-1894. With anti-Asiatic sentiment apparently on the rise and no relief in sight, what Gandhi earlier had thought to be a decisive battle he now understood to be a preliminary skirmish in a lengthy war. If he was to make a contribution to the Indian struggle in South Africa, he would have to remain. As Gandhi later recalled, “It was now impossible for me to leave Natal.”⁸

If he was to remain, he also needed to look after his own interests. Accordingly, Gandhi turned to those with money, making an arrangement with the wealthy merchants who led the Indian movement in South Africa. They had wanted to hire him, at the rather handsome sum of £300 per year, as their political organizer, but Gandhi refused, saying that he could not charge the merchants for “public work.” He reasoned that the work would not call on his skills as a barrister, that his main job would not be to perform work himself but to mobilize others to do the necessary work, that as a paid organizer he would have divided loyalties when raising money for the movement, that he needed to be able to speak his mind to the group without fear of economic repercussions, and that, in any event, the movement should be able to count on more than £300 a year for its operations.

Gandhi suggested a different tack. “Entrust me with your legal work,” he implored the merchants, promising that, in exchange, he would do their political work without charge.⁹ The merchants had some apparent reluctance to commit to this path, the reasons for which Gandhi himself recognized. “I am not a white barrister. . . . Nor can I be sure of how I shall fare as a lawyer,” Gandhi confessed to them.¹⁰ The merchants were able to set their reservations aside, however, as twenty of them agreed to give Gandhi a retainer for a year’s worth of legal services. In addition, Dada Abdulla, originally a skeptic and now one of Gandhi’s strongest backers, agreed to provide Gandhi with furnishings in the place of the monetary gift he had intended to present to Gandhi on his departure. He also paid for Gandhi’s bar admission fees and for the law books Gandhi needed to establish his practice. Gandhi took up residence in Beach Grove Villa, a prominent European section of town. Gandhi’s decision to live in an elite neighborhood was quite deliberate: “I thought that the house should be good and situated in a good locality. I also had the idea that I could not add credit to the community, unless I lived in a style usual for barristers.”¹¹ He agreed to a retainer of £300 per year, the minimum he considered necessary to run a barrister’s household.

Gandhi went about the task of setting up a practice. Despite having been called to the bar three years earlier, he had never successfully practiced law on his own. What did he know of the practice of law in Natal? His only experience in South Africa was assisting other lawyers, an experience that exposed him to but a small and rarified portion of practice and gave him very little understanding of what was required of a general practitioner. Gandhi must have reflected, too, on his failed attempt to establish a thriving solo practice in Bombay. He would not make that mistake again. So he began searching for a practice setting that would afford him access to a veteran lawyer who could counsel him on the intricacies of Durban practice. Gandhi’s timing in this matter was fortuitous, for the Natal bar had recently begun to experiment with partnerships, an arrangement previously not common in the colony.

PARTNERSHIP

Gandhi’s friend Louis Paul, the Roman Catholic Indian interpreter for the Durban courts, served as Gandhi’s eyes and ears in this effort, bringing Percy Evans Coakes to Gandhi’s attention.¹² Although Coakes was no novice at the bar—he had been admitted to practice a bit less than seven years earlier—neither was he the seasoned veteran who could have taught Gandhi tricks learned over a lifetime of practice. Perhaps Gandhi believed that he, a barrister, and Coakes, an attorney, would make a natural fit, not only because their practices would complement each other as would those of a barrister and solicitor, but also because Coakes had sometimes worked for Indian interests.¹³ Given the intensity of color consciousness in Natal, surely few white lawyers would be enthusiastic about opening their practices to an Indian barrister. A novice who brought with him the legal work of twenty Indian merchants, however, might be a different matter. In the summer of 1894, with forty-five advocates and more than one hundred nonadvocate attorneys licensed to practice in Natal,¹⁴ a lawyer who could bring with him the legal business promised to Gandhi by his “Arab” patrons would be quite a catch, assuming one could stifle his race prejudice. Coakes, who had fought before the borough magistrate in an attempt to keep the names of registered Indians on the voters’ list, seemingly had no race-based reservations and, having represented Indians, understood the benefits of representing Indian merchants. Moreover, there was stiff competition among lawyers in Natal at the time. As the Natal Mercury observed, “Competition in the labour market generally reduces the cost to the employer, and judging from the grumbles one occasionally over-hears, this inexorable law of political economy is making itself unpleasantly felt among Durban attorneys.”¹⁵

Because Gandhi was aware of the leverage he had in this market, he was to be no pushover in negotiations with Coakes. The Durban lawyer first demanded that Gandhi pay a premium to join his practice. Gandhi not only turned that suggestion down flat but, playing his best poker hand, also sent word back to Coakes, through Paul, that he was preparing to leave Durban. Indeed, Gandhi instructed Paul not to “show over-anxiety to Coakes.”¹⁶ While Gandhi’s courtroom skills may not have been very advanced, his abilities as a negotiator surely were.

A few days later, Gandhi, having heard nothing from Coakes, sent out word in the community that “unless everything was settled by next [week],” he would go. The prospect of losing Indian business must have been too much for Coakes. He immediately dropped his demand for a premium. In fact, he was now willing to give Gandhi a share of the practice’s proceeds! So confident was Gandhi in his ability to consummate the deal with Coakes on his own terms that, on hearing of Coakes’ new position, Gandhi that same day made an inquiry to the registrar of the Supreme Court about licensing. On the following day, Paul announced that Coakes had agreed to see Gandhi.

In a three-hour meeting, the Durban lawyer offered Gandhi a 25 percent share of the partnership’s profits during the first six months and 30 percent during the last six months of their yearlong agreement. Gandhi refused the offer and instead proposed that he receive a flat third for the entire year. Two days later, Coakes conceded once more, agreeing to this percentage.

Coakes sent Gandhi a draft of a written agreement to which Gandhi made alterations and additions, sending it back to Coakes. Gandhi demanded that he be given some credit for the cases that he brought in to the practice but that were to be conducted by Coakes. Again, Coakes conceded this point to his younger partner-to-be, and the two affixed their signatures to their agreement on August 4.

OBJECTION

With the partnership agreement now in place, Gandhi turned his attention to getting himself admitted to the bar—and attention this process needed. The bar was divided about his admission. Attorney General Harry Escombe, who had done some legal work for Dada Abdulla,¹⁷ had shown some solicitude for Gandhi’s welfare when, earlier in the year, he had urged his young friend to take out his advocate’s license,¹⁸ advice Gandhi would soon follow.¹⁹ Escombe’s welcome, however, was not representative. Natal’s lawyers did not look kindly upon allowing Gandhi entrance to the profession. The degree to which this opposition was based on Gandhi’s skin color, rather than the threat he posed to the economic well-being of the white bar, is uncertain. It is not difficult to imagine, however, that there must have been a renewal of the fear Gandhi’s first appearance in Durban a year earlier had caused, a fear that an Indian barrister would take Indian work away from the province’s European barristers.²⁰ Indeed, the Natal Witness surmised that it “was the loss of fees that prompted the opposition, and that has been the common verdict of the public.”²¹ Whatever the motivation, the bar establishment settled upon a strategy for keeping Gandhi out of the law business: it would not oppose Gandhi’s application on grounds of color, but would instead seek technical grounds on which to base its opposition.²²

While the bar was nominally a divided bar—that is, one entered it as either an attorney or as an advocate—in practice “there was a joint bar.”²³ The rules at the time permitted most attorneys to practice as advocates, and most advocates as attorneys. This arrangement was known as “dual practice.”²⁴ Attorneys were akin to solicitors—office lawyers who focused principally on noncourtroom matters, such as the drafting of contracts. Advocates were akin to barristers—courtroom lawyers appearing without restriction in trial courts of their choosing to argue cases.²⁵

Gandhi, admitted in England as a barrister, applied as an advocate. Prior to 1893 the requirements for admission were undemanding, but with the promulgation of a new set of rules in 1893, the requirements were strengthened. Natal would now require that the applicant pass a preliminary examination, serve two to four years of a clerkship, and then pass a final examination in Roman law, Roman-Dutch law, Natal law and statutes, and evidence. Gandhi was able to escape these relatively rigorous new admission requirements, however, by virtue of his having achieved barrister status in England. Rule 23 of the new rules governing admission stated that the Court could dispense with the usual requirements if the applicant had already been admitted as a barrister in England. Perhaps the bar’s opposition to Gandhi was heightened by resentment that this “colored” lawyer was not only applying for admission but doing so by virtue of an exemption surely not drafted with anyone other than whites in mind.

A member of the Durban bar with the unforgettable name of Gustave Aristide de Roquefeuil Labistour was appointed to represent the Law Society in the matter of Gandhi’s application for admission. At age thirty-eight already a leading member of the Natal Law Society, Labistour would later rise to the office of attorney general and be elevated to the rank of King’s Counsel. Labistour was initially suspicious of Gandhi because of Gandhi’s failure to tender, in support of his application, the original of his certificate of admission to the Inner Temple in London. Gandhi was unable to produce this document because he had given it to the Indian authorities when he enrolled to practice before the Bombay High Court prior to his ill-fated attempt to establish a practice in India in 1891–1892. It was another issue, however, which occupied Labistour’s attention when he met with the young applicant in Labistour’s office on August 20. The Natal attorney peered through his spectacles at the one who would be Natal’s first Indian barrister and demanded that he produce certificates showing the good character of his family, as well as a statement from Albert Baker as to Gandhi’s fitness to practice law. Labistour also expressed his dissatisfaction with the two certificates of character Gandhi had obtained from Natal merchants of European descent, claiming that they knew nothing of his character. Labistour advised Gandhi that he needed to produce evidence of his good character from people who knew him, like Dada Abdulla, rather than European merchants who had only a recent knowledge of Gandhi. Gandhi noted that he had made Abdulla’s acquaintance only in Natal, to which Labistour responded that since they hailed from the same region of India, the Gandhi and Abdulla families should at least have some knowledge of each other. Labistour then promised Gandhi that should Gandhi produce an affidavit from Abdulla, Labistour, who himself had done some legal work for Abdulla, would withdraw as counsel for the Law Society, his objections having been satisfied. Deeply disturbed by Labistour’s demands, Gandhi noted to himself that had he produced Indian affidavits, the bar would have demanded European affidavits. He bit his tongue, however, and produced the required affidavit from Abdulla and, for good measure, additional affidavits from Moosa Hajee Adam and Haji Dada, as well. Labistour, true to his word, withdrew and was replaced by the attorney and advocate Edward Mackenzie Greene, one of the more senior members of the Natal bar. Labistour would later prove to be a genuine friend of the Indian cause.

In keeping with the tradition whereby the attorney general, as the leading lawyer in the bar, represented applicants for admission,²⁶ the long-bearded, severe-looking, and intellectual Harry Escombe rose before the Natal Supreme Court on Monday, September 3, 1894 to move Gandhi’s admission.²⁷ Escombe recounted Gandhi’s call to the bar in England and his subsequent admission to the Bombay High Court of Judicature. Anticipating the Law Society’s argument, Escombe explained that Gandhi had tendered the original of his Inner Temple admission certificate to the High Court of Judicature when he was admitted to practice before that court as an advocate. Greene, in opposition, argued that Gandhi had not fulfilled the requirements for admission, because he had not tendered the original of the certificate, producing instead an informal “copy of the certificate . . . being merely signed by one J. H. Farrell.”²⁸ Greene argued that this copy was insufficient. In a maneuver that spoke volumes, Greene cited previous cases in which two European applicants, Stephenson and Beatson, had been denied admission because they failed to “produce certificates that they were still on the roll.” Greene added that “the practice had been for barristers and solicitors to produce their certificates, and not simply sign an affidavit that they had been so admitted.” Greene thus anticipated an attack that the society’s position was motivated by Gandhi’s color. His argument would seem to mischaracterize Gandhi’s application inasmuch as the signed copy of his Inner Temple certificate that Gandhi produced was significantly more substantial than a self-serving affidavit. Nonetheless, Justice Walter Wragg, first puisne judge, stated that he thought Greene’s objection was proper, noting that he, Wragg, had produced his own Inner Temple certificate when asked to do so. The General Rules for Admission of Advocates or Attorneys and Candidate Attorneys to the Supreme Court of Natal, in effect at the time and promulgated just the previous year by Wragg and the other two judges now sitting on Gandhi’s case, did not actually require an original certificate.²⁹

Remarkably, no one on the bench made any reference to any standard by which the case should be decided. Wragg’s colleagues on the bench seemed, however, to sense that the society’s certificate argument cloaked its true reasons for opposing Gandhi’s admission—and with good reason. Even before Gandhi applied for admission, the local press reported that the Law Society was considering opposing Gandhi.³⁰ It is quite unlikely that the society would have known in advance of Gandhi’s application that Gandhi would tender a copy rather than the original of his Inner Temple certificate in support of his application. Accordingly, if the decision to oppose Gandhi was arrived at before the Law Society could have known of the alleged deficiency in his supporting documents, the society’s reliance on this deficiency was a pretext. Because the bar offered no ground for its opposition before the Supreme Court other than the deficiency in Gandhi’s certificate, it is reasonable to conclude that its actual grounds for opposition were ones that could not be publicly defended—race, economic self-interest, or both.³¹

Perhaps Justice John Turnbull, second puisne judge, sensed the bar’s actual motives when he differed with Wragg, stating that he had never heard of an original certificate being required. The chief justice, Michael Gallwey, joined this attack on the society’s position by noting that when he himself had applied for status as Queen’s Counsel, his representation that he was a barrister was accepted without the proof of a certificate. He undercut Greene’s misplaced reliance on the argument that affidavits were unacceptable by observing that Mr. Gandhi was not being tried for perjury. Justice Wragg, either persuaded or embarrassed by his brethren’s points, eventually embraced Justice Turnbull and Gallwey’s skepticism as to the society’s opposition, stating that he believed Gandhi’s representations and “did not wish to place any obstacle in his way.”³²

The Court, now unanimous in its rejection of the society’s objections, granted Escombe’s motion, admitted Gandhi, and swore him in on the spot—but not without conditions. The court instructed Gandhi to remove his turban to conform to the rules of the Court. The same turban that Gandhi had refused to remove while in the magistrate’s court he now removed. While his friends would voice their misgivings about this act of obedience, Gandhi decided that his admission victory and his turban defeat constituted an outcome with which he could live. He bowed low and left the courtroom.³³

NATAL: A LEGAL WORLD APART

Few places in 1894 could have matched the unusual texture of the legal world Gandhi was then entering. The system of prevailing law was anything but simple and pure. When Jan van Riebeeck claimed the Cape of Good Hope for the Dutch in 1652, he brought with him the Roman-Dutch law tradition then prevalent in Holland. When the Voortrekkers left the Cape for Natal nearly two centuries later, they carried with them not only this same Roman-Dutch legal tradition, which their forebears had inherited, but they also brought a touch of Cape legislation. Soon afterward, as the trekkers’ short-lived Republic of Natalia gave way to British control, the British chose not to install their own common law system. Rather, in keeping with the British policy of initially permitting former Dutch colonies to retain their legal regimes, England ordered in 1845 that “the system . . . called the Roman-Dutch Law . . . be . . . established as the law of . . . Natal.”³⁴ Shortly after Natal was given home rule by the British and just two years after Gandhi’s admission to the bar, the Natal legislature passed the Supreme Court Act of 1896, in which the supremacy of Roman-Dutch law was affirmed by the colonists themselves.

The Roman-Dutch system that formed the historical foundation of Natalian law was of a hybrid character, built of one part Roman law and one part derived from German influences.³⁵ The South African version of Roman-Dutch law had a tradition of differing from the English common law system in that, while hardly ignoring relevant previously decided cases, it gave somewhat less weight to precedent. Furthermore, South African Roman-Dutch law did not separate law from equity, nor was it codified. Ironically, after Roman-Dutch law was discarded in Holland, it maintained enough life in South Africa that its practitioners were forced to cite centuries-old treatises for the most recent authority.

This is not to say that Roman-Dutch law was immune from change. To the contrary, from the mid-nineteenth century onward, the Natalian version of Roman-Dutch law came under a clear, distinct British influence.³⁶ Legal historian Peter Spiller has observed that from the 1850s to the 1900s “Natal advocates tended to ignore Roman-Dutch law and acted on the assumption that English law prevailed in Natal.”³⁷ Indeed, one contemporary writer took the position that in “Natal the anglicising process has been carried so far as to obscure Roman-Dutch principles.”³⁸ In some areas, the trend was not simply to obscure Roman-Dutch law but to supplant it; for example, the South African inheritors of the Roman-Dutch tradition adopted the English law of evidence and civil procedure.

The organization of the legal profession in Natal was similarly lacking in clarity. Natal inherited from Roman-Dutch law the Roman division of the profession into attorneys and advocates. In Natal, however, this distinction existed in name more than in practice, as the line between these two types of legal professionals was regularly crossed by practitioners. Finding itself in the backwaters of the legal world, Natal could not be too demanding of those it admitted to the profession. As Peter Spiller has demonstrated, “Natal did not generally attract advocates of sufficient training, ability or flexibility of mind to cope with local demands.” Spiller ascribes this to several factors. Natal’s apparent emphasis on Roman-Dutch law scared practitioners away from England; Cape lawyers, who might consider moving to the Orange Free State or to the Transvaal, would not consider life in Natal’s primitive legal world; and the public’s low opinion of Natal’s lawyers prevented the profession from charging fees equivalent to those elsewhere in South Africa. This state of affairs caused Chief Justice Gallwey to remark just a year before Gandhi’s admission that “few advocates, as such, could earn more than a mere subsistence.”³⁹

These conditions resulted in low standards for admission to practice. They also resulted in the right of dual practice. Until the requirements for admission were substantially strengthened in 1893, all manner of poorly qualified men were admitted to the bar.⁴⁰ No examination was required. In 1863 the rules for admission were altered, but not significantly strengthened, to permit persons without a university education to enter the bar as advocates if they simply sat in court for two years. This system was roundly criticized until, in 1893, the requirements were stiffened considerably. From 1893 on, the quality of the bar began to improve and many more applicants were admitted on the basis of their training at the Inns of Court.⁴¹

That Gandhi was in this first wave of London-trained barristers provided yet another reason for the local bar to oppose his admission. Not only was this applicant “colored,” not only was he going to steal away business generated by Indian merchants, but he presented himself for admission on the basis of credentials far superior to those of many in the local bar. The Natal Witness, reflecting on the argument over Gandhi’s admission, editorialized on this point: “The application of Mr. Gandhi’s admission was made by the present Attorney-General, and had the support of the ex–Attorney-General; and when those two gentlemen, with a few others who might be counted on the fingers of one hand, are subtracted from the Bar of Natal, the residuum does not exactly command admiration.”⁴² It is no wonder that Gandhi received a less than warm reception.

The conditions under which Gandhi and his new colleagues at the bar practiced law in 1894 were less than ideal. The courthouse in Durban was an abysmal place. Its acoustics were terrible, it was decrepit, it was poorly maintained, and it was so poorly built that the wind could be heard “whistling [through it] on a winter’s day.”⁴³ The courthouse did not even contain a law library. Indeed, there was not a single law library in the entire city.⁴⁴ But perhaps a run-down courthouse and the absence of a law library were fitting for a bar that did not hold itself to particularly high standards.

This unpolished legal setting matched the rough character of Gandhi’s partner’s practice. There was no limit to the ways the resourceful Coakes devised to make money. He did criminal defense work; represented Indian merchants; appeared in bankruptcy matters; pursued collection actions; loaned money and sued when it wasn’t repaid; represented landlords wanting to eject nonpaying tenants, as well as tenants resisting payment; represented natives, Europeans, and Indians alike; engaged in commercial litigation; and, even before Gandhi was admitted, appeared in court to represent the rights of Indian voters. Coakes was not reluctant to demand his fees from his clients or to attack other lawyers trying to steal his clients. He gave no quarter. While his aggressiveness provided him a living, eventually it would land him in ethical trouble with the Law Society and the Supreme Court.

The quality of justice being dispensed in Durban was a paradoxical admixture of rank prejudice and British fairness. On the one hand, Indians were unsparingly mocked for their supposed mendacity as witnesses,⁴⁵ and Indians and natives were arrested far more often in relation to their proportion to the total population than Europeans. On the other hand, there are numerous reports of judges showing no favoritism to Europeans over Indian or native litigants. For example, shortly after Gandhi was admitted, a European supervisor at a sewage plant was accused of assaulting one of his charges, a native. Despite the European defendant’s denial of the charge and the support the defendant received from the testimony of a second European witness, the magistrate showed no hesitation in finding the defendant guilty.

BARRISTER GANDHI

While he was principally occupied with his political work in the weeks leading up to his admission to practice, Gandhi also performed a variety of mundane legal tasks for the Indian community—rendering advice to Abdulla, performing translation work, and drafting and reviewing documents for his merchant clients. Gandhi also took up Abdulla’s offer to purchase furniture and law books for him and to pay the fees associated with his admission. He read a little law, bought a suit for court, and looked at rooms and houses to rent, eventually settling on a handsome villa at Beach Grove.⁴⁶ Gandhi brought out the negotiating skills he had deployed against Coakes and reduced the monthly lease payments from an initial asking price of £8 to £6, 10s. In keeping with his elevated image of himself, Gandhi chose to pay this still rather steep price to ensconce himself in an area usually reserved for prestigious Europeans. Most notable among his neighbors was Attorney General Escombe. He saw to it that he would be able to support himself in this style by collecting his retainer fees from the Natal merchants who had pledged that they would underwrite his practice.

After his admission, he did routine office work for Coakes—interviewing a potential client here, drafting a document there—before making his first formal appearance in court. On September 14, 1894, the newly admitted barrister appeared in court to represent, not surprisingly, Dada Abdulla. If Coakes and Abdulla were worried about Gandhi’s ability to handle the case, it wasn’t apparent from the amount of money involved here—the then-handsome sum of £204. Indeed, Coakes may have given Gandhi a case with high stakes to test the young barrister’s range at the start so that he would know what work he could entrust to the new man. Dada Abdulla had sold goods and advanced cash to Gopee Maharaj, taking a promissory note in return. When the defendant defaulted on the note, Abdulla asked Coakes to bring an action against Maharaj.⁴⁷ He did so, with Mohandas K. Gandhi, barrister-at-law, then trying the case without a jury before Assistant Resident Magistrate James Francis Dillon of the Durban Court and bringing home a judgment, with costs, for his client in his very first trial.⁴⁸ Gandhi was so successful that the £263 judgment he secured was greater than the amount for which he sued. There must have been celebrations in the chambers of Coakes and Gandhi.

But they were soon enough tempered as neither October nor November was kind to Gandhi. In early October an Indian storekeeper on one of Durban’s busiest thoroughfares, West Street, had come to the new Indian advocate and asked Gandhi to represent him. It seems that when a native pulled out his leather purse to pay for some fruit, he dropped a 10 shilling piece in amongst the storekeeper’s produce. The costumer claimed that the storekeeper had not only refused to allow him to search for the coin but also threatened to “thrash” him if he did so. The native brought a charge of theft against the Indian, and the case came before the resident magistrate, Captain Gould Lucas, on October 3, in Durban Criminal Court. The native called as a witness his employer, who testified that she had paid the complainant his wages of 10 shillings the day before the incident, and also stated that during the complainant’s three years with her he had exhibited a good character. At best, this evidence offered only mild support for the Crown prosecutor. In turn, Gandhi put his client on the stand. The storekeeper claimed that he had actually allowed the complainant to search for the coin. He testified further that some bystanders also helped the complainant look for the coin. The magistrate was unimpressed and likely believed that the Indian was taking advantage of the situation to gain a windfall. In his first trial appearance in South Africa on behalf of a defendant in a criminal prosecution, Gandhi saw his client promptly convicted and fined £2.

In late October a native police officer came upon three women engaged in a brawl on Pine Street in Durban. The officer claimed that when he attempted to arrest the defendant, a young Indian woman, she hurled insulting and obscene language at him, resulting in a charge of “swearing at a constable.” After the officer’s testimony before Magistrate Dillon, Gandhi produced several witnesses who were one in saying that the girl was unable to speak English. The conclusion of the case was not a good one for Gandhi’s client. The magistrate gave the defendant her choice of a 5 shilling fine or five days in jail.

When Gandhi was studying law in England, he used a letter of introduction to gain an audience with Frederick Pincutt, the Conservative member of Parliament. Gandhi confessed to Pincutt his fear of the practice of law. Never, he believed, would he be able to replicate the skill of the famous Indian barrister Sir Pherozeshah Mehta, who “roared like a lion in the law courts.”⁴⁹ Pincutt, in an attempt to calm the young man, assured him that to earn success at the bar only “honesty and industry” were required.

Did Gandhi reflect on Pincutt’s advice at this early stage of his career as he sustained these defeats? Did he believe his criminal clients to be innocent? Was his storekeeper trying to take advantage of the native, or had it been the native who engaged in a scam? Did the young Indian woman actually not swear at the constable? Or was her denial of any knowledge of English an evasion of the real issue and a convenient way of seeming to be innocent? Did Gandhi feel comfortable or awkward with the high level of moral ambiguity in these cases?

As if these losses in criminal cases were not enough, in November Gandhi lost his next civil case, small as it was. He represented an Indian creditor against an Indian borrower in an effort to collect £5 in principal and interest. Gandhi lost, and to make the defeat all the more bitter, he lost to someone even less experienced than he, Eugene Renaud, the young Mauritian who had been admitted to practice less than two months before.

BALASUNDARAM TODAY, SCHEURMANN TOMORROW

It was at or near the end of this string of losses that a client appeared in Gandhi’s office with a matter so compelling as to decisively take Gandhi’s mind off his own troubles. Gandhi looked up from his desk to see a poor man, a native of the Tamil-speaking area of India, who clearly had been set upon. The man, whose name was Balasundaram, appeared with an injury to his face that was so severe he was unable to speak. Instead, shaking and crying just from the memory of the incident, he wrote down the account of his story on a piece of paper and handed it to Gandhi’s Tamil-speaking clerk. The clerk explained to Gandhi that the fellow was a servant indentured to a local European. The man had somehow provoked his master’s anger, and a brutal beating had followed. When Balasundaram limped off to the nearby home of the colony’s Protector of Immigrants, he was turned away. The Protector would only see him during his normal office hours. The Indian, however, was undeterred and took his complaint to the magistrate.

The magistrate was taken aback by what he saw. The Indian had been beaten so badly that his front teeth were protruding through his upper lip. The man’s turban, removed from his head and cradled in his hands, was drenched from the profuse flow of blood. The magistrate arranged for Balasundaram to go to the hospital, but kept custody of the turban as evidence. After several days of treatment, he was released—and went straightaway to the office of the new Indian barrister he had heard about.

Balasundaram’s request of Gandhi was that he end his indenture by prosecuting his master. Perhaps thinking that it would be quite difficult to mount a successful attack on a European master on behalf of a lowly Indian servant in a European court, and unfamiliar with the magistrate’s predisposition in cases of this sort, Gandhi instead suggested a more moderate course—that the indenture be transferred to another master. Perhaps on the advice of the more experienced Coakes, Gandhi wisely sent Balasundaram off to see a physician in order to further document the state of Balasundaram’s injuries.

When Balasundaram agreed to Gandhi’s proposal that they try for a transfer, Gandhi proposed the notion to the master, who was at first uncertain, but then agreed. His agreement was short-lived. After talking with his wife and hearing her argue that Balasundaram’s services were too valuable to surrender, the master proceeded to the Protector’s office to withdraw his agreement. With the transfer route foreclosed, the Protector arranged what he promoted as a compromise whereby the servant would withdraw his complaint and the master would take the servant back. Gandhi would later say that the news of the supposed compromise “sent a shock through my body,” for Gandhi sensed what would be in store for this servant who had challenged his master. Gandhi rushed out the door of his office to the Protector’s office, where the Protector placed before Gandhi Balasundaram’s written withdrawal of his complaint, conveniently attested to by the Protector himself. Stating the obvious for the purpose of discouraging Gandhi, the Protector took the position that had Balasundaram wanted any other result than to return to his master, he should not have signed the document.

Gandhi was not about to concede defeat. He had one other card to play. Gandhi threatened to take the matter before the magistrate. The Protector called Gandhi’s hand, saying that the written withdrawal of the complaint would make a trip to the magistrate fruitless.

Upon his return to this office, Gandhi moved on the litigation and negotiation fronts simultaneously. He instituted proceedings before the magistrate while also writing to the master with a renewed suggestion that the servant’s indenture be transferred. When the master persisted in his refusal, Gandhi pressed his case before the magistrate. After Gandhi submitted Balasundaram’s testimony, the direction of the court’s sympathies was clear. It was apparent that the magistrate, having seen the effects of the master’s savage treatment of his servant, would come down heavily on the master. Gandhi took this opportunity, however, not to prosecute his case to its successful conclusion, but to renew in open court his suggestion of a transfer.

The magistrate stepped in to help Gandhi. He indicated to the master that acceptance of the offer was a better result than the “serious consequences” to the master that would result from litigating the case to its conclusion. To drive the point home, the magistrate offered his opinion that Balasundaram had been brutalized. To the master’s response that Balasundaram had provoked him, he retorted, “You had no business to take the law in your own hands and beat the man as if he were a beast.” This said, he adjourned the matter to give the master time to think, a maneuver that had its intended result: the master shortly thereafter agreed to the settlement. But one matter remained to be disposed of—the Protector insisted that the new master be an acceptable European. For this assignment Gandhi recruited his friend Oswald Askew, at once an attorney and a Wesleyan minister, to take on Balasundaram “out of charity.” This done, the case was concluded.

Gandhi had recognized the rapids and falls, steered Balasundaram through them, and brought him to a safe landing. Neither theatrical speeches nor withering cross-examination brought him this success, but a right reading of the strength of his case and an insightful management of the system.

In his autobiography, Gandhi begins his account of the Balasundaram case by stating:

Service of the poor has been my heart’s desire, and it has always thrown me amongst the poor and enabled me to identify myself with them. . . . Balasundaram’s case reached the ears of every indentured labourer, and I came to be regarded as their friend. I hailed this connection with delight. A regular stream of indentured labourers began to pour into my office, and I got the best opportunity of learning their joys and sorrows.⁵⁰

Gandhi may have learned their joys and sorrows, and he may very well have quietly helped poor Indians in a manner not involving the legal process. Indeed, at a farewell party for Gandhi on the eve of his 1896 visit to India, Parsee Rustomji, an activist for the Congress cause, saluted Gandhi, saying that “words could not express the kindness shown by Mr. Gandhi to poor Indians.”⁵¹ If the public records left behind are any indication, however, Gandhi the barrister did not provide them many legal services. Rather, his practice was principally focused on serving the legal, economic, and political interests of Natal’s affluent Indian merchants.

Shortly after the Balasundaram case was successfully concluded, Gandhi experienced an easy win in civil court for the most prominent Indian merchant company. Max Scheurmann was the proprietor of the German Cafe, a combination restaurant and bakery located on premises leased to him by Gandhi’s client, Dada Abdulla and Company. Scheurmann was not much of a businessman, however. He fell behind in his rental payments to the company, which then commissioned Gandhi to pursue the German in court. Gandhi sued and recovered a judgment of just over £38, plus costs, against the hapless and undefended businessman, who made no attempt to fight the suit. Gandhi also succeeded in having the court order the almost immediate ejectment of Scheurmann from his business premises.

Scheurmann had been vanquished by the same lawyer who rescued the impoverished Balasundaram. It would be the straw that broke the businessman’s economic back. Ten days after his eviction and just a few days before Christmas, 1894, Scheurmann was in Durban Circuit Court, begging for bankruptcy protection for himself and his wife.