When the question of the lawfulness of the seizure came before the court, things did not go well for the government. Mr. Justice Jorissen was offended that the detectives had not only seized books belonging to Abdulla, but also records belonging to the court. Jorissen accused the state of a failure of good judgment, saying that the arbitration was a serious proceeding that had been unnecessarily and violently interrupted. He opined that rather than causing a raucous and costly interruption of the arbitration, the state could simply have petitioned the court for an order compelling Abdulla to turn the materials over to the state. Jorissen ordered all the materials returned; he charged Baker and Livingstone to keep custody of them.
As for the charges against Baker, the Transvaal High Court, in a unanimous decision, threw them out, citing Baker’s status as an attorney and “a well-known and respectable citizen” and finding the detectives’ “vulgar, cruel and mean” behavior to be without justification.15
None of these collateral events could distract from the attention received by the case that gave rise to them. After approximately three weeks of arbitration hearings, Livingstone announced his decision. He found the purchase price to be £37,000, prompting The Press of Pretoria to proclaim it “one of the most expensive arbitration cases that has been heard in South Africa for some years.”16 This was the amount owed by Mohamed and Company before subtraction of the sum, not made public, that it had already paid Abdulla and Company. On the 20th day of May 1894 the arbitrator’s award was made a rule of the High Court of Justice.
REFLECTIONS
Gandhi was a prolific writer. The Collected Works of Mahatma Gandhi stretches out over one hundred volumes. He wrote numerous sketches of his life, later bound together as a lengthy autobiography, My Experiments with Truth. And yet from what must have been a rich storehouse of memories of his nearly twenty-year career at the bar, Gandhi chooses to relate his experiences in only a small handful of cases. One of those was the Abdulla case.
In reflecting on the case, Gandhi first draws a lesson about the relationship between truth and the practice of law. He claims that while he did earnestly pursue his interest in religion during his year in Pretoria, his primary concern was with the case—and its facts. He eventually came to know the facts, he claims, better than the parties themselves. He recalls the advice later given him by one older head that “facts are three-fourths of the law” and the observation of another “that if we take care of the facts of a case, the law will take care of itself”—propositions with which most practitioners might agree. Gandhi offers his own formulation when he states, “Facts mean truth, and once we adhere to truth, the law comes to our aid naturally.”17
From his study of the Abdulla facts, Gandhi concluded that Abdulla’s was a very strong case and that “the law was bound to be on his side.” But Gandhi saw more than this:
I also saw that the litigation, if it were persisted in, would ruin the plaintiff and the defendant. . . . No one knew how long the case might go on. Should it be allowed to continue to be fought out in court, it might go on indefinitely and to no advantage of either party. Both, therefore, desired an immediate termination of the case, if possible.
I approached Tyeb Sheth and requested and advised him to go to arbitration. I recommended him to see his counsel. I suggested to him that if an arbitrator commanding the confidence of both parties could be appointed, the case would be quickly finished. The lawyers’ fees were so rapidly mounting up that they were enough to devour all the resources of the clients, big merchants as they were. The case occupied so much of their attention that they had no time left for work. In the meantime mutual ill-will was steadily increasing. I became disgusted with the profession. As lawyers the counsel on both sides were bound to rake up points of law in support of their own clients. . . . This was more than I could bear. I felt that it was my duty to befriend both parties and bring them together. I strained every nerve to bring about a compromise. At last Tyeb Sheth agreed. An arbitrator was appointed, the case was argued before him, and Dada Abdulla won.
But that did not satisfy me. If my client were to seek immediate execution on the award, it would be impossible for Tyeb Sheth to meet the whole of the awarded amount, and there was an unwritten law among the Porbandar Memans living in South Africa that death should be preferred to bankruptcy. It was impossible for Tyeb Sheth to pay down the whole sum of about £37,000 and costs.18 He meant to pay not a pie less than the amount, and he did not want to be declared bankrupt. There was only one way. Dada Abdulla should allow him to pay in moderate instalments. He was equal to the occasion, and granted Tyeb Sheth instalments spread over a very long period. . . . [B]oth were happy with the result, and both rose in the public estimation.
Gandhi then expresses his own feelings at this result:
My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby—not even money, certainly not my soul.19
One must entertain a certain amount of skepticism about the accuracy of Gandhi’s recollection of how arbitration came about. On the one hand, it stretches credulity to think that an unlicensed twenty-four-year-old bag carrier for the sophisticated and experienced lawyers in the case could single-handedly convince two major Indian businessmen to go to arbitration. On the other hand, Gandhi might have been able to gain the confidence of the parties because he was their countryman, and an educated one at that. Moreover, it makes sense that if Mohamed compromised on arbitration, Gandhi would be able to make a persuasive case to Abdulla that, with respect to the installments question, it was his turn to compromise.
MORE LESSONS
What did Gandhi draw from the Baker incident? We do not know whether he was physically present during the arrest. Surely he knew of it, however, inasmuch as it was the talk of the town. Baker displayed extraordinary courage in defiance of overreaching power when he resisted the efforts of the officers to seize his files. Baker apparently felt no shame on the occasion of this or any of his other arrests. Gandhi himself would later defy many an authority and freely court arrest. Gandhi learned something other than law from Baker.
What more did Gandhi learn from his involvement in the case of Abdulla v. Mohamed? He had been given a rare view into the privileged life and the benefits it brought. Even from his lower-level perch as a nonpracticing lawyer who served in a capacity more befitting a paralegal than a barrister, Gandhi could see the enormous amounts of money at play in the South African business and legal community. Abdulla’s commercial empire stretched from Bombay to Durban to Pretoria and beyond. Other Indians were profiting from the trade that became available with the growth of the Indian community in South Africa. And if there were wealthy business owners, would prospering lawyers not be far behind? Wouldn’t there be a special place for an Indian lawyer? And couldn’t such a lawyer charge handsomely for his services? There were large amounts of money to be made, far, far more than Gandhi ever made in his failed attempts at establishing a practice in his home country.
It was no wonder, then, that the European bar in Durban eyed this prospective competitor with suspicion.
ONE MONTH MORE
Toward the end of May 1894 Gandhi packed his bags and headed for Durban, whence, it is said, he intended to sail back to India. On his arrival there, he learned that the same Dada Abdulla who had thought of him as a white elephant a year earlier now planned a farewell party for him. If we were to trust Gandhi’s recollection of this event in the autobiography he wrote years later, we would be led to believe that at this occasion Gandhi, while scanning a newspaper, learned for the first time that the right of Indians to vote was coming under attack in the Natal Parliament. Gandhi recalls that his merchan
t hosts were unaware of this threat until he called it to their attention. The merchants, now apprised of the danger to them, asked Gandhi to stay and lead the fight against this franchise legislation on their behalf.
There is good reason to believe, as Maureen Swan has demonstrated, that this account is highly romanticized.20 By the time of Abdulla’s farewell party, the merchants had been resisting the attacks of the white power establishment on their interests for some time and were thus quite likely to be already keenly aware of any attack on the franchise. Dada Abdulla himself had served on the Durban Indian Committee, meeting with that group to discuss “important . . . political and other subjects.”21
What does not appear in dispute is the deal Gandhi struck with the merchants. He agreed to stay, but on the condition that he not be paid for his work, arguing that no one should take a salary to work in the cause for Indian rights. If the merchants would provide him, however, with start-up funds to pay for telegrams, literature, law books, travel, and legal fees for local lawyers and also agree to make available a corps of volunteers, he would stay on for an additional month, an amount of time he naïvely judged sufficient to beat back the attack on the Indian franchise. The agreement was made and Gandhi’s services were secured for a month.
Gandhi’s month of service stretched on—for twenty years. Not until 1914 would he finally leave South Africa and the cause he had now embraced.
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.
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