M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

  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 pee
red 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 t
hat 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