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 innoce
nt? 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.
SIX
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Formation Lessons
The Indians are to be considered a necessary evil at present; we cannot do without them as labourers; we cannot do without them as storekeepers.<
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RICHARD ALEXANDER, Superintendent of Police
IN 1894 GANDHI TRIED HIS first criminal cases in South Africa. We have no record of his having reflected on the moral questions that work raised. He also performed compassionate work for Balasundaram and uncompassionate work against Scheurmann. We have no record of his having reflected on the contrast. One might conclude, however, that Gandhi, with his strong conscience, turned these matters over in his mind.
What Gandhi likely did not appreciate—almost no young lawyer does—is that the experiences a lawyer undergoes in the first few years of practice help form, in a disproportionately influential way, the character of the lawyer’s entire future practice. The lawyer’s first experiences at the bar help answer two overarching questions. What types of clients will the lawyer represent against what types of opponents? And will the lawyer’s professional behavior comport with the lawyer’s personal morality?
As 1895, Gandhi’s first full year of practice in Durban, opened, these two pivotal questions—as well as several secondary questions—faced this twenty-six-year-old lawyer. His career and his legal persona, then both very much in formation, would be shaped by his answers to these questions as he faced a remarkably challenging array of opponents and experiences for a beginning practitioner.
M.K. Gandhi, Attorney at Law Page 11