He was afraid of no one.
SEVEN
* * *
Waller’s Question
To see the universal and all-pervading Spirit of Truth face to face one must be able to love the meanest of creatures as oneself. And a man who aspires after that cannot afford to keep out of any field of life.
GANDHI
IN SEPTEMBER OF 1895, at a Natal Indian Congress meeting attended by upwards of one thousand people, Gandhi announced his intention to make a trip to India to promote the South African Indian cause and to bring back more Indian barristers to Natal to assist in the effort. It was also his desire, now that he “had established a fairly good practice,” to “go home, fetch [his] wife and children, and then return and settle out.”1
Gandhi could take his temporary leave from Natal in mid-1896 knowing his movement for Indian rights had recently achieved some limited satisfaction from the secretary of state for the colonies. Joseph Chamberlain had notified the Natal legislature that the British government was not pleased with the specific exclusion of Indians from the rolls that the Franchise Act had worked and that for this reason the act was not acceptable. Unfortunately for the Indian position, Chamberlain indicated that a more general exclusion might be acceptable. The legislature, accordingly, enacted a new bill that prohibited persons from voting if they hailed from “countries that have not hitherto possessed elective representative institutions founded on the parliamentary franchise.” This language would be used against would-be Indian voters. Gandhi opposed this provision to no avail; the British government eventually approved it. Gandhi, in an excess of optimism, cast the issue in wider terms that allowed him to see the new bill as a victory: “We have all along contended that it was not political power that we wanted, but that it was degradation which the first franchise Bill involved that we resented, and our protest has evidently been respected by Her Majesty’s Government.”2
With this issue behind him, Gandhi had the freedom to travel to India. Before he could go, however, this still-developing lawyer would first pass through an experience that would not only add several critical attributes to a growing portfolio of professional and personal characteristics, but also answer the question of whether his professional behavior would be consistent with his personal morality. Just a few weeks after the conclusion of the straightforward Roberts and Richards vagrancy case, Gandhi would be tested by the most complex, difficult, and public case of his young career. Of his time in Durban Gandhi would later write, “Practice as a lawyer was and remained for me a subordinate occupation.”3 There is reason to doubt this recollection as a general proposition, and there is very good reason to doubt it was the case in April of 1896.
WHO WRONGED WHOM?
Dada Abdulla and Company, one of Gandhi’s major clients, counted among its wide business interests a steamship line that carried both freight and passengers between Natal and India. The previous year the company was in the market for someone to captain one of its ships, the SS Courland, when it settled on James Matthew Adams. Adams accepted Dada Abdulla and Company’s offer of £16 per month and took charge of the ship on August 19, 1895.
Adams captained the ship from Bombay to Durban without incident or complaint from his employer. On the return trip a series of incidents occurred that caused the company to lose faith in Adams.4 When Adams anchored in Bombay, the company fired him. The captain believed he had been mistreated. On his return to Durban, Adams went to the law offices of Farman and Robinson, where he hired Ernest Farman to sue the company for £413, representing damages for wrongful discharge and reimbursement of sums spent in the operation of the ship. Gandhi, representing the corporate defendant, filed an answer as well as a counterclaim for £453.
The case went to trial in April and consumed parts or all of eight days stretching out over several weeks. During this time Gandhi had to deal with three very specific challenges: a difficult legal problem, ridicule heaped on him by his opponent and the public, and a hostile judge. His response to these challenges would help form both the man and the lawyer.
RUPEES AND POUNDS
It was the company’s central argument that Adams had attempted to cheat the company. The ship captain had submitted a bill in Bombay for the provisions he had purchased for the Courland, a bill calculated in Indian rupees. When the company attempted to pay the bill presented by Adams in Bombay, he inexplicably refused the company’s offer of payment. He then traveled back to Durban and submitted a higher bill there. This second bill was calculated in pounds at an exchange rate unfavorable to the company. The company refused to pay this second bill.5
From Gandhi’s perspective, the question of what the company owed Adams was the battleground issue in the case. In aid of his argument that the company was not obligated to pay the second, inflated bill, he desired to take evidence from witnesses who were outside Natal. To do this, he needed two things: time and the permission of a higher court.
At the conclusion of the plaintiff’s case-in-chief, Gandhi obtained an adjournment of the proceedings from Magistrate John Parker Waller so that he might apply to the Durban Circuit Court for leave to gather evidence outside the colony.6 Chief Justice Gallwey, sitting as the judge of the Durban Circuit Court, refused Gandhi’s application on the grounds that the Supreme Court had ruled that there was no authority for granting such applications and the circuit court was not about to contravene a ruling of the Supreme Court. When Gandhi pointed out that an identical order had been granted recently in another case by Justice Wragg, sitting as a circuit judge, “his Lordship enquired if the case was reported in the Law Reports, and on being told that it was not, observed that it was not worth reporting.” The press noted that this remark was followed by applause by those present in the courtroom. Adding to this humiliation, Gallwey ordered Gandhi to have his client pay the other side’s costs in the application hearing.
When the trial of Adams’ claim resumed before Magistrate Waller on April 15, Gandhi asked for another adjournment for the purpose of appealing Chief Justice Gallwey’s ruling to the entire Supreme Court bench.7 Waller was incensed. He told Gandhi that the company knew nothing about the shipping business and that its sole intent was to bring Adams, his wife, and his children to ruin.
An angry Waller then made Gandhi an offer: he would permit an adjournment only on the condition that the company pay Adams for the six months Waller expected Gandhi’s appeal would take. Gandhi, generally a skilled negotiator, began to accept Waller’s proposition, but not without his own condition: “We are willing to keep him with the proviso that if the judgment is given against him—”
Waller cut him off. “There must be no proviso.”
Waller’s dislike of the defendant then boiled over uncontrollably. He recalled the statements of the company’s representatives that it provided no more than a shilling a day per passenger for food and excoriated Gandhi’s client: “I would like to see . . . any respectable shipping agent in Durban go into that witness box and say anybody could feed first-class passengers at that small figure, when some £45 was charged for first-class passengers to England.”8
Gandhi begged to differ, explaining that the shilling was for food only and that the company incurred separate costs for fuel, stewards, and other expenses. This was Farman’s cue to join the court in mocking Gandhi’s client. He “would like to live on land for that sum,” said Farman, a sentiment with which Waller agreed.
Gandhi would not relent. Actually, he countered, it would be easy to keep a passenger fed for as little as 6 pence a day. Then Gandhi moved for an adjournment yet again. “Denied,” said Waller, undoubtedly exasperated with Gandhi’s persistence. “We will resume testimony on Saturday.” And with that Waller rose and left the bench.
WALLER’S QUESTION
When Saturday arrived, there was Gandhi—again asking for an adjournment. This time he came to court equipped with an affidavit “to show that it was impossible for the defendants to substantiate their defence or support their claim in r
econvention [their counterclaim] without the evidence of parties now out of the Colony.”9 Waller, not believing his own ears that Gandhi was applying once more for an adjournment, asked Gandhi rhetorically, “You want me to sit on my own decision?”10
When Gandhi explained how the evidence would provide a basis for a judgment for his client, the magistrate was, surprisingly, interested enough to make an inquiry. “By how much did the two accounts differ?”
“£204,” said Gandhi, explaining that Adams’ bill jumped by that much from the time he submitted it in Bombay to the time he submitted what should have been the same bill in Durban. “Why didn’t you settle the account in Bombay, then?” asked Waller. “Because Adams refused to do so,” replied Gandhi. Then, as Gandhi started to read the affidavit aloud to the court, Waller turned on Gandhi again, repeatedly interrupting him to make fun of the minor technical mistakes Gandhi had made in the affidavit. Gandhi was not able to finish reading it to the court, because Waller again interrupted to chastise Gandhi and his client for allowing the case to come to court in the first place. Then Waller confronted Gandhi with these words:
“Have you read your shipping law?”
The courtroom must have fallen perfectly silent as all heads turned to see how Gandhi would respond to this bold and accusatory question.
In fact, Gandhi had not read his shipping law, an uncharacteristic failure of preparation on his part. In the time between the question and Gandhi’s answer, what were the thoughts racing through Gandhi’s mind? “I could lie and attempt to bluff my way through the remainder of the trial or I could tell the truth and take the consequences.” Gandhi cast his lot with the truth.
“No.”
Waller jumped on this astounding admission. “If the defendants did not know shipping law they must pay for their experience, and not try to make the plaintiff pay for it.”11
Faced with yet another expression of the magistrate’s judgment on the merits, Gandhi finally attempted to cut his losses by offering to withdraw his counterclaim. Farman said that he was prepared to accept Gandhi’s offer, but on the condition that judgment be entered on it for the plaintiff. Gandhi knew, however, that this meant that Farman would be awarded his costs on the counterclaim. Costs could be substantial. He withdrew his offer and proceeded with his case, calling several witnesses—two to testify as to the relative cost of provisions in Durban and India, a company clerk who reported on his observations of Adams’ misdeeds,12 and then the captain himself.
To call an opposing party during one’s own case-in-chief is a risky maneuver, though somewhat less so for the defendant than for the plaintiff. In either event, however, great care must be taken to keep the witness under control, for otherwise the witness will divert the court’s attention away from the damaging points the questioning attorney wishes to pursue and instead to affirmative evidence for the witness’ own case. Recall that Gandhi had been blocked by Waller from obtaining evidence outside the colony that would help prove the discrepancy in the two victualing statements Adams had tendered. Finding himself with the need to prove his case in part through Adams, Gandhi wisely confined his examination of Adams to the “accounts he rendered in Bombay and in [Durban] as to the victualing of the S.S. Courland.”13 Because he could stick to numbers and avoid evaluative or normative concepts, Gandhi’s decision to examine the captain in the midst of his own case demonstrated what may have been Gandhi’s understanding of both the dangers and limits of calling one’s opponent as one’s own witness.
Having survived Adams’ testimony, Gandhi called a representative of his own client, Abdulla Karim, a partner of Dada Abdulla and Company and the president of the Congress in 1896. Abdulla Karim testified, putting in “a voluminous quantity of accounts with regard to victualing.”14 During his testimony, Gandhi also wanted to put into evidence a letter the defendant had written to its office in Bombay. Farman objected to this piece of hearsay. The colloquy that followed showed a struggle between the two lawyers for the last word—and for control of the courtroom.
Farman, after objecting, complained about all the time Gandhi was taking to put in his proof. The letter was yet another of Gandhi’s delays. Speaking of what he expected to be the court’s denial of Gandhi’s motion to admit the letter, Farman insisted, “I will have nothing else.”
Gandhi retorted: “I know you have all you want, and now you try to shut me up.”
Farman replied: “That’s what I’m here for.”
Those in the courtroom were amused and laughed aloud with Farman as he made light of Gandhi, Gandhi’s case, and the trial process. There is no evidence that Waller called for order in the room. The magistrate then surprised no one by ruling the letter inadmissible.
Gandhi persisted in arguing with the judge after the ruling was made, a maneuver guaranteed to irritate even the most patient of judges, in whose ranks Waller could not be counted.
“Without going into the facts your worship refuses to admit it!”
The steely response from the bench: “Yes; are you ready to go on?”
Gandhi then started shuffling through the pile of documents he had brought to the courtroom that day. After what must have seemed an interminable delay, Waller offered a gratuitous comment in Gandhi’s direction: “You have got too many papers.” This brought about an apparently facetious suggestion by Farman that the court stand in adjournment until Gandhi was ready to resume his questioning.
That afternoon, when Gandhi had tendered all his available evidence in response to Farman’s case, he asked for yet one more adjournment. On this occasion he explained that he had telegraphed Delagoa Bay for certain documents—a butcher’s receipt and a check—and that it would take two or three days to receive them. Farman once again objected, and the magistrate once again upheld the objection and denied Gandhi’s application.
On this note, Gandhi rested his case.
A QUESTION OF TRUST
Farman then called two witnesses in rebuttal, after which he rested his case. This was Gandhi’s signal to pop up again with another request for an adjournment, this time to provide himself with the opportunity to read the court’s notes before giving his closing argument. Waller was flabbergasted at the audacity of this request, denied it without any prompting from Farman, and advised the lawyers to appear the next morning for closing arguments. Gandhi then asked Waller if he could at least review the documents that had been admitted in evidence. With no objection from Farman, Waller said that if Gandhi wanted to read the documents before court resumed in the morning he could do so.
When court resumed at 11 o’clock on the morning of Thursday, April 23, 1896, Farman was on his feet for the plaintiff. Farman’s theme was that this was not a case about money. It was a case about dignity. “There [are] items on the record of the court of charges against the plaintiff, which, if proved, would make him strictly unfit to hold the position of master mariner. There was not the slightest foundation for the suggestions of fraud, dishonesty, and misconduct which would justify the charges against the plaintiff being placed on the record of the court. . . . The question the court would be called upon to decide would be—Were the defendants justified in dismissing the plaintiff in Bombay?”
After further attacks on the company, some of which were racist, and an hour-and-a-half after he had begun, Farman concluded by expressing the hope that the “the decision of the court would be so favorable to the plaintiff that he would have no cause to regret the fierce examination to which his character had been subjected, or the vague and wicked suggestions which had been thrown out against him.”15
Now it was Gandhi’s turn to address Waller. The conventional wisdom is that one should always begin a closing argument on a strong, affirmative note. Gandhi, however, began on a defensive one. In fact, he began by attacking not Adams, but the judicial system. How could he present his best case when the courts had prevented him from obtaining the testimony he needed? Gandhi then briefly addressed Farman’s case before reviewing for the court the groun
ds on which the company had relied to dismiss Adams.16
Finally, Gandhi got to the heart of his argument. He laid out Adams’ expenses in Bombay, which Adams incurred in Indian rupees. He then described the exchange rate, rupees as against the British currency then in circulation in Natal. Gandhi explained Adams’ ploy. He incurred his expenses in rupees in India at one exchange rate, but then wanted to be reimbursed in Durban in pounds at a different and substantially higher rate. This the company refused to do. The difference, argued Gandhi, came to over £200.
How could the company keep on an employee, such as this, in whom it had no trust?
After Gandhi had addressed a number of other issues, the magistrate launched another attack on him and his client. He pointed out that after charging Adams £78 for the passage of his family back to Durban, the company had the audacity to also charge them an additional fee for their meals.
Farman, wishing to point out that the company expected Adams to bill in rupees while the company itself chose to bill Adams in pounds, pushed the dagger in a bit further: “And the charge is made in English currency.” Gandhi explained that the company gave its passengers a choice: they could provide their own food or the company could provide it for them at an agreed-upon price. He was silent on the issue of the double-standard. The magistrate was still incredulous: “After you make £78 profit from these people, you charge them for food?”
Waller shook his head. “I am taking this case under advisement,” he told the parties.
Gandhi sat down.
There was nothing to do but wait.
A PARTIAL WIN
Before the trial came to an end, Gandhi showed his lack of appreciation for the task before Waller when he asked the magistrate whether he would be deciding the case from the bench at the trial’s conclusion. When the decision was rendered by Waller on May 15, 1896, his opinion ran to thirty-two pages.
M.K. Gandhi, Attorney at Law Page 14