He shows that while Europeans objected to free Indians taking up residence in Natal after completing their indentures, they were intent on having indentured servants. Gandhi then writes, “The most fatal objection, however, against those Bills is that they are intended to check an evil which does not exist.” There is no follow-up argument to, or even explanation of, this statement.15 Rather, he parades before the secretary the prospects of future legislation, not yet introduced into the Natal legislature, that would restrict Indians to “locations” (certain geographically separate areas to which Indians would be confined by law for purposes of residence or trade); further restrict the issuance of trade licenses; and bar property ownership by Indians.
Finally, in the last substantive paragraph, Gandhi makes a plea for some vague relief, asking the secretary to issue a statement on “the status of the Indian British subjects.” In the alternative, he asks for a confirmation of an earlier statement from Ripon that the British government desired that Indians be treated equally.16
Gandhi’s endless recounting of the factual details of the Courland-Naderi incident undoubtedly tried the patience of a busy Colonial Office. Moreover, this extended history obscured the arguments Gandhi made at the document’s tail. Most damaging, Gandhi did not even mention his strongest argument—that the Indian community would work to cut off the importation of indentured servants if the government permitted the proposed legislation to go into effect. In short, this petition lacked the crispness, forcefulness, and organizational clarity of his earlier petitioning against the Franchise Act. While it reflected an enormous effort, it was not Gandhi’s finest work as an advocate.
Gandhi apparently did not see it that way, thinking the petition worthy of wide distribution. He circulated it in London with a cover letter that was more persuasive than the copy of the petition accompanying it. The letter was short, well organized, and compelling. Gandhi also sent it to key figures in India and a confederate in London, urging the recipients to act. “Now is the time,” Gandhi wrote in uncharacteristically apocalyptic terms, “or it will be never.”17
Less than two weeks after writing the Chamberlain petition, Gandhi peppered both chambers of the Natal Parliament with petitions. The petition to the Legislative Council was a short, polite, even deferential argument against the Uncovenanted Indians Act. The petition to the Assembly contains the strongest single argument Gandhi makes in any of his petitions against the 1897 legislation. In protesting against the provision of the DLA that forbade an appeal of the licensing officer’s decision to a court, Gandhi writes:
To deny a subject the right to appeal . . . against . . . decisions . . . guided and carried away by popular feelings or prejudice would be deemed to be an arbitrary measure in any part of the civilized world; in the British Dominions, an insult to . . . the Constitution which is rightly termed the purest in the world. Nothing . . . can be more disastrous to the stability of British rule . . . than anything that takes away the right of the subject to ventilate his grievance . . . before the highest tribunals of justice in the British Dominions, which have, under the severest trials, vindicated their fame for absolute impartiality.18
The balance of the petition lacks the elegance and sensibility of this argument. It suggests that the Assembly defer action on the bills until it could first investigate whether the Indian was an aid or hindrance to the colony. Anyone who thought that the legislature would do such a thing had a greater faith in reason than the prejudices of the time justified. In Gandhi’s defense, he may have filed these petitions with the Natalians in part to later make the point to Chamberlain that he had given the colonials the chance to mend their ways before he approached London for relief from their actions.
That might also be the explanation for Gandhi’s lengthy April 13, 1898, letter to the Natal Mercury. It argued that Europeans should not fear the Indian. In it Gandhi displayed a technique familiar to thoughtful lawyers—he took his weaknesses and turned them into strengths. European businesspeople regularly complained that they could not compete with Indians, whose supposed low standard of living resulted in abnormally low costs and prices. Gandhi’s response was to argue that it was a benefit to Europeans for Indians to live and sell cheaply because, in doing so, Indians were able to offer retail prices affordable to Europeans of limited means. In response to the claim that if Indian retailers did not exist, European ones would take their places, Gandhi argued that it was the Indian retailer who made the world bright for European wholesalers, wholesaling being “a stage higher” than retailing.
With respect to complaints that Indians lived and worked in unsanitary conditions, Gandhi’s argument showed both the lawyer and the saint at work. If Indians were unsanitary, that problem could be solved by strictly enforcing the sanitation and licensing laws. The Europeans would be prepared to do this, Gandhi claimed, only if the “European Colonists, as Christians, look upon [Indians] as brethren or, as British subjects, look upon them as fellow-subjects.” Then Gandhi advised the Europeans that “instead of cursing and swearing at the Indians as now, they [should] help them to remove any defects that there may be in them, and thus raise them and themselves also in the estimation of the world.”19
THE END OF PETITIONING?
It was not surprising that Gandhi’s petitioning and letter writing failed to convince the Natal Parliament. All four bills were passed and their texts promulgated in the Government Gazette on May 5 and June 1, 1897. Gandhi immediately wrote to the Natal colonial secretary, advising him that he would be sending a petition to Chamberlain and requesting that the secretary not transmit the bills to London for approval until the Indians had an opportunity to complete the preparation of their petition. But Gandhi was too late; the bills had already been sent. Gandhi, normally extremely attentive to details, had not prepared the new Chamberlain petition in time. Surely this could not have been for lack of notice, for it was clear from the start that the bills would pass. Gandhi was reduced to requesting that Chamberlain defer consideration of the bills until the Indians could state their case again.
Chamberlain waited and Gandhi wrote. What Gandhi wrote, however, was an ordinary, tired, and unimaginative piece of work. He restated almost verbatim arguments he had made before, he filled the document with long passages from the press supporting his point of view, and he made virtually nothing of his strongest argument, that the DLA, bereft as it was of standards, deprived British subjects of elemental due process. In the one strong paragraph that he wrote, couched unfortunately in his odd specificity argument, he did draw the secretary’s attention to the Queen’s Proclamation of 1858, guaranteeing equality for all her subjects:
If Her Majesty’s Government decide that, in spite of the Proclamation of 1858, a . . . Colony can legislate to the prejudice of British Indians . . . and, if they are satisfied that the number of Indians in Natal is increasing at an alarming rate, and that the presence of the Indians is an evil to the Colony, it would be far more satisfactory that a Bill specially applicable to the Indians would be introduced.20
Finally, he took the Indians’ single point of leverage—the suspension of the importation of indentured servants—and mentioned it only in passing at the close of the petition.
As had been his practice with previous petitions, Gandhi sent copies of this one to pro-Indian leaders in Britain and to leading nationalist figures in India. His cover letter is remarkable for the desperation it shows:
Unless there is a powerful public opinion against the disabilities that are being heaped upon the Indians in Natal our days are numbered. Natal beats both Republics [the Boer-controlled Transvaal and Orange Free State] in its studied persecution of the Indians, and it is Natal that can least do without Indians. She must have them under indenture. She won’t have them as free men. Would not the Home and the Indian Governments stop this unfair arrangement and stop indentured emigration to Natal? We have but to request you to redouble your efforts on our behalf and we may yet hope to get justice!21
Per
haps Gandhi’s approach to the writing of the second Chamberlain petition was shaped by his understanding that there was little likelihood the secretary would disallow the acts on the basis of yet another Indian petition. Perhaps Gandhi understood petitioning itself was not the tool he once thought it was. When London turned a deaf ear to the Indians’ plea and refused to exercise its disallowance power with respect to the four anti-Indian acts, perhaps Gandhi understood it was time for something different—litigation.
THE START OF SOMETHING NEW: THE CASE OF THE DUNDEE INDIANS
To this point, Gandhi’s practice of law had been fairly apolitical. His work was that of a business lawyer. He helped his commercial clients transfer property, collect debts, and sue on back rent. Those few cases with political overtones—Balasundaram’s case comes to mind—were exceptions, not the rule. In 1897, however, a convergence between Gandhi’s professional and political work began to develop that would signal the start of a slow but radical change in the nature of his practice.
It is not clear, however, that litigation was a strategy intentionally chosen by Gandhi and the Natal Indian Congress (the merchants’ political arm of which Gandhi was the moving force) or whether the strategy chose them. After his defeat by the legislature and following his last plea to Indian and European figures that they urge London to disallow the anti-Indian bills, Gandhi seemed to lose focus. There is almost no evidence of political activity by Gandhi from early July to late September 1897. In mid-September, however, he was called upon to intervene in a case that had been developing in Dundee.
Seventy-five Indians trying to enter Natal from the Transvaal had been arrested at Dundee for violating the IRA. They were promptly jailed. Two local European attorneys, Hugh Anderson and Albert Smith, pled with the Dundee immigration officer for their release, arguing that the men were Natalian citizens. While a few were released on this basis, the great majority of them were held for the local magistrate. He refused to grant the lawyers’ request for bail. When after two days of hearings the lawyers renewed their request, the magistrate simply renewed his ruling. The day after the hearing ended, Anderson and Smith once more applied for bail and the magistrate once more denied the request. When Gandhi arrived in Dundee to take up the Indians’ cause, he joined in the request for bail, and this time it “was immediately granted by the Magistrate with permission to approach the Immigration Officer.”22 Gandhi apparently had come from Durban armed with records indicating the innocence of at least some of the prisoners, permitting him to convince the magistrate.23 Preparation was sometimes Gandhi’s strong suit. The immigration officer, however, still would not budge, so Gandhi returned to the magistrate. According to the Natal Mercury, “The same objections were raised by Mr. Gandhi as were raised by the attorneys, but this time the Magistrate decided to liberate the whole of the men. The legal circle here is much annoyed at the course adopted in refusing two attorneys what they allowed to the third (Mr. Gandhi).”24
This was a rare circumstance for Gandhi—succeeding in court where European lawyers had failed. But it was more than that. It was preeminently a heady, though temporary, victory of the law over racism. Might the courts be used to defend against, and even attack, anti-Indian legislation?
THE DEALERS’ LICENSES ACT
The IRA proved to be ineffective and highly unpopular. As some had predicted, the result of the legislation was to keep out far more Europeans and far fewer Indians than its proponents had hoped. The Uncovenanted Indians Act created a nuisance with which the Indians were resigned to live for the moment. The Quarantine Act would become an issue only when the danger of plague arose. The DLA, however, was another matter altogether. It was quickly, repeatedly, and ruthlessly implemented to put existing Indian businesses out of commission and to prevent new ones from beginning. Its vesting of virtually unchecked discretion in licensing officers and its bar on appeals to the courts made decisions that were nakedly race-based, easy to render, and easy to defend. A license denial did not have to be specifically authorized in the law. A license could be denied on sanitary grounds or because the applicant could not keep books in English. These bases were specifically mentioned in the law. But the law did not restrict denials to these grounds alone. A licensing officer could deny a permit for any reason he chose.
Nor did the act require the licensing officer to justify his decision with reasons. The act required neither the licensing officer nor the town council to provide reasons. A denial could be based on any reason or on no reason.
It did not take a keen eye to spot the arbitrariness the act permitted. By late 1897, town councils were getting their first taste of appeals from the decisions of licensing officers. On October 27, the Durban Town Council entertained several appeals from decisions of the officer denying businesspeople licenses to operate. In an appeal by one applicant, the mayor stated that the licensing officer need not present reasons for his denial of the application. After some discussion of the unfairness of not providing reasons, the officer stated that the applicant had earlier failed in his attempt to obtain a restaurant license and the officer considered this a back-door attempt to obtain such a license. The council disagreed and unanimously granted the license. The applicant was European.
The second applicant was Chinese. One council member, Daniel Taylor, stated that “it was time that they put a little check on these undesirables. . . . [I]t would be a disgrace to the community if they gave a . . . licence to this man, or any other man of the same nationality. In Australia . . . Chinese had proved to be parasites, and sucked the lifeblood out of the European population.”25 Another member of council, however, would benefit financially from the grant of a license; he was to be the applicant’s landlord. The majority of the council approved the license.
The final applicant was Indian, applying on behalf of a partnership. The licensing officer claimed that the person who appeared before the town council was not the same partner who had applied for the license, prompting one council member to remark that it was impossible to follow “these people” through their partnership relationships. The council upheld the license denial.
None of these decisions, reported in a paper that Gandhi scrutinized daily, was made on a principled basis or had a firm basis in reason. But each found support in a DLA that handed over to town councils unchecked discretion and near-total freedom from accountability.
Gandhi would also look on as the Durban licensing officer issued more denials of Indian applications as well as denials to applicants who were Chinese and Jewish.
DEFENDING MOOSA
Soon enough Gandhi found himself with a licensing case. Moosa Hajee Adam operated a small fruit and vegetable stand in a passage that connected West Street to Durban’s Indian mosque. The stand was not a fixture, but removable. Moosa would set out his produce on his wooden stand during the day, transfer it indoors at day’s end, and throw a canvass over the stall for the night. The city’s licensing officer, W. H. Dyer, spotted Moosa operating this business, found he had no dealer’s license, and cited him for violating the DLA.
When Moosa appeared before Resident Magistrate Saunders on December 9, 1897, Gandhi was at Moosa’s side equipped with a clever argument for his client’s innocence. Gandhi claimed that the DLA did not displace Ordinance 3 of 1850, from which the city’s right to require licenses under the DLA flowed. Natal legislation of this era was notoriously poorly written,26 and in this case Gandhi was determined to take advantage of the Parliament’s failure to coordinate the DLA with the ordinance.27 While it was true that the DLA was written to apply to “retail dealers,” Gandhi argued, Ordinance 3 permitted the city to require licenses only of those who operated retail “shops.” Moosa’s stand, on which he set up and dismantled his business every day, had no permanence to it, concluded Gandhi. It failed to qualify as a “shop.” Strengthening this argument, Gandhi reminded the court that “all laws passed in restraint of trade and liberty of the subject had to be strictly interpreted against the prosecution, and very liberal
ly in favour of the defendant.”28
Magistrate Saunders was not convinced. He found Moosa guilty and, accepting Gandhi’s representation that this was a test case, levied a nominal fine of 5 shillings.
Moosa appealed to the Supreme Court. Gandhi rarely appeared before the Court on his own. Perhaps he was still too timid. Perhaps he was sensitive to the criticism that the arguments of a political figure such as himself would not be given their full weight by the court. In this instance, Gandhi brought in forty-eight-year-old Kenneth Hathorn to argue the case for the Indian side. The English-born Hathorn had been in practice since 1871 and was an experienced Supreme Court advocate. He would later go on to serve in the Parliament and on the Natal bench.
Hathorn echoed Gandhi’s argument: “In this case the licence in question is described in Ordinance 3, of 1850, as a ‘licence to keep a retail shop,’ and the entire question at issue is ‘does the appellant keep a retail shop?’ . . . The only way in which he could be required to have a licence was if he kept a retail shop, under Ordinance 3, of 1850.”29
Hathorn’s opponent, R. F. Morcom, saddled with defending an indefensible position, satisfied himself with arguing that there was a distinction between the “question whether he can take out a licence” and the question of “whether he can carry on a business without a licence.”30 The Court, consisting of Chief Justice Gallwey and Justices Wragg and Finnemore, rejected the city’s argument, unanimously ruled for Moosa, and set aside the magistrate’s judgment.
M.K. Gandhi, Attorney at Law Page 17