Gandhi’s response took the form of lengthy interviews with the Star and the Leader. In the Star interview, he rebutted Smuts’ charge that there had been a surreptitious influx of thousands of illegal Indians, attacked the fingerprint requirement, called the Act degrading class legislation, called for a judicial inquiry into the question, denied that there had been any intimidation of those attempting to register, and denied that he and the Indian leadership had misled their community. In his interview with the Leader, he defined “passive resistance” as a “protest against . . . degradation and an offence to feeling,” expressed an openness to compromise, announced that the Act “can never be accepted by the Indian community, more so as the community is bound by a solemn declaration,” and suggested specific legislative actions that would resolve the crisis.42
The next day Gandhi gave an interview to Reuters in which he made a very specific compromise offer. If the Act would be suspended, Gandhi would see to it that “every Indian in the country would be registered in one month’s time,” after which the Act could be repealed. Gandhi emphasized that what the Indians objected to was compulsion.43
During the same week that he was giving these interviews he also wrote two entries for Indian Opinion. The first and quite lengthy entry is especially notable, for in it he announced his adoption of the term satyagraha as a replacement for “passive resistance.” He also took the occasion to praise Sonja Schlesin, his young legal secretary who doubled as a pro-Indian activist.44 The second and shorter entry was dramatically entitled “Last Message to South African Indians.” In it Gandhi pleaded with his countrymen “to remain undaunted . . . and be ever mindful of their pledge and keep up their courage.” He appealed to Indians outside the Transvaal to send not just their congratulations but their money. And, finally, he appealed to all Indians for Hindu-Muslim unity. Given its title, Gandhi must have expected this to be his last salvo in the press. It was not to be. He had been notified to appear for his arrest in court at 10 A.M. on the 10th of January. He was surprised that day by a visit from Vernon, however, who informed him that his hearing had been postponed until 2 P.M. that day. As was his way, Gandhi jumped into the gap and made it productive. He headed for the Newtown mosque, where a large crowd assembled on short notice to hear him speak one final time before his inevitable incarceration. Gandhi warned his audience that should they bow to the law, they would “lead a dog’s life.” The community had to continue its resistance after Gandhi was jailed and show the colonists that “they were men.” He remained optimistic about the outcome of the resistance. Gandhi
had not the slightest doubt that General Smuts had sufficient humanity in him to recognize the sincerity of purpose, the real feeling that underlay the community. . . .
He thought the whole of the community would rise and tell General Smuts, if the Colony was convinced they were sincere, willing to suffer for their cause and their country, religion and honour, then the Colonists would tell General Smuts he had not received a mandate to expel these people from the country.45
The Johannesburg Star reported that Gandhi “was listened to with the greatest intentness. Every eye was fixed upon the slim central figure of Mr. Gandhi, and the meeting gave an indication of the hold he has upon his countrymen.”46
A GENTLE RAIN
After the meeting, Gandhi retreated to his office, while a huge crowd of Indians assembled on Government Square in anticipation of the afternoon’s proceedings. A quiet, gentle rain fell. At exactly 2 P.M., Gandhi and other members of the leadership made their way onto the square. The crowd may have been there to see Gandhi, but he may not have taken much notice at first. Gandhi, never the one to lose a moment’s productivity, had his head buried in the first edition of that afternoon’s Star as he slowly walked toward court. He had just received word of sentences handed down to his colleagues in Pretoria for their resistance to the Act. Perhaps he was searching this early edition of the Star for details that would be relevant in his own hearing.47 As he did so, he may not have even noticed it was raining, for his supporters had erected a canopy of umbrellas to protect him from the weather. Eventually, however, he had to take cognizance of the assembly and his environment as he and the others were surrounded by well-wishers, many of whom were anxious to shake hands with the defendants.
When the police opened the courthouse doors to the public, the crush of people on the entrance was so great that chaos erupted. The police had to close the entrance on two separate occasions, push back the crowd into the square, arrest some overly enthusiastic people, and set up a line of mounted and regular police before any kind of order in processing would-be spectators could be established. As these events were occurring, the names of the six defendants were called, and the six worked their way through the crowd and into the courthouse.
When they arrived in the courtroom, not only was the public seating section filled, but people were also occupying every bit of the available standing room as well. The magistrate entered and a court official commanded silence. The silence was pierced by the calling of the first case—Rex v. Gandhi.
Gandhi stood before the magistrate, his fellow members of the bar, and hundreds of fellow Indians, some of whom he had undoubtedly represented in the very courthouse in which he was now a defendant. Gandhi raised no defense on his behalf. He immediately and without commentary pled guilty to disobeying the court’s order to leave the Transvaal.
To make his record, Schuurman, the public prosecutor, called Fred Klette, the court clerk, to the stand. Klette produced the records from Gandhi’s December 28 appearance and testified that he personally served the order on Gandhi to remove himself from the colony. Gandhi had no questions for Klette.
Schuurman then called Vernon, who testified that he had seen the defendant in the Transvaal on a number of occasions since the 28th and that he had arrested him earlier that afternoon for defying the court’s order. Again, Gandhi had no questions of the witness.
Schuurman rested his case.
Gandhi rose and asked for permission to make a statement. Jordan had prohibited Gandhi from making a statement when Gandhi had pled guilty on the 28th to the charge of not having registered. In a similar vein, he had attempted to discipline Gandhi for comments the court deemed extraneous at the soldiers’ trial just the previous week. Now there was Gandhi in front of him again, asking for permission to make a statement. Perhaps sensing the gravity of the moment, Jordan relented.
Gandhi had a most unusual request. He had learned that the resisters in Pretoria had been given sentences of three months’ hard labor, plus fines—and if they refused to pay their fines, they had been told, they would be sentenced to an additional three months at hard labor. If these Indians had committed an offense, Gandhi’s was greater. The court, therefore, should impose on him the maximum sentence possible. Jordan was incredulous:
MR. JORDAN:You ask for the heaviest penalty which the law authorizes?
MR. GANDHI:Yes, sir.
MR. JORDAN:I must say I do not feel inclined to accede to your request of passing the heaviest sentence, which is six months’ hard labour with a fine of £500. That appears to me to be totally out of proportion to the offence. . . . This is more or less a political offence, and if it had not been for the defiance set to the law I should have thought it my duty to pass the lowest sentence which I am authorized by the Act. Under the circumstances, I think a fair sentence to meet the case would be two months’ imprisonment without hard labour.48
Practically every Indian in Johannesburg was in the crowd outside the courthouse awaiting word of Gandhi’s fate and that of the other defendants. When the news of Magistrate Jordan’s decision arrived, an ocean of small black flags appeared as if on command. Spontaneous chanting broke out. Following a very large single black flag hoisted aloft on a long pole, the crowd surged out of the square in a procession that would take it onto the street where Gandhi’s office was located and then in the direction of the mosque.
Gandhi, meanwhile, was taken off t
o a special holding room to await his jailers.
As he sat there, quite alone, Gandhi’s mind turned to venues with which he had become so familiar and so comfortable—his home, the law courts where he practiced, the square where he addressed a large public meeting just a short time ago.
Now these were all being taken from him.
The thought shook him.
For the first time in his life, he was going to prison.
SIXTEEN
* * *
Malpractice
I do plead guilty. . . . I had too great faith in the statesmanship of General Smuts, in his honesty, and in his integrity.
GANDHI
AS GANDHI ENTERED THE JOHANNESBURG jail, he did not know that another troublesome South African lawyer—this one named Nelson Mandela—would follow his footsteps into that same jail some fifty-four years later. Nor did he know that a free South Africa would someday honor their presence there by choosing the site of the jail for its new Constitutional Court.
What Gandhi did know on January 10, 1908, is that he had to make his peace with imprisonment. He quickly set about regaining his composure, and, indeed, he vigorously embraced his jail experience, declaring himself “content to be in jail” and saying that he actually enjoyed it. Gandhi took advantage of the opportunity to read and reread a wide variety of materials—among them the Bible; the Koran; Carlyle’s writings on Robert Burns, Samuel Johnson, and Sir Walter Scott; works by Tolstoy, Ruskin, and Plato; as well as Bacon’s essays on civil and moral counsel. Jail provided this overworked, overextended man with a degree of respite. It was good for him.1
His incarceration, however, was not good for the movement. Rather than inspiring his fellow resisters, it deflated them. Gandhi himself reported that his followers began to lose courage not long after his jailing. Those who earlier had shown the mettle necessary to go to jail with him “lost their nerve in a few days, and some hinted that they would not go to jail again.” Gandhi’s reaction was clear. “All these things,” he wrote shortly afterward, “could not just be ignored by a person who had been deeply involved in the struggle for 16 months.”2 With fervor for the cause rapidly weakening and under pressure to strike a quick settlement with the government, Gandhi felt compelled to act. In doing so, he committed an egregious but, in the end, a productive error. It would cause the Indian movement in South Africa first to seek help from the courts and then, out of frustration, to enter into a major campaign of civil disobedience.
WORDS MATTER
When Albert Cartwright, the sympathetic editor of the Transvaal Leader and one whom Gandhi considered a friend, visited Gandhi in prison on January 21 with a suggestion on how the dispute could be resolved, Gandhi was ready to listen. He and Cartwright agreed that the settlement should be an exchange of concessions: voluntary registration on the part of the Indians in exchange for repeal of the Act by the government. Cartwright visited Gandhi again on January 28 with a draft of a letter from the resisters to the government.3 Gandhi believed the letter was inadequate on two points: it failed to indicate that voluntary registrants should be free from the application of the Act, and it failed to address the position of Transvaal Indians then outside the colony’s boundaries. Gandhi made changes to the letter that he thought addressed these concerns and signed it.4 Thambi Naidoo and Leung Quinn, two of the Indian and Chinese leaders in the resistance movement, also signed.
This letter was a key part of the negotiations that would result in a settlement freeing Gandhi and his fellow prisoners from jail at the end of January. Gandhi believed that, starting with this letter, he was piecing together an agreement with Smuts that would embrace the two features he and Cartwright had agreed were vital—repeal of the Act and voluntary registration. A major disagreement between Gandhi and Smuts, however, would erupt over the settlement. Gandhi would claim that Smuts breached the agreement when he later refused to repeal the Act, while Smuts would deny that repeal was ever part of the settlement. The fact is that Gandhi’s January 28 letter focuses on the suspension of the operation of the Act—not its repeal. It is possible that what Gandhi meant was that the Act would be suspended during voluntary registration and then repealed once voluntary registration was complete. But that is not what the letter said.5
With the ink from Gandhi’s signature barely dry, Cartwright left that same day for Pretoria to present the letter to Smuts. Later that afternoon, Cartwright called Gandhi with the news that Smuts had “accepted the letter.”6
By the time history brought Smuts and Gandhi together in 1908, they had each undergone a good number of parallel experiences—with a few wrinkles of difference. Both were nearly the same age—born less than a year apart. Both had been bold enough to venture overseas to study the law at the Inns of Court. Gandhi succeeded at the Inner Temple by dint of discipline and great effort; Smuts won prizes for his brilliant work while studying at the Middle Temple. Both were serious students of philosophy and religion, with Gandhi studying these subjects in the quiet of his room and his jail cell, and Smuts writing about Christ at Cambridge and reading philosophy in Germany. Each had worked in journalism: Smuts had written for the Cape Times and Gandhi was then writing for Indian Opinion. Gandhi led his people in a nonviolent resistance movement; Smuts became a military leader in the Anglo-Boer War. Both practiced law in the Transvaal. Both men eventually gave up their practices to lead their communities.
Each was a man of deep conviction. Just as Gandhi was determined to overcome white opposition to the assertion of Indian rights, Smuts was determined to maintain the monopoly of political, social, and economic control that whites had over the Transvaal.7 The failure of the January 28 letter to clearly lay out the terms of the settlement would cause these two strong-headed figures to collide in a test of wills and strategies.
A MIRAGE OF VICTORY
When Smuts saw that the letter brought to him by Cartwright did not explicitly make repeal a condition of the settlement, he must have been pleased. He had been schooled in this question just two months earlier by Lord Selborne, high commissioner for South Africa and governor of the Transvaal. Selborne, in a private letter, had urged Smuts not to make such a concession:
The Asiatics, through . . . Mr. Gandhi, demand . . . repeal of the . . . Act. This . . . ought never to be permitted by Parliament. The Asiatic is a very bad person from whom to run away, and I do not think that any such repeal would be consistent with the self-respect of the Government or the Parliament. But, if the Asiatics are, at the last, prepared to be reasonable, then I would make the way easy for them. The one simple object of the Government is to get them registered so that the Government may control future immigration. I would advise the Government to accept any proposals which the Asiatics may make which really would effect this object, even should it require a supplementary Act on this subject. . . . But the movement must come from the Asiatics to the Government, and it must come in a form which the Asiatics cannot afterwards repudiate. It must be on paper and vouched for by men who undoubtedly represent the Asiatics.8
From Smuts’ point of view, everything was lining up to meet Selborne’s prerequisites. The initiative for settlement came from the Asiatics, the contact was in writing, and Gandhi, Naidoo, and Quinn undoubtedly represented their communities. At noon on January 30, Smuts welcomed Gandhi to a meeting between the two in Pretoria. In reporting on this meeting in Indian Opinion a few days later, Gandhi states that Smuts accepted the “demands” contained within the letter.9 Gandhi makes no mention of Smuts having specifically promised to repeal the Act.10 In the wake of the meeting, a letter from the acting assistant colonial secretary was handed Gandhi, reflecting the deliberations of Smuts and his cabinet following the meeting. The letter conformed to Selborne’s prescription not to repeal the Act but rather to offer some supplementary action by Parliament.11
On the same day he met with Smuts, Gandhi had a conversation with Registrar of Asiatics Montfort Chamney—a person for whom Gandhi had almost no respect—which caused him some d
iscomfort about what the parties actually agreed to in the terms of the settlement. As a result, he asked Smuts’ secretary for leave to see Smuts again. When he was refused, he put his thoughts into the form of a letter, informing Smuts that Chamney had “harped away on the Asiatic Act” and that Gandhi “gathered that the registration that will now proceed will be legalized under that Act.” Gandhi went on to say, “At the interview with you, I did not understand any such thing at all.”12
In Indian Opinion, Gandhi conceded that the letters between himself and Smuts “do not say categorically that the new law would be repealed.” He defended the ambiguity this way: “The letters have been so drafted as not to shock the whites.”13 A few months later he made the seemingly baseless argument that repeal was implied in the letters.14
Gandhi did succeed in seeing Smuts again on February 3. Gandhi later claimed that several points were agreed upon in this discussion, including the repeal of the Act on the condition that the Indian community register voluntarily.15 In what would prove to be a highly controversial provision of the settlement, all Indians were to provide their fingerprints during voluntary registration, with the exception of those who were well educated or who owned property.
Thinking this meeting had cleared up any lingering questions about the terms of the settlement, Gandhi declared the success of the Indians’ campaign complete.16
M.K. Gandhi, Attorney at Law Page 30