M. K. Gandhi, Attorney at Law: The Man before the Mahatma

“K.C.” stood for King’s Counsel, a distinction bestowed on a select portion of the bar.

“[Ward] had a thorough knowledge of English case law, which he had thoroughly read and digested.” Manfred Nathan, Not Heaven Itself: An Autobiography (Durban: Knox, 1944), page 218 -219, quoted in Ellison Kahn, Law, Life and Laughter: Legal Anecdotes and Portraits (Cape Town: Juta and Company, 1991) at page 335.

Gandhi had attempted to retain J.W. Leonard to represent the Indians before the Supreme Court. Leonard, a highly-regarded barrister, had previously represented the Indian cause on multiple occasions. At the time Gandhi approached him, however, he was occupied with other important work and unavailable. Ward, Gandhi’s second choice, was described by Gandhi as a “very able barrister, though not of the same calibre as Mr. Leonard.” “Johannesburg Letter”, June 14, 1908, CWMG 8, p.297 (December, 1962 edition).

The affidavits were from Ebrahim Ismail Aswat, Essop Mia, and Gandhi himself. “Johannesburg Letter”, June 14, 1908, CWMG 8, p. 297 (December, 1962 edition).

“Letter to General Smuts”, June 13, 1908, CWMG 8, p 290 (December, 1962 edition).

“Extract From Letter to S.A.B.I. Committee”, June 22, 1908, CWMG 8, p. 308 (December, 1962).

“Letter to the Press”, June 22, 1908, CWMG 8, p. 306 (December, 1962 edition).

“Asiatic Question”, June 22, 1908, The Johannesburg Star.

“Petition to Transvaal Supreme Court”, June 23, 1908, CWMG 8, p. 311 (December, 1962 edition).

“Johannesburg Letter”, June 23, 1908, CWMG 8, p. 316 (December, 1962 edition).

It is likely that Gandhi, rather than Ward, wrote this unclear petition “after consulting Barrister Ward.” “Petition to Transvaal Supreme Court”, June 23, 1908, CWMG 8, p. 311 (December, 1962 Edition), fn. 2.

The petition summarizes the compromise agreement the Indians thought they had reached with Smuts. It states that Aswat and most other Indians complied with the agreement by voluntarily registering. It also states that because the Government would not repeal the Act, Aswat “does not wish to accept a certificate of voluntary registration....” The petition indicates that Aswat had asked for his application and supporting papers back and that his request was refused. It points out that Aswat did not apply for registration under the Act but “of his own free will.” And finally, it asks that the court order Chamney to return the application.

Two affidavits, also likely drafted by Gandhi, were filed in support of the petition – one from Essop Mia and one from Gandhi himself. (“Affidavit”, June 23, 1908, CWMG 8, p. 314 (December, 1962 edition).) The purpose of Mia’s affidavit appears to be to call attention to the physical injury he suffered (along with Gandhi) when he attempted to voluntarily register in May. Thus, Mia’s affidavit added nothing to the substantive argument; it was principally an emotional appeal. Gandhi’s affidavit makes his legal theory somewhat clearer. It reviews the negotiations with Smuts and states that Smuts “definitely” promised to repeal the Act. Gandhi attached to his affidavit the correspondence he had with Smuts, “confirming” in Gandhi’s view “the question of repeal.” Gandhi’s affidavit appears to be designed to provide proof of the registration-for-repeal agreement.

The Government, for its part, submitted affidavits in which the Colonial Secretary and the Registrar of Asiatics denied there was any agreement to repeal the Act. (“Asiatic Question”, June 26, 1908, The Johannesburg Star.) The Government appears from these submissions to accept Gandhi’s hazy legal framework for the case.

July 2

The matter first came before Justice Smith on the morning of June 26, 1908, with A.D. Home arguing for the Indians and Lichtenstein instructing him. Home stated that he wanted more time to respond to the affidavits of Smuts and Chamney. DeWaal, for the Government, opposed him on this. The Court granted Home’s request and set July 2 as the date for argument in the case.

Solomon had interrupted Ward to ask hime whether Aswat had a property interest in the documents. This was a new slant on the case that neither the Indians nor the Government had addressed in their submissions to the Court.

In response, Ward likened the application first to a photo provided to the government on a temporary basis and then to an ancient art object for sale, “with a document containing its history; if the sale [of the art object] did not go through, surely he was entitled to reclaim the document.” Ward’s reply also went to Aswat’s intent: he had no intent to transfer ownership of the documents to the Government in the absence of the Government’s compliance with the agreement. Hence, in light of the Government breach of the agreement, they remained Aswat’s.

was the Government’s

Solomon reasoned that the application was like “a letter written by one person to another.” When one sends a letter, one relinquishes ownership over it and ownership passes to the recipient. When Aswat submitted his application to the Government, it was not with the intent that he should reclaim it later. Like a letter that is sent, the application became the property of the recipient. Aswat v. Registrar of Asiatics, 1908 Transvaal Supreme Court Reports 568 (July 2, 1908).

The Court did agree that Aswat was entitled to the return of his Peace Preservation Ordinance papers and his Law 3 of 1885 papers that he had submitted along with his application. Aswat v. Registrar of Asiatics, 1908 Transvaal Supreme Court Reports 568 (July 2, 1908). The possession of these papers, however, was not seriously in dispute and of little concern to either party to the case.

“Letter from Mr. Gandhi”, July 3, 1908, Rand Daily Mail. Interestingly, Gandhi downplayed the significance of the Court’s decision even before it was rendered. “Johannesburg Letter”, before July 2, 1908, CWMG 8, p. 329. For his part, Smuts crowed: “The Asiatics took the matter to the [Supreme] Court, and Sir William Solomon took the view that the interpretation of the agreement was entirely different from the construction which the Asiatics placed upon it.”

“Gen Smuts’ Speech in Legislative Assembly”, August 21, 1908, CWMG 8, p. 507.

Chapter Seventeen

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I can….Gandhi

“Speech at Meeting of British Indian Association”, February 2, 1908, CWMG 8, at p. 55 (December, 1962 edition).

“Mr. Smuts at Richmond”, February 6, 1908, The Johannesburg Star.

“...[W]e had made a law that could only be carried out with the assistance of the coolie, and the coolie would not assist us.” “Mr. Smuts at Blaauwbank”, February 11, 1908, The Johannesburg Star.

March, 1930

Thomas Weber, On the Salt March: The Historiography of Gandhi's March to Dandi (New Delhi: Rupa, 2009); Judith M. Brown, Gandhi and Civil Disobedience: The Mahatma in Indian Politics, 1928-1934 (Cambridge: Cambridge University Press, 1977).

The Gandhi-led 1913 South African workers’ strike and march provide other, but somewhat less clear, examples. See Maureen Swan, Gandhi: The South African Experience (Johannesburg: Ravan Press, 1985), pp. 245 - 256.

in this Colony think

“Letter to the Editor”, December 31, 1907, The Johannesburg Star.

“Meeting of Chinese: Mr. Gandhi’s Exhortation”, December 31, 1907, The Johannesburg Star.

Within just a few weeks of his loss in the Supreme Court, Gandhi repeats the theme when he tells an audience:

He had no doubt that the Colonists themselves, when they saw that the British Indians would suffer…would ask General Smuts to stay his hand and keep his promises, and to repeal the Act on the conditions he had agreed upon. “Speech at Mass Meeting”, August 10, 1908, CWMG 8, p. 436 (December, 1962 edition).

“Letter to J.J. Doke”, July 25, 1908, CWMG 8, page 399 (December, 1962 edition).

“When I talk of equality of treatment in the eye of the law the idea is jeered at.....To my mind, it is the only thing that binds the Empire together.” “Interview to the Star”, September 9, 1908, CWMG 9, p. 30 (April, 1963 edition).

“Johannesburg Letter:, July 7, 1908, CWMG 8, p. 347.

“Johannesburg Letter”, before July 2, 1908, CWMG 8, p. 329.

“Johannesburg Letter”, before July 2, 1908, CWMG 8, p. 329.

“The Asiatics: Mr. Gandhi on the Position – Determined to Hold Out”, July 24, 1908, The Transvaal Leader.

“Asiatic Question”, June 22, 1908, The Johannesburg Star.

“The Asiatic Question”, July 17, 1908, The Johannesburg Star; “Mr. Gandhi Again Explains”, August 13, 1908, The Johannesburg Star. Gandhi and the Indians also wanted the Government to honor the right to return of Indians who had formerly lawfully lived in the Transvaal.

“The Asiatics: Text of the New Bill”, August 13, 1908, The Transvaal Leader.

They argued that because the bill failed to repeal the Act that it should be rejected by Parliament. “The Asiatic Problem”, August 14, 1908, The Johannesburg Star.

“Letter to General Smuts”, August 14, 1908, CWMG 8, p. 451 (December, 1962 edition).

In addition to the 1,300 certificates that the leadership had in hand, 200 additional certificates were surrendered during the event. “The Asiatic Question: Prominent Indians Charged”, August 18, 1908, The Transvaal Leader.

Sounding Gandhian themes, Essop Mia proclaimed that the intent of the Indians was not to defy the Government but simply to suffer for the Indian cause. In the aftermath of the Supreme Court decision, he believed that there was but one thing left to do: “divest ourselves of the certificates we have been misled into taking.” Mia’s conclusion stirred the crowd into loud applause, as he declared that the Indians’ cause was one of life or death.

“Speech at Mass Meeting”, August 16, 1908, CWMG 8, p, 456 (December, 1962 edition). The paragraphing here has been slightly changed from the original for clarity.

This moving section of Gandhi’s talk was followed by a blistering ad hominem attack on Montford Chamney, the Registrar of Asiatics, whom Gandhi called hopelessly incompetent and ignorant. Chamney had been present for the Gandhi-Smuts conversation in which Gandhi claimed Smuts promised to repeal the Act. Chamney then spoke with Gandhi and personally confirmed this promise to him – before filing his affidavit in the Supreme Court case denying the existence of that very promise. Gandhi ended his talk by accusing Chamney of lying and by predicting that there would be no peace in the Colony while Chamney was in office. The crowd applauded again.

The Rand Daily Mail, in reporting on the rally, stated that Gandhi “seemed to be suffering from mental stress....” “Gaol Before Indignity: Asiatics Burn Certificates”, August 17, 1908, The Rand Daily Mail.

“The Asiatics: Burning of the Certificates”, August 17, 1908, The Transvaal Leader; “Defiance of Defense”, August 17, 1908, The Johannesburg Star; “The Asiatic Position”, August 17, 1908, The Johannesburg Star; “Gaol Before Indignity: Asiatics Burn Certificates”, August 17, 1908, The Rand Daily Mail.

“Letter to the Press”, June 22, 1908, CWMG 8, p. 306 (December, 1962 edition).

“We contend that the Immigrants Restriction Law, as it stands, does not debar educated Indians from entering the country....” “Educated Indians”, August 14, 1908, The Transvaal Leader.

“Extract from Letter to S.A.B.I. Committee”, June 22, 1908, CWMG 8, p. 308 (December, 1962 edition).

Immigrants’ Restriction Act, Act No. 15 of 1907, Appendix I, p. 487, CWMG 8 (December, 1962 edition).

“The Indian Case”, July 9, 1908, The Johannesburg Star.

“Letter of July 6, 1908 from Essop Mia to Colonial Secretary", July 8, 1908, The Johannesburg Star.

“Johannesburg Letter”, June 24, 1908, CWMG 8, page 318 (December, 1962 edition).

“Trial of Sorabji Shapurji - I”, July 8, 1908, CWMG 8, p. 345 (December, 1962 edition).

“Johannesburg Letter”, June 24, 1908, CWMG 8, page 318 (December, 1962 edition).

“Johannesburg Letter”, June 24, 1908, CWMG 8, page 318 (December, 1962 edition).

“The Asiatic Cases: An Educated Indian Without a Permit”, July 8, 1908, The Johannesburg Star.

“The Asiatic Cases: An Educated Indian Without a Permit”, July 8, 1908, The Johannesburg Star.

It was often true in the Transvaal courts in 1908 that there was very little time between arrest and trial.

“The Asiatic Cases: An Educated Indian Without a Permit”, July 8, 1908, The Johannesburg Star; “Rand Police Courts: Asiatic Test Case – Mr. Gandhi’s Puzzles”, July 9, 1908, The Rand Daily Mail; “Law and Police: Law and Asiatics – The Registration Problem – Test Case from Charlestown”, July 9, 1908, The Transvaal Leader; “Trial of Sorabji Shapurji-I”, July 8, 1908, CWMG 8, page 345 (December, 1962 edition).

“Law and Police: Law and Asiatics – The Registration Problem – Test Case From Charlestown”, July 9, 1908, The Johannesburg Star.

“Asiatic Registration Case: Mr. Gandhi’s Objection Upheld”, July 10, 1908, The Transvaal Leader.

“Letter to A. Cartwright”, July 9, 1908, CWMG 8, page 352 (December, 1962 edition).

Gandhi’s first move that day was to argue that the case should be dismissed because the defendant had previously been acquitted of the charge. (Gandhi had pled autre fois acquit. Under American law, this plea would be comparable to a defense of double jeopardy – an argument that a person cannot be tried twice for the same alleged crime.) The Magistrate responded to Gandhi’s assertion of this defense by pointing out that the offense was a continuous one, thus permitting the re-arrest. Gandhi was prepared for this response. He argued that under the Act a person was allowed eight days to register after entering the country. Not only had the eight days not passed, but the defendant had been re-arrested just moments after his discharge; had he a desire to register, he was permitted no time to do so. This appeared to be a strong argument, but the Magistrate overruled the plea without explaining his decision.

Gandhi moved for another discharge of the defendant on grounds similar to those he cited in Sorabji’s first trial. Gandhi argued that the Government was obligated to tender to the court the notices from the Government Gazette that indicated that “persons found within the Colony after a certain date would be called upon to produce registration certificates.” Gandhi pointed out that the Government had only submitted the Gazette notices of the expiration of the registration period. Gandhi then unknowingly made a serious mistake by producing and reading the additional Gazette notices he argued the prosecution was obligated to enter into evidence. He had simply wanted to call these notices to the attention of the court, but his actions permitted the prosecution to argue that Gandhi had done its work for it. Gandhi replied that he had not put the Gazette notices into evidence and that he had just read from the Gazette as he would from a law book.

Gandhi was clearly correct about this point, but the Magistrate again ruled against him and again failed to explain his ruling.
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within seven days

“Law and Police: Parsee and Permit – Shapurjee Again Charged – Ordered to Leave This Time”, July 11 1908, The Transvaal Leader; “Rand Police Courts: Ordered to Leave – Indian Immigration Case – Government Defied”, July 11, 1908, The Rand Daily Mail; “Trial of Sorabji Shapurji - II”, July 10, 1908, CWMG 8, page 357 (December, 1962 edition).

In an editorial in The Transvaal Leader, its editors wrote that either the Government “failed in its duty in knowingly allowing a prohibited immigrant to enter unmolested, or that the Government had not much faith in its own interpretation of its own Immigrants’ Restriction Act. Under which thimble is the pea?” “A Dilemma”, July 18, 1908, The Transvaal Leader.

In a letter to the editor of The Rand Daily Mail, Gandhi argued that the fact that Sorabji was being prosecuted under the Act was proof that “educated Asiatics were free to enter under the Immigration Restriction Act.” “A Test Case”, July 6, 1908, The Rand Daily Mail. See also, “The Sorabji Case” (letter to the editor from Gandhi’s colleague, H.S. L. Polak), July 15, 1908, The Johannesburg Star; “The Asiatic Question” (letter to the editor from the chairman of the British Indian Association, Essop Mia), July 17, 1908, The Johannesburg Star.

“The Asiatics”, September 16, 1908, The Transvaal Leader; “Asiatics”, December 3, 1908, The Transvaal Leader; “Letter to Private Secretary to Lord Crewe”, October 22, 1909, CWMG 9, p. 493 (April, 1963 edition).

“Johannesburg Letter”, July 18, 1908, CWMG 8, page 367 (December, 1962 edition); “Johannesburg Letter”, July 21, 1908, CWMG 8, page 387 (December, 1962 edition); “Sorabji Shapurji of Adajan”, July 25, 1908, CWMG 8, page 398 (December, 1962 edition).

Sorabji went on to train for the bar in England and returned to South Africa to practice in Johannesburg. Shortly afterward he contracted an illness (tuberculosis perhaps) and died. M.K. Gandhi, Satyagraha in South Africa, p. 212 - 3 (Stanford: Academic Reprints, 1954).

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returned to the authorities

“The Asiatics: Collision with the Police – Hard Labour Sentence Resented”, July 21, 1908, The Transvaal Leader.

“Johannesburg Letter”, September 26, 1908, CWMG 9, p. 63 (April, 1963 edition).

“Speech in Johannesburg”, July 20, 1908, CWMG 8, page 378 (December, 1962 edition).

This front actually opened five days before Gandhi’s speech, when Essop Mia, chair of the British Indian Association, wrote to the press that he and other members of the leadership would temporarily abandon their normal work and take up hawking – without licences. “The Asiatic Question” (Letter to the Editor from Essop Mia, Chair, British Indian Association), July 17, 1908, The Johannesburg Star.

“Asiatic Question: The Position of the Hawkers”, July 21, 1908, The Johannesburg Star.

By August 15, 1908, approximately 100 Indians had gone to jail. “The Asiatics”, August 15, 1908, The Transvaal Leader. Some of these individuals were established figures who had been not only the core of Gandhi’s political support but often his clients as well. “The Indian Revolt: Prominent Men Arrested”, July 21, 1908, The Johannesburg Star. As Maureen Swan explains, however, many others were petty hawkers to whom Gandhi turned for support when merchant dedication to the cause declined. Maureen Swan, Gandhi: The South African Experience (Johannesburg: Ravan Press, 1985) at page 167.

“Trial of Ebrahim Ismail and Suliman Bagas”, CWMG 8, July 20, 1908, at page 379 (December, 1962 edition); “Trial of Ismail Akooje and Others”, CWMG 8, July 21, 1908, at page 382 (December, 1962 edition);“Yesterday’s Prosecutions”, August 12, 1908, The Transvaal Leader; “Pretoria Licences: Claim of ‘Ultra Vires’ ”, September 16, 1908, Rand Daily Mail.

“Germiston: Asiatic Ordinance – Hawkers in Trouble”, August 8, 1908, The Transvaal Leader; “Prosecuting Hawkers”, August 14, 1908, The Transvaal Leader; “Further Prosecutions”, July 28, 1908, The Johannesburg Star; “Stubborn Asiatics”, July 31, 1908, The Rand Daily Mail.

The one guilty plea that can be explained occurred in Rex v. Mariji, which will be discussed below.

Some differences in whether the courts gave hard labor sentences existed (see, “The Asiatics: Government and the Hawkers”, July 31, 1908, The Transvaal Leader), but these differences are explained by geography. Johannesburg judges “invariably” imposed hard labor while judges in the outlying areas were more apt to be forgiving.

Gandhi was not ignorant of the debate-advancing function of civil disobedience. He would later write that “...the self-suffering which the community has undergone, and which has been expressed by the term “passive resistance” has been undertaken after the methods of petitioning, etc., had been exhausted and in order to draw public attention to a grievance that was keenly felt and resented by the community.” “Indian Passive Resisters”, August 6, 1910, The Rand Daily Mail.

“Smuts v. Gandhi: The Fight Over the Act – Prominent Indians Sentenced – Hawking as a Protest – Fourteen Exemptions”, July 22, 1908, The Johannesburg Star; “Trial of Bawazeer, Naidoo and Others”, July 22, 1908, CWMG 8, page 385 (December, 1962 edition); “Asiatic Passive Resisters”, July 23, 1908, The Rand Daily Mail; “Law and Police: Asiatics Sentenced –Leaders in the Dock – A New Feature”, July 23, 1908, The Transvaal Leader.

“Hawkers Go to Gaol: Mr. Gandhi and Exemptions”, July 28, 1908, The Transvaal Leader; “Hawkers Fined”, July 28, 1908, The Rand Daily Mail.