requirements if the applicant had already been admitted as a barrister in England. Perhaps the bar’s opposition to Gandhi was heightened by resentment that this “colored” lawyer was not only applying for admission but doing so by virtue of an exemption surely not drafted with anyone other than whites in mind.
A member of the Durban bar with the unforgettable name of Gustave Aristide de Roquefeuil Labistour was appointed to represent the Law Society in the matter of Gandhi’s application for admission. At age thirty-eight already a leading member of the Natal Law Society, Labistour would later rise to the office of attorney general and be elevated to the rank of King’s Counsel. Labistour was initially suspicious of Gandhi because of Gandhi’s failure to tender, in support of his application, the original of his certificate of admission to the Inner Temple in London. Gandhi was unable to produce this document because he had given it to the Indian authorities when he enrolled to practice before the Bombay High Court prior to his ill-fated attempt to establish a practice in India in 1891–1892. It was another issue, however, which occupied Labistour’s attention when he met with the young applicant in Labistour’s office on August 20. The Natal attorney peered through his spectacles at the one who would be Natal’s first Indian barrister and demanded that he produce certificates showing the good character of his family, as well as a statement from Albert Baker as to Gandhi’s fitness to practice law. Labistour also expressed his dissatisfaction with the two certificates of character Gandhi had obtained from Natal merchants of European descent, claiming that they knew nothing of his character. Labistour advised Gandhi that he needed to produce evidence of his good character from people who knew him, like Dada Abdulla, rather than European merchants who had only a recent knowledge of Gandhi. Gandhi noted that he had made Abdulla’s acquaintance only in Natal, to which Labistour responded that since they hailed from the same region of India, the Gandhi and Abdulla families should at least have some knowledge of each other. Labistour then promised Gandhi that should Gandhi produce an affidavit from Abdulla, Labistour, who himself had done some legal work for Abdulla, would withdraw as counsel for the Law Society, his objections having been satisfied. Deeply disturbed by Labistour’s demands, Gandhi noted to himself that had he produced Indian affidavits, the bar would have demanded European affidavits. He bit his tongue, however, and produced the required affidavit from Abdulla and, for good measure, additional affidavits from Moosa Hajee Adam and Haji Dada, as well. Labistour, true to his word, withdrew and was replaced by the attorney and advocate Edward Mackenzie Greene, one of the more senior members of the Natal bar. Labistour would later prove to be a genuine friend of the Indian cause.
In keeping with the tradition whereby the attorney general, as the leading lawyer in the bar, represented applicants for admission,26 the long-bearded, severe-looking, and intellectual Harry Escombe rose before the Natal Supreme Court on Monday, September 3, 1894 to move Gandhi’s admission.27 Escombe recounted Gandhi’s call to the bar in England and his subsequent admission to the Bombay High Court of Judicature. Anticipating the Law Society’s argument, Escombe explained that Gandhi had tendered the original of his Inner Temple admission certificate to the High Court of Judicature when he was admitted to practice before that court as an advocate. Greene, in opposition, argued that Gandhi had not fulfilled the requirements for admission, because he had not tendered the original of the certificate, producing instead an informal “copy of the certificate . . . being merely signed by one J. H. Farrell.”28 Greene argued that this copy was insufficient. In a maneuver that spoke volumes, Greene cited previous cases in which two European applicants, Stephenson and Beatson, had been denied admission because they failed to “produce certificates that they were still on the roll.” Greene added that “the practice had been for barristers and solicitors to produce their certificates, and not simply sign an affidavit that they had been so admitted.” Greene thus anticipated an attack that the society’s position was motivated by Gandhi’s color. His argument would seem to mischaracterize Gandhi’s application inasmuch as the signed copy of his Inner Temple certificate that Gandhi produced was significantly more substantial than a self-serving affidavit. Nonetheless, Justice Walter Wragg, first puisne judge, stated that he thought Greene’s objection was proper, noting that he, Wragg, had produced his own Inner Temple certificate when asked to do so. The General Rules for Admission of Advocates or Attorneys and Candidate Attorneys to the Supreme Court of Natal, in effect at the time and promulgated just the previous year by Wragg and the other two judges now sitting on Gandhi’s case, did not actually require an original certificate.29
Remarkably, no one on the bench made any reference to any standard by which the case should be decided. Wragg’s colleagues on the bench seemed, however, to sense that the society’s certificate argument cloaked its true reasons for opposing Gandhi’s admission—and with good reason. Even before Gandhi applied for admission, the local press reported that the Law Society was considering opposing Gandhi.30 It is quite unlikely that the society would have known in advance of Gandhi’s application that Gandhi would tender a copy rather than the original of his Inner Temple certificate in support of his application. Accordingly, if the decision to oppose Gandhi was arrived at before the Law Society could have known of the alleged deficiency in his supporting documents, the society’s reliance on this deficiency was a pretext. Because the bar offered no ground for its opposition before the Supreme Court other than the deficiency in Gandhi’s certificate, it is reasonable to conclude that its actual grounds for opposition were ones that could not be publicly defended—race, economic self-interest, or both.31
Perhaps Justice John Turnbull, second puisne judge, sensed the bar’s actual motives when he differed with Wragg, stating that he had never heard of an original certificate being required. The chief justice, Michael Gallwey, joined this attack on the society’s position by noting that when he himself had applied for status as Queen’s Counsel, his representation that he was a barrister was accepted without the proof of a certificate. He undercut Greene’s misplaced reliance on the argument that affidavits were unacceptable by observing that Mr. Gandhi was not being tried for perjury. Justice Wragg, either persuaded or embarrassed by his brethren’s points, eventually embraced Justice Turnbull and Gallwey’s skepticism as to the society’s opposition, stating that he believed Gandhi’s representations and “did not wish to place any obstacle in his way.”32
The Court, now unanimous in its rejection of the society’s objections, granted Escombe’s motion, admitted Gandhi, and swore him in on the spot—but not without conditions. The court instructed Gandhi to remove his turban to conform to the rules of the Court. The same turban that Gandhi had refused to remove while in the magistrate’s court he now removed. While his friends would voice their misgivings about this act of obedience, Gandhi decided that his admission victory and his turban defeat constituted an outcome with which he could live. He bowed low and left the courtroom.33
NATAL: A LEGAL WORLD APART
Few places in 1894 could have matched the unusual texture of the legal world Gandhi was then entering. The system of prevailing law was anything but simple and pure. When Jan van Riebeeck claimed the Cape of Good Hope for the Dutch in 1652, he brought with him the Roman-Dutch law tradition then prevalent in Holland. When the Voortrekkers left the Cape for Natal nearly two centuries later, they carried with them not only this same Roman-Dutch legal tradition, which their forebears had inherited, but they also brought a touch of Cape legislation. Soon afterward, as the trekkers’ short-lived Republic of Natalia gave way to British control, the British chose not to install their own common law system. Rather, in keeping with the British policy of initially permitting former Dutch colonies to retain their legal regimes, England ordered in 1845 that “the system . . . called the Roman-Dutch Law . . . be . . . established as the law of . . . Natal.”34 Shortly after Natal was given home rule by the British and just two years after Gandhi’s admission to the bar, the Natal legislature passed the Supreme Court Act of 1896, in which the supremacy of Roman-Dutch law was affirmed by the colonists themselves.
The Roman-Dutch system that formed the historical foundation of Natalian law was of a hybrid character, built of one part Roman law and one part derived from German influences.35 The South African version of Roman-Dutch law had a tradition
