The Collected Works of Mahatma Gandhi/Volume II/1898
Letter to the British Agent (28-2-1898)
The Law 3 of 1885, as amended in 1886, denied "the coolies, Arabs, Malays and Mahomedan subjects of the Turkish Empire" citizenship rights, including the rights of owning immovable property. The Imperial and the Transvaal Govern-ments differed as to the applicability of the law to Indians. The issue was referred for arbitration to the Chief Justice of the Orange Free State, who decided that the Transvaal Government was bound and entitled, in its treatment of Indian and other Asiatic traders, to enforce the law, subject to interpretation by the law courts if an objection was raised on behalf of such persons that the treatment was against its provisions. The following letter relates to the subsequent development.
Pretoria, February 28, 1898
To Her Majesty's Agent Pretoria
We the undersigned British Indian subjects resident at Pretoria and at Johannesburg, as representing the British Indian community in the Transvaal, beg respectfully to bring to the notice of Her Majesty's Government, that, as suggested by her Majesty's Government, we are about to take steps in the High Court of the South African Republic  to obtain an interpretation of Law No. 3 of 1885, as amended in 1886, according to the terms of the Award of Chief Justice de Villiers at Bloemfontein,  for the purpose of having a decision as to whether or not British Indian subjects are entitled to carry on business in the towns and villages of this State.
We cannot refrain, however, from expressing our regret that Her Majesty's Government has decided not to act on our behalf in this matter to its conclusion, for we had hoped that, inasmuch as Her Majesty's Government had submitted our case to Arbitration, the matter would be seen through to the end by Her Majesty's Government.
We have, etc. (Signed) TAYOB HAJI KHAN MAHOMED HAJI HABEEB HAJI DADA MOHAMED CASSIM CAMROODIN & CO. M. H. YOOSUB
- 1^ The Test Case, Tayob Hajee Khan Mahomed vs. Dr. Willem Johannes Leyds, Secreatary of State, South African Republic, was filed on the same day. It was ultimately, on August 8, 1898, decided against the Indians.
- 2^ Vide “Open Letter”, before 19-12-1894 and “Letter to Europeans”, 19-12-1894
- 3^ In his interview, as well as letter, of May 18, 1897, Gandhiji represented that the British Government should bear the costs of the Test Case, but this request was turned down.
Enclosure in Confindential Despatch dated 9.3.1898 from the Honourable High Commissioner to the Republic of South Africa to Her Majesty's Principal Secretary of State for the Colonies, London.
Colonial Office Records: C. O. 417, Vol. 243.
The Somnath Maharaj Case (2-3-1898)
Under the Dealers’ Licenses Act, 1897, Town Councils and Town Boards in Natal were authorized to appoint “Licensing Officers” for issuing licences to traders and to hear appeals against their decisions and also against their own confirmation of such decisions. The report of the proceedings of the Durban Town Council in the Somnath Maharaj Case, in which Gandhiji appeared in the latter appeal, is given below. This report was incorporated by him as an appendix to the petition of December 31, 1898 to Mr. Joseph Chamberlain, Secretary of State for the Colonies. The adverse decision of the Town Council was set aside by the Supreme Court of Natal in Somnath vs. Durban Corporation, on March 30, 1898 on the grounds of improper procedure. In a further appeal, on June 6 (reported in The Natal Advertiser, 7-6-1898), the Town Council upheld the Licensing Officer’s reason for refusal of a licence to Somnath Maharaj—“as the class of trade he was engaged in was sufficiently provided for in the town and borough”.
THE INITIAL HEARING
- Mr. C. A. de R. Labistour appeared for the applicant, and said his client had ample capital to start in a decent way of business in the premises, which had been most satisfactorily reported upon by the Sanitary Inspector. The applicant was a capable businessman.
- Mr. Collins: Have we had the Licensing Officer’s reasons?
- The Mayor: No.
- Mr. Taylor: I don’t think the Licensing Officer need give reasons, unless requested to do so by a majority of the Council. All that we have to do is to decide whether or not we will confirm the Licensing Officer’s decision. I move that we confirm it.
- Mr. Henwood seconded the motion.
- Mr. Collins moved, as an amendment, that the Licensing Officer be requested to give his reasons.
- Mr. Ellis Brown seconded, remarking that it would be more satisfactory to have the reasons.
- The amendment was rejected by four votes to three.
- Mr. Collins pointed out that they were establishing a precedent, and he thought they were establishing an undesirable one. Of course, what was done in one case must be done in all, and under the circumstances, he would feel compelled to vote against the resolution.
- The Mayor remarked that the Council had by a majority decided not to ask the Licensing Officer for his reasons.
- The original motion was then put and carried, and the Licensing Officer’s decision was accordingly confirmed.
[March 2, 1898]
THE SUBSEQUENT APPEAL
- An Indian, named Somnath Maharaj, appealed against the refusal of a licence for premises belonging to the Natal Indian Congress, in Umgeni Road.
- Mr. Gandhi, who appeared for the appellant and the owners of the premises, said he had written to the Town Clerk for the reasons of the Licensing Officer for refusing the licence, but had been told that the reasons could not be given.
- In reply to a question from the Mayor, Mr. Gandhi said that the trustees of the Natal Indian Congress were the owners of the property.
- Mr. Gandhi, resuming, said he also asked the Town Clerk for a copy of the record, and was told that he could not be furnished with it. He contended that he was entitled by law to have it, as the ordinary rules of procedure in appeal cases would apply before that tribunal, and he was also entitled to the reasons. There was nothing whatever in the Act to show that the ordinary rules of procedure were to be subverted. The 11th section of the Act provided for the rules, which had been framed thereunder, but he did not know that the rules were constitutional. He did not propose to read authorities, because it seemed to him that common sense would show that if a right of appeal were allowed, the ordinary procedure would guide the conduct of such appeals. If that were not so, it would appear that the law had given a right to the subject with the one hand and taken it away with the other, for if he appealed to the Town Council and did not know why his licence had been refused, and was not allowed to obtain a record of the application, then he had practically no right of appeal. If he was allowed to appeal, surely he was entitled to a complete record of the proceedings; and, if not, he was an outsider. Was the Council going to decide that he was an out sider, although he had large interests at stake? He was told “You may come, you may say anything you like, without knowing what the ins and outs of, the case are,” and he had come before them; but, if there were any reasons, they would be surprised upon him, and if there was a report from the Sanitary Inspector, it would be surprised upon him also. He submitted that he was entitled to a copy of the record of the Council’s proceedings, and to the reasons, and if not, then the right of appeal had been refused to him. His client was one of the burgesses, and as such was entitled to every consideration a burgess should receive at the hands of the Council; instead of which he was practically opposed by the whole municipal machinery, had to anticipate the reasons for which his licence was refused, and had had to come to the Council, and then, possibly, after spending a lot of money, would perhaps be told that the Licensing Officer’s decision is upheld. Was this an appeal under the British Constitution?
- Mr. Evans: Has the applicant had a licence before?
- The Mayor: He has kept a store in another part of the Colony, but he has only been in Durban three months.
- Mr. Collins said Mr. Gandhi asked their decision on a point of law. They were a lay court, but he did not know that they were competent to give an answer without reference to their legal adviser. Under the law, the Council could require the Licensing Officer to state his reasons in writing, but he was bound to admit that he did not like the law on this point, as it did not seem to him to reflect true justice However, the law must be abided by, but it also provided means by which the Council could rectify what appeared to him to be an injustice. It was competent for them to get the reasons of the Licensing Officer in writing, and then to adjourn that meeting so as to give the appellant an opportunity of answering them. He thought that line should be adopted and he accordingly moved that the Licensing Officer be asked to furnish his reasons.
- Mr. Challinor seconded.
- Mr. Evans said that as the reasons of the Licensing Officer were privileged to the Council, he thought they should have them in writing.
- Mr. Ellis Brown: Yes; let them be handed round.
- Mr. Clark moved that they retire to the Mayor’s parlour for five minutes, in order to see the reasons.
- Mr. Collins seconded, and remarked that he had often heard that justice was blind, but had never seen so forcible an illustration of it before. Some members of the Council were prepared to vote on the matter without knowing why the licence had been refused.
- Mr. Taylor agreed with Mr. Collins that justice was blind, but said there were councillors who could see the Licensing Officer’s reasons without looking at a bit of paper. He was sorry there were those present who were so ignorant that they could not see it.
- The motion was carried, and the members of the Council then retired.
On returning to the Council Chamber,
- Mr. Gandhi: I want a decision on the points I have raised.
- The Mayor: The Council is against you.
- Mr. Gandhi said that the only fault that could be found with his client was that he had a brown skin, and that he had never held a licence in Durban before. He was told that the Council would refuse any application for new licences, no matter whether the applicants had good business qualifications or not. If that was correct it was unjust, and if a man was not to have a licence because he had a brown skin, such a decision savoured of injustice, and was certainly un-English. There was nothing in the law to show that licences must be refused to persons because of their nationality. The tribunal should not be guided by what was said during the time of panic, but rather by the words of the late Premier, who said it should be borne in mind that the Town Council had been given a giant’s strength, but they should take care that they did not use it in that fashion. The applicant had been a storekeeper at Mooi River for six years, and was a thoroughly respectable man, whose straightforwardness and business capacity had been vouched for by four Natal European firms. He hoped the Council would grant the licence.
- Mr. Taylor moved that the decision of the Licensing Officer be confirmed.
- Mr. Clark seconded the motion, which was carried nem. con.
The Natal Mercury, 3-3-1898
- 4^ The Natal Advertiser of March 3, 1898, states that the appeal was heard on the previous day.
Application for Refund of Fine (9-3-1898)
53A, FIELD STREET,: DURBAN,
March 9, 1898
THE TOWN CLERK
Jusa Jana and others, who own a squatter’s license from the Government, [and] have been selling bread &c. in open at the Point, were charged with keeping an eating house & were each fined £ l. According, however, to the case of Dyer v Musa, the judgment of the Magistrate in the above case would be incorrect. The appeal in Dyer v Musa was decided after the above cases were decided. Under the circumstances, will the Town Council be pleased to return the fines paid by the men?
M. K. GANDHI
May I also ask for a refund of the fine of 5/0 imposed upon Musa
and paid by him, the judgment having been set aside by the Supreme
M. K. G.
Durban Town Council Records: Letter No. 23596, Vol. 134.
- 5^ The letter is in Gandhiji’s handwriting.
Address to G. V. Godfrey (Prior to 18-3-1898)
The following congratulatory address, drafted by Gandhiji, was presented to Mr. G. V. Godfrey on March 18, 1898, at a meeting of Indians in Durban. Gandhiji was among the signatories.
[Prior to March 18, 1898]
GEO. VINCENT GODFREY, ESQ.
DEAR MR. GODFREY,
We, the undersigned Indians, hereby beg to congratulate you on your success at the recent Civil Services examination of the Colony. The event derives great importance among the Indian community, as you are the first Indian in the Colony to have gone up for and passed that examination. The fact that you have failed before, to our minds, speaks in your favour; it shows that you persevered in spite of difficulties and failures, which are but a stepping stone to success. We cannot omit to mention here that Mr. Subhan Godfrey deserves the thanks of the Indian community for having given you opportunity to prosecute your studies. He has indeed set an example to the other Indian parents in the Colony as to what a father should do to educate his children, as you have shown what an Indian youth in this Colony can do in the educational line if he has the opportunity. An even more striking instance of his liberality in educating his children is to be found in the fact of his having sent your eldest brother to Glasgow to pursue his medical studies. We are glad to know that your ambition does not end with the Civil Services examination, but that you still wish to continue your studies much further. We pray that God may grant you health and long life to enable you to fulfil your desires, and hope that your perseverance and industry will be copied by other young Indians in the Colony, and that your success will serve as an encouragement to them.
your sincere well-wishers
The Natal Advertiser, 19-3-1898
Letter to G. V. Godfrey (Prior to 18-3-1898)
[Prior to March 18, 1898]
DEAR MR. GODFREY,
Several Indians—including your friends and well-wishers—have decided to present you with a congratulatory address on your having been the first Indian to have passed the Civil Services Examination of the Colony. I trust you will accept invitation hereby to receive the address at the Congress Hall in Grey Street at 7.45 p.m. on Friday next, the 18th instant.
I have much pleasure in enclosing herewith a proof copy of the address for your perusal.
Dear Mr. Godfrey,
From the photostat of the office copy in Gandhiji’s handwriting: S. N. 2730.
A Statement of Account (25-3-1898)
March 25, 1898
THE NATAL INDIAN CONGRESS
Dr. to M. K. Gandhi as on the 31st December
|25. 4. 97||To check for stamps on memorials registration||2- 2- 4|
|30.12. 97||To Pitcher’s Bill pd. re. cancellation of Bond||0- 9- 6|
|2. 10. 97||To stamps on memorial||0-14- 0|
|16.10. 97||To stamps letter to Nazar||0- 0- 61/2|
|6. 12. 97||To two chimney pieces||0- 2- 0|
|9. 12. 97||To check to Bank of Africa re. Fareed’s ppty.||300- 0- 0|
|Balance due||£ 303- 8- 41/2|
From the photostat of the office copy: S. N. 2723.
- 6^ Mansukhlal Hiralal Nazar (1862-1906), who assisted Gandhiji in his work in South Africa.
Notes on the Test Case (Prior to 4-4-1898)
This and the following item comprise legal “Notes” prepared by Gandhiji to assist the counsel who represented Tayob Hajee Khan Mahomed in the Test Case.
[Prior to April 4, 1898]
With deference to Counsel’s opinion expressed when I was in Pretoria, I submit that according to Clause 1 in the Act, the Indians to whom an attempt is being made to apply the Law do not come under it.
The Clause reads: “This Law is applicable to the persons belonging to one of the aboriginal races of Asia, among whom are comprehended the so-called Coolies, Arabs, Malays, and Mahomedan subjects of the Turkish Empire.”
I take it that the meaning of the various expressions in the clause to be accepted by the Court will be the meaning which a standard work, as for instance, a Dictionary, would give them, and not the meaning given to them by the populace, either through ignorance or prejudice; I mean, in the absence of a definition of these expressions in the law itself.
If this be so, the meaning of the expression “aboriginal races of Asia” can only be found by a reference to an historical work. A reference to Hunter’s “Indian Empire”, chapters 3 and 4, would shew at a glance who are the aborigines and who are not. The matter is put so plainly that there can be no mistake about the distinction between the two. It will be seen at once from the book that the Indians in South Africa belong to the Indo-Germanic stock or, more properly speaking, the Aryan stock. I do not know that there is any authority that has opposed this view. Works by Morris and Max Müller, easily obtainable in Pretoria, also support this view, and if this meaning of the expression is not accepted, I do not know what other meaning is to be attached to the expression.
A reference to the Green books would shew that even Sir Hercules Robinson (I am not sure as to the name) excepts from the clause under discussion the Indian Traders under somewhat similar grounds, and if the Indians in the Republic are not included in the expression “aboriginal races of Asia”, they are certainly not to be classed among Coolies, Arabs, Malays, and Mahomedan subjects of the Turkish Empire.
Are they Coolies or Arabs? If books and despatches are to berelied upon, they are not either. And it may be stated here parenthetically that, if it was really intended to apply the Law to the Indians, the Law should have stated so clearly by putting the very word in. And if the matter has been left in doubt, the interpretation must be in favour of the Indians, the Law being a restrictive law. To return, the word “coolie”, according to Webster, means an East Indian porter or carrier, especially a labourer transported from India, China, etc., for service in some other country and that is exactly the meaning given to it by the Natal Laws as well as other authorities. Sir Walter Wragg, in his judgment in the case of Vinden versus the Ladysmith Local Board, deals with the question pretty fully. Copy of the full report of the Case is hereto attached, vide pp. 10, 11 and 12. That the Indians in the Republic are not Arabs does not require any authority to support this contention. They never belonged to Arabia, and the Indian Mahomedans, whom the populace miscalls Arabs, are simply converts from Hinduism. That fact no more makes an Indian an Arab than conversion from Buddhism to Christianity would make a Chinese a European.
The word “so-called” appears before “coolies”: I don’t know that that would alter what has been stated above.
From the photostat of the office copy: S. N. 3705.
(Appendix) SIR WALTER WRAGG’S JUDGMENT
Mr. Justice Wragg: It appears to me that the important question, directly put to the Court for decision, is whether or not Mrs. Vinden is a ‘Coloured Person’ within the meaning of Law 15, 1869. I understand that my learned Brethren hesitate to decide this paint and therefore what I have to say must be taken as my opinion only. I hold strongly the view that the plaintiff is not a ‘Coloured Person’ within the meaning of that Law, on the following grounds. Under Law 15, 1869, Sec. 2. any ‘Coloured Person’, who is found wandering abroad unable to give a good account of himself, is liable to punishment. In Section 5 the term ‘Coloured Person’ is defined as including, among others, ‘Coolies’. Before that Law of 1869 was passed, there were in existence several Laws relating to Indian Immigrants. Looking at the preamble of that and the later Laws, we find that the term ‘Coolie’ means persons who, under these Laws, have been introduced from India into this Colony at the public expense, or by private individuals at their own expense, for a particular class of service. Then came the ‘Coolie Consolidation Law’ of 1870, in which the term ‘Coolie’ was again used and in the same sense. Lastly, we have the existing Law No. 25 of 1891, which was passed as the outcome, in many respects, of the labours of the Indian Immigration Commission of 1885-1887. In this Law the offensive word ‘Coolie’ does not appear, its place being taken by the term ‘Indian Immigrant’, which, in Section 118, is defined as meaning and including “all Indians introduced from India into Natal under the provision of the Laws regulating such introduction and those descendants of such Indians who may be resident in Natal.” Persons usually described as Asiatics, Arabs, or Arab traders, who have been so introduced, are expressly excluded.
Now Mrs. Vinden came to this Colony at her own expense and she is wife of David Vinden, who was not brought here as an Indian Immigrant. How can either of them be considered a ‘Coloured Person’ within the meaning of Law 15, 1869? I say, most emphatically, that they are not ‘Coloured Persons’ within the meaning of that Law.
A ‘free’ Indian, that is to say, an indentured Indian who, having been introduced under the Immigration Laws, has completed his term of service, is, with his descendants, a ‘Coloured Person’ within the meaning of the Law, because he comes within the definition of Law 25, 1891, Sec. 118. But that is not the case of either David Vinden or his wife.
Vinden V. Ladysmith Local Board, 1896; Natal Law Reports
- 7^ Vide last para of the succeeding item.
- 8^ Law 3 of 1885, as amended in 1886.
- 9^ Sir William Wilson Hunter, 1840-1900; authority on Indian affairs and leading member of the British Committee.
- 10^ The following is a marginal note in Gandhiji’s handwriting: “Green book No. 1, 1894, page 28, paras 7 & 8, also “Petition to Chamberlain”, 31-12-1898”
- 11^ The enclosure referred to is not available, but the judgment of Sir Walter Wragg, taken from the Natal Law Reports, No. 17, dated March 23, 1896, is given as an appendix to the “Notes”.
- 12^ This case was one of wrongful arrest in which the plaintiff, an Indian Christian woman, Mrs. Vinden, claimed £200 damages, as she was gaoled after being asked for her Pass one night by a Native constable. The question arose whether she was a ‘Coloured Person’ in terms of the Law. The Judge awarded Mrs. Vinden £20 as compensation for wrongful arrest.
Notes on the Test Case (4-4-1898)
April 4, 1898
NOTES ON THE EVIDENCE REQUIRED IN TAYOB HAJEE KHAN
MAHOMED vs. DR. LEYDS
Evidence is required to prove that
- (a) Plaintiff is a subject of the Queen of Great Britain.
- (b) He has been established and [has] carried on business as a merchant in Church Street, Pretoria, since 1893.
- (c) He has during that time conformed to and has obeyed the laws of the land.
- (d) He is not an Arab.
- (e) He is not a Mahommedan subject of the Turkish Empire.
- (f) He is not a Malay.
- (g) He is not a coolie in any sense of the term.
As to (a):
Plaintiff is a native of Porbunder, a port in Kattywar, a Province in the south-west of India. Porbunder is under British administration. Mr. H. O. Quin, styled the State Administrator, manages the States. A reference to any map of the world would show that the Province of Kattywar is included in British India and is marked red. In a separate map of British India, Kattywar and other portions would be found marked yellow. These are two divisions of British India, viz., that portion which is called Khalsa, or British India proper, under the direct control of British political officers, and the other, Protected British India, where there is an intermediary between the people and a British Officer. Nevertheless, inhabitants of both parts of India are, for our purposes, equally British subjects and entitled to the same privileges outside India. This portion can be proved by putting in any map, a standard. Geography, or even by getting the evidence of’ the British Agent. Further, Plaintiff has very often transacted business with the British Agents in his capacity as a British Indian trader and has been accepted as such.
The illuminated address that went to the Queen on behalf of the British Indians in the Transvaal bore his among the other signatures. This also the British Agent could prove. And if that course is thought advisable and adopted, it may lend a certain dignity to the case, if it does nothing else.
I am also told that Plaintiff was, at one time, required to fill in a form by one of the Landdrosts, wherein he described himself as a British subject, and this was accepted by that officer.
As to (b):
It appears that, in 1882, he was a partner of Tayob Ismail; in 1883, joined the firm of Aboobaker Amod and Co., and was the resident partner and manager of the firm’s business in Pretoria. Aboobaker Amod and Co. was transformed into Tayob Hajee Abdoolla & Co., in 1888 and, since 1892, he has been carrying on business as Tayob Hajee Khan Mahomed & Co., either with or without partners. He had and has other businesses also in the Transvaal. Many witnesses could prove this, or it might be possible to produce deeds of partnership or even the licenses, if they were granted.
As to (c):
Plaintiff has regularly paid taxes for properties belonging to him or occupied by him. There are no convictions against him. Receipts for ‘the taxes might be put in. He contributed his share, I believe, to the Commando levy. He has kept his premises in good sanitary condition, as Dr. Veale can testify.
As to (d), (e), and (f):
If (a) is proved, i.e., if he is proved to be a British Indian, (d), (e), and (f) are proved ipso facto; for if he is an Indian he cannot be an Arab, or Malay [either], and if he is a British subject he cannot be a Turkish subject. It is not denied that he is a Mahomedan, and the confusion has arisen because of that fact. Somehow or other, peoplein South Africa have come to look. upon Indian Mahomedans as Arabs and Turkish subjects. Plaintiff is neither. He has never been to Arabia, even as a pilgrim, and he has never been to Turkey. An Indian Arab or an Indian Malay is an impossibility. Malays, I understand, are, or were formerly, natives of Java and were first brought to South Africa by the Dutch.
As to (g):
The expression “Coolie” was first officially used by the Natal Legislature when they introduced into the Colony the bona fide “Coolies”, i.e., field labourers, for their estates. There were no other Indians in the Colony or South Africa at the time, and it was not before 1870 that the first Indian trader came to South Africa. By this time, there was a large population of Indian field labourers, and they were at the time, without meaning any offence to their feelings, called “coolies” by the white men. As the Indian traders came, white men, not having known any other Indians, called them also “coolies”, forgetting the specific meaning of the expression as applied, not to a nation, but to a class of labourers. Gradually, trade jealousy grew up, and the expression degenerated into a term of contempt as applied to Indian traders and began to be freely and consciously used. Some Europeans, having some respect for the traders and in order to make a distinction, began to call the Indian traders “Arabs”. The expression “coolie” then followed the Indians wherever they went in South Africa, generally as a term of contempt; and remains so to the present day. For its legal or dictionary meaning, Webster might be taken as an authority. For its commercial and popular meaning as understood there, many merchants might be found willing to testify that they would never think of calling Plaintiff and Indians like himself “Coolies”, except in order to insult them.
Attention is also drawn to my notes sent some time ago specially as to the expression “coolie” and generally as to the interpretation of the Law, as also to the case of Vinden v. Ladysmith Corporation, sent herewith, and containing Sir Walter Wragg’s dissertation on the expression “Coolie”.
M. K. GANDHI
From the photostat of a typed copy bearing Gandhiji’s signature: S. N. 3704.
- 13^ This is how Kathiawar was then spelt in documents and maps prepared by Europeans. The collection of former principalities is now merged in Bombay State and i known as Saurashtra.
- 14^ Territory under direct administration of Government.
- 15^ Magistrates or judicial officers.
- 16^ A tax collected in the Transvaal at the time of the Boer Commando action against the Kaffir Chief, Malaboch, in 1894.
- 17^ Vide “Notes on the Test Case” given earlier.
Letter to Colonial Secretary (21-7-1898)
53C FIELD STREET,
July 21, 1898
THE HONOURABLE THE COLONIAL SECRETARY
I applied to the Immigration Officer at Durban for temporary permits for certain four Indians. The officer is prepared to grant the permits on a deposit of £25 each. On my applying to him to take £10 each, he informs me he has no authority to accept such small deposits. I beg to draw your attention to the fact that a deposit of £10 is accepted at Charlestown. The system of deposits is a source of very great annoyance, and I submit that £10 is ample for the purpose for which the deposit is intended.
If the holders of temporary permits forfeit the deposits, the law can still reach them and they could be deported from the Colony. Under the circumstances, I trust you will be pleased to authorise the Immigration Officer at Durban to accept a deposit of £10 for each person requiring a temporary permit.
I have the honour to remain,
your obedient servant,
M. K. GANDHI
From the original handwritten letter, signed by Gandhiji, available in the Pietermaritzburg Archives, No. C.S.O/4799/98.
- 18^ Pietermaritzburg
Telegram to the Viceroy of India (19-8-1898)
JOHANNESBURG, VIA ADEN
August 19, 1898
HIS EXCELLENCY THE VICEROY OF INDIA
WE BRITISH INDIANS TRADING AT JOHANNESBURG RESPECTFULLY DESIRE TO BRING TO YOUR EXCELLENCY’S NOTICE THAT HIGH COURT HERE HAS DECIDED THAT ALL INDIANS MUST RESIDE AND TRADE IN LOCATIONS ONLY.
Foreign Department, Ministry of External Affairs, Government of India: Pros. September 1898, Nos. 55-56.
- 19^ In the Test Case (vide “Letter to the British Agent”, 28-2-1898, supra), the Court held that there was no distinction between places of business and residences, and that Asiatics must reside as well as transact their business m Locations set apart for them by Government.
Petition to Indian National Congress (22-8-1898)
On the Transvaal High Court deciding that Indians must live and trade only in Locations, they made the following representation to the Indian National Congress.
SOUTH AFRICAN REPUBLIC,
August 22, 1898
THE CHAIRMAN AND MEMBERS OF THE
INDIAN NATIONAL CONGRESS
We, the undersigned British subjects residing at Johannesburg, in the South African Republic, desire to respectfully draw the attention of your Congress to the following facts:
- 1. That we are British subjects, born in British India and trading at Johannesburg as merchants and shopkeepers.
- 2. That some of us have resided in this Republic for twelve years and upwards, and have valuable stocks of goods in our business premises at Johannesburg.
- 3. That we respectfully submit that as British subjects we are entitled to the full benefit of the Convention, known as the London Convention, entered into in the year 1884 between Her Majesty’s Government and the Government of the South African Republic, Article 14 whereof provides that all British subjects shall have the right to reside and carry on business in any part of the South African Republic.
- 4. That the High Court of this Republic has recently decided that all Indians and other Asiatics must reside and trade in certain Locations to be pointed-out by the Government of this Republic, and not elsewhere.
- 5. That the said decision of the High Court was based upon an enactment of the Volksraad of this Republic, passed subsequent to the Convention aforesaid, to wit in the year 1885, being Law No. 3 of 1885, which said Law is in direct conflict with the express terms of the said Convention.
- 6. That, even assuming that we are bound by the provisions of the said Law No. 3 of 1885, which we deny, then we respectfully submit that the said decision of the High Court of this Republic is bad in law, and manifestly contrary to the true meaning and intent of the said Law, which provides that the Government of this Republic shall have the right to fix places of residence in Locations for Asiatics in this Republic, but in no way restrict the right of Asiatics to trade in any part of this Republic.
- 7. That the said decision of the High Court is final and no appeal lies therefrom.
- 8. That we cannot believe that it was or is the intention of Her Majesty’s Government to consent to our being deprived of those rights expressly secured to all British subjects by the London Convention aforesaid and to consent to Indian British subjects being placed in a worse position, so far as treaty rights are concerned, than European British subjects.
- 9. That we have no doubt that the said decision of the High Court of this Republic will be enforced forthwith, and that we will be obliged to close our places of business in and about Johannesburg and to reside and trade in Locations to be fixed at the arbitrary choice of the Government of this Republic, which proposed Locations are situate about three miles from Johannesburg, and adjoining the Kaffir Location; the result of which measure will be that we will be ruined in our businesses, and be deprived of the means of earning a livelihood, and will be compelled to leave this State, as Johannesburg is the only important business centre in this Republic and the place where most of the Indians in this Republic reside and carry on business.
We, therefore, respectfully request your Congress to use its great influence on our behalf with a view to obtaining redress of our grievances.
We have the honour to be,
your most obedient servants,
(Here follow various signatures.)
- 20^ A similar petition was sent also to the Secretary of State for the Colonies, the Secretary of State for India, and a copy to the British Committee of the Indian National Congress.
- 21^ Legislative Assembly.
Letter to Lord Hamilton (25-8-1898)
P. O. BOX 1302
August 25, 1898
THE RIGHT HONOURABLE
LORD GEORGE HAMILTON
PRIVY COUNSELLOR, ETC.
SECRETARY OF STATE FOR INDIA
RIGHT HONOURABLE SIR,
On behalf of ourselves and other Indian British subjects residing at Johannesburg in the South African Republic we beg herewith to hand you the enclosed petition.
We have the honour to be,
Right Honourable Sir,
your most obedient servants,
Colonial Office Records: Memorials and Petitions: 1898.
- 22^ The forwarding despatch carried a Colonial Office minute reading: “The petition is word for word the same as that which has also been addressed to Mr. Chamberlain and the I. N. C.” (Vide the preceding item.)
Telegram to M. Bhownaggree (30-8-1898)
August 30, 1898
SIR MANCHERJEE BHOWNAGGREE
COURT DECIDED GOVERNMENT HAS POWER REMOVE INDIANS LOCATIONS FOR TRADE AND RESIDENCE JUDGE JORRISEN DISSENTING. GREAT CONSTERNATION. FEAR OF REMOVALS PARALYSING TRADE. LARGE ISSUES AT STAKE. RELYING MR. CHAMBERLAIN’S PROMISE MAKE REPRESENTATIONS AFTER TRIAL TEST CASE DEFINITE ISSUE NECESSARY. PLEASE HELP.
Colonial Office Records: Memorials and Petitions, 1898.
- 23^ Member of the British Committee of the Indian National Congress in London.
Telegram to "India" (30-8-1898)
THE COURT HAS DECIDED THAT THE GOVERNMENT HAS POWER TO REMOVE INDIANS IN THE TRANSVAAL TO LOCATIONS FOR BOTH TRADE AND RESIDENCE. JUDGE JORRISEN DISSENTED FROM THE DECISION. GREAT CONSTERNATION PREVAILS. IT IS FEARED THAT THE REMOVAL TO LOCATIONS MAY PARALYSE TRADE. LARGE INTERESTS ARE AT STAKE. WE ARE RELYING UPON MR. CHAMBERLAIN’S PROMISE TO MARE REPRESENTATIONS TO THE TRANSVAAL GOVERNMENT AFTER THE TRIAL OF A TEST CASE, WHICH, HE SAID, WAS NECESSARY TO SECURE A DEFINITE ISSUE.
- 24^ The telegram was published by India as from its ‘Johannesburg Correspondent’. Gandhiji was then acting as the Durban, Johannesburg and South African correspondent of India.
- 25^ This telegram, the text of which is practically identical to that of the preceding one, was dispatched on the same day. India, being a weekly, published it in the following issue.
Dada Osman's Case (14-9-1898)
The following is a report of the proceedings of a case before the Durban Town Council, in the course of which Gandhiji, who appeared in appeal, addressed the Council and made a strong plea against the refusal of trade licences to Indians on racial grounds. The Council dismissed the appeal.
September 14, 1898
A special meeting of the Town Council was held yesterday afternoon, to consider an appeal against the Licensing Officer’s decision upon the application of Dada Osman for a wholesale and retail license for the premises No. 117, Grey Street. His Worship the Mayor (Mr. J. Nicol) presided and there were also present the Hon. Mr. Jameson, M.L.C., Messrs. M. S. Evans, M.L.A., Henwood, Collins, Challinor, Hitchins, Taylor, Labistour, Garlicke (town solicitor) and Dyer (Licensing Officer). Mr. Gandhi appeared for the applicant.
The Town Clerk (Mr. Cooley) read the Licensing Officer’s reasons for his decision as follows:
- “The Act 18 of 1897, as I understand, was passed with a view of placing some check on the issue of trading licenses to certain classes of people, generally regarded as undesirable, and, as I believe I am right in assuming that the applicant in question is one that would be included in that class, and, moreover, as he has never before had a license in Durban, I have felt it to be my duty to refuse the Iicense.”
The report of the Sanitary Inspector on the premises was also read, and was to the effect that they had been previously licensed and were suitable. Mr Alexander McWilliam, merchant, of West Street, called as a witness, said he had dealt largely with the applicant, who had owed him as much as £500 at a time. He had found him a good business man, and honest in his dealings. In fact, he was prepared to trust him to the extent of £500 again. Witness considered the premises suitable and respectable for such a business as it was sought to carry on.
By Mr. Collins: Is the applicant capable of keeping books?
Witness: I do not know, but from the way he expresses himself in his letters to me, I should imagine that he would be able to keep books. Dada Osman, the applicant, also gave evidence, and said he had been in Natal about 18 years. He had been engaged in business the whole of that time. He had two stores in Umsinga. He wanted to open a store in Durban, because his family lived here. Witness’s private expenses here were £20 per month, and his rent for his house and store amounted to £11 per month with taxes. His house and store were lighted by electricity, and his household furniture, of the value of over £100, was purchased in Durban. He had business dealings with a number of large firms in Durban, and could keep books in English, being acquainted with both single and double entry systems. Applicant’s books had been inspected and passed by the Licensing Officer. A license was not absolutely necessary for the supply of his up-country stores but he desired a license so as to cover his living expenses in Durban, where he was obliged to keep a house, as his wife could not very well travel with him between Vryheid and Umsinga, to which places he had to go from time to time in connection with his businesses. He had 2 stores in Umsinga, and had never had a license in Durban. The Umsinga stores had been in his possession over 15 years, and, during that time, he had bought all his goods in Durban. If the Council refused his license, he would not have to shut up his up-country stores. His wife had been in Natal 5 months. He was married in India 8 years ago and had visited India since.
Abdul Cadir, managing partner of the firm Mahomed Cassim & Company, owners of the premises in respect of which the application was made, was called, and said the rent fixed was £10 and taxes. The store had been licensed before. Witness owned 3 or 4 properties in Durban, amounting in value to between £18,000 and £20,000. Most of this property was let and if Osman did not obtain a license, witness would lose the rent of that particular store. He had known the applicant a long time, and knew that he would be a good tenant.
Further evidence as to applicant’s respectability was given by another Indian merchant.
Mr. Gandhi stated that the last occasion on which he addressed the Council he, unfortunately, failed to convince them that the landlord’s interests should be considered. The managing partner of the firm of Mahomed Cassim & Company told the Council that day that the present applicant was the best tenant he could get for the premises and that he owned property of the value of £18,000, most of which he hired to persons such as the applicant. He further said that if the license was withheld from the applicant, he would not be able to get a tenant for his premises. It was clear that the landlord’s interests ought to be considered. Mr Abdul Cadir was a rate-payer just as good as any of the ratepayers of the Borough, and his voice should be heard by the Council. In the applicant, Abdul Cadir had a tenant whom he had known for a very long time and it would be a hardship to the landlord if the license was refused. The premises were suitable for a store, and it would not be possible for the landlord to hire them for any other purpose. Evidence had been led to the effect that the store had been previously licensed, and Mr. McWilliam, a perfectly disinterested witness, stated that the premises were decent and respectable. Under the circumstances, he hoped the Council would give due weight to the interests of the landlord. As to the applicant himself, testimony had been brought forward to show that his evidence was true, and he desired to do some business in Durban to meet the expenses entailed in maintaining a household here. They had in the applicant a man perfectly decent and respectable, straight in his dealings, who could speak English sufficiently to make himself understood, and kept books in English. Applicant’s books had previously been passed, and he thought the Council would admit that the applicant had stood the test very well indeed. There could not be the slightest objection either to the premises or the applicant. There was nothing objectionable in the applicant except what the Licensing Officer had been pleased to state in his reasons, and, with all deference to the Council, he submitted that the Licensing Officer had nothing whatever to do with the speeches made in the Legislative Assembly at the time the Act was passed. There was nothing in the preamble of the Act to show that this was the intention of the measure. It merely said that it was necessary to regulate the issue of licenses to wholesale and retail dealers, no distinction being made as to desirables or undesirables, and yet the Licensing Officer, who was supposed to have a judicial mind at the time of considering applications, had actually gone out of his way to refer to speeches made at the time the Act was passed. This was a most extraordinary course for a Licensing Officer to take, and he hoped that because the Licensing Officer had seen fit to refuse the license for the reasons given, they would upset the decision. The Licensing Officer stated that he believed he was right in assuming that the applicant would be included in the undesirable class, but what right had he to make such an assumption? He (Mr. Gandhi) would like to know who was an undesirable and how such a person would be described, and would venture to cite the opinion of the Secretary of State for the Colonies on the point. Mr. Gandhi read extracts from a speech delivered by Mr. Chamberlain at the conference with the Colonial Premiers, when the Right Hon. gentleman said they had to bear in mind the traditions of the Empire, which made no distinction in favour of or against a race on the grounds of colour, and referred to the wealth and civilization of Indians, and the services they had rendered the Empire in times of trouble. According to Mr. Chamberlain, it was the character of the immigrants they had to deal with, and it was not because a man was of a different colour to themselves that he was undesirable, but because he was dirty or immoral, or a pauper, or because he was in some other way objectionable. That was what an undesirable immigrant was in the opinion of the Secretary of State for the Colonies, and no such objection could be brought against his client. The only objection that had been raised to the applicant, and that had been discounted by the Secretary of State, was that he was an Indian, and, therefore, came to be classed as an undesirable person. He hoped that that reason would not be accepted by the Council. The Licensing Officer had placed the Indian community under a deep debt of gratitude by giving the only reason for which these licenses were refused. It had been said in that Council Chamber that the objection to Indians was not their colour, or because they were Indians, but because they would not live in a decent manner. That objection could not be advanced against his client. He wished to point out that if the Council refused that license, they would place all Indians in the same scale, and would not encourage them to live in premises that were decent and respectable and to live in every way like respectable citizens. Everything done with regard to these licenses became known outside, and if a license was refused to such a man as his client, Indians would say that the Town Council did not want them to live decently and honestly, but anyhow. The Council should not allow such a feeling to be created among the Indian population. It was said on a previous occasion that it was necessary that these licenses should not be increased, but that question did not arise in the present case, as the store for which a license was applied for, had been licensed that year. By granting the application the number of licenses would not be added to. If these stores were to be shut up, the Indian landlords would have to shut up their businesses, and he hoped the Council would give due consideration to the appeal, and order the issue of a license to his client.
Mr. Taylor said he was not convinced that the Licensing Officer was in error, and he, therefore, moved that the decision be confirmed.
Mr. Collins said that he was not at all surprised that there was a very great deal of reluctance on the part of the Council to refuse the license, but he believed the license was going to be refused, and he had no hesitation in saying that the reason was not that the applicant was not suitable except for the fact of his being an Indian. What Mr. Gandhi had said was perfectly true, and he (Mr. Collins) felt Some relief in saying that most of these licenses, if not all, had been refused mainly on that ground. The Council had been placed in a very unhappy position because it had to carry out a policy which, in the discretion of Parliament, had been considered necessary. Parliament, representing the community, had come to the conclusion that it was undesirable that Indians should increase their hold on the trade of Durban, and it was on that ground that the Council was practically called upon to refuse licenses which were not otherwise objectionable. He thought the applicant would have a grievance by the refusal of the license, but it had been found expedient, as a matter of Colonial policy, that these licenses should not be increased, and he, therefore, seconded Mr. Taylor’s motion.
The Mayor said that Messrs. Evans, Labistour, and Hitchins would not be able to vote as they had come in late.
Mr. Labistour said that, with regard to his being late, he thought an apology was due from him to His Worship and the other members of the Council, but he would like to explain that he had studiously avoided attending these licensing meetings, as he thoroughly disagreed with the dirty work they were called upon to do. He had come into that meeting expecting that the licensing business would have been concluded earlier, and that the ordinary business would be commenced by the time he arrived. The remarks made by Mr. Collins met with his approval, but any councillor could mark his dissent with what they were called upon to doby not taking part in it. He held that, sitting as a court of appeal, it was for them to hear the evidence, and, unless there was some good ground against an applicant, they ought to grant the license. If the burgesses of Durban, or the people of the Colony, wished these licenses to be stopped, they could go to the Legislature and put an end to applications for licenses by members of the Indian community.
On being put, Mr. Taylor’s motion to uphold the Licensing Officer’s decision was carried em con., and the appeal was consequently dismissed.
The Natal Mercury, 15-9-1898
Notice for a Congress Meeting (15-9-1898)
September 15, 1898,
A meeting of the Congress will be held tomorrow evening at 8 p.m. punctually to deal with the following matters:
Congress report—Accounts—Consideration of the debt— Sanction for £10 sent to Mr. Nazar—Sanction for £10 sent to Sir Mancherjee Bhownaggaree—Sanction for repayment of debt incurred by Mr. Nazar—Resignation of the Honorary Secretary and other business.
Mr. Nazar will not attend the meeting.
It is hoped that in view of the importance of the meeting, all the members will be present.
Meeting of the Congress will take place tomorrow evening at 8 p.m. punctually to consider report of the Hon. Sec. &c. &c.
M. K. GANDHI
From the original office copy in Gujarati, in Gandhiji’s own hand, in the National Archives, New Delhi: S. N. 2807.
- 26^ Mr. Nazar had been sent to London on the occasion of the Colonial Premiers’ Conference held there in 1897.
- 27^ Gandhiji sometimes spelt it thus.
- 28^ This last paragraph is typed in English.
Telegram to Colonial Secretary (3-11-1898)
November 3, 1898
MAHOMED CASSIM CAMROODEEN & CO.
HON’BLE COLONIAL SECRETARY
P. M. BURG
RULES PUBLISHED GAZETTE RE VISITORS AND EMBARKATION PASSES HAVE CREATED GREAT DISSATISFACTION AMONG INDIANS. MEMORIAL TO HIS EXCELLENCY BEING PREPARED. HUMBLY REQUEST BEEHALE INDIAN COMMUNITY SUSPENSION RULES MEANWHILE.
From the photostat of a handwritten copy which carries Gandhiji’s signature: S. N. 2845.
- 29^ For the restrictions imposed, deposit taken and fee levied under the Immigration Act, 1897, vide “Letter to Colonial Secretary’ July 21, 1898, and “Petition to Chamberlain”, 31-12-1898, infra.
- 30^ Vide “Petition to Chamberlain”, 31-12-1898, infra
Petition to Indian National Congress (28-11-1898)
S. A. REPUBLIC
November 28, 1898
THE CHAIRMAN OF
THE INDIAN NATIONAL CONGRESS
We, the undersigned British Indians, residing at Johannesburg in the South African Republic, beg respectfully to draw the attention of your Congress to the following facts:
- 1. That by Government Notice No. 621, published in the Staats Courant of this Republic, dated November 19, 1898, copy whereof is hereunto annexed, all Indians and other Asiatics are ordered) from and after the first day of January, 1899, to reside and trade only in Locations to be pointed out by the Government of this State.
- 2. We respectfully submit that the terms of the said Government Notice are in conflict with the provisions of the “London Convention”, which provides that all British subjects, without any distinction, shall have the full right to reside and trade in any part of the South African Republic.
- 3. That should the provisions of the said Government Notice be carried into effect, we will suffer great-pecuniary loss, as many of us have established ourselves in business in Johannesburg and elsewhere in this Republic.
We, therefore, respectfully request your Congress to use its influence on our behalf, with a view to obviating the serious injury that will otherwise be inflicted upon us.
We have the honour to be,
your obedient servants,
V. A. CHETTY
A. PILLAY AND CO.
GOVERNMENT NOTICE NO. 621 
For general information it is hereby notified that the Honourable Executive Council, by resolution of Art. 1101, dated November IS, 1898, has decided:
- 1. That the Coolies and other Asiatic Natives who do not at present reside and trade in the specified’ locations, but in conflict with the law, live and trade in a town or village or other prohibited area, shall be ordered by the Landdrost or Mining Commissioner, or, acting on their instructions by the Field Cornet, to proceed to live and trade in the specified locations before January 1, 1899, in terms of Law 3 of 1885.
- 2. The Landdrosts and the Mining Commissioners shall, however, prepare two lists of names of those Coolies or other Asiatic Natives who, for a considerable period, have traded in places other than the specified locations, and for whom it would consequently be difficult to remove their businesses within such a short period. On the one list shall be placed the names of Coolies or other Asiatic Natives to whom, in the opinion of the Landdrost or Mining Commissioner, at the utmost three months’ postponement may be given, and on the second the names of those who may receive six months’, thus respectively to April 1 and July 1 of 1899, in- which to comply with the law. The Coolies or other Asiatic Natives must themselves ask for such postponement and give reasons therefore.
- 3. That should application thereanent be made, in order to assist the Coolies and other Asiatic traders, the question of reserving a piece of ground in the location as a bazaar, or for a covered building with shops, will be favourably considered.
In connection with the above, it is further notified that those Asiatics who consider that they do not fall within the pale of Law 3, 1885, either by virtue of their having entered into an agreement before that date which has not yet expired, or through their having obtained transfer of their property, shall communicate with the Landdrost or Mining Commissioner before January I in order that their case may be laid before the Government.
- 31^ The Notice appeared originally in Dutch.
Telegram to "India" (5-12-1898)
Gandhiji, as its Johannesburg correspondent, sent the following telegram to India in connection with the question of Locations:
December 5, 1898
THE GOVERNMENT OF THE SOUTH AFRICAN REPUBLIC HAS PUBLISHED AND GIVEN NOTICE REQUIRING INDIANS TO RESIDE AND TRADE IN CERTAIN LOCATIONS ON AND AFTER JANUARY 1 NEXT THEY EARNESTLY HOPE THAT ADVANTAGE WILL BE TAKEN OF THE VISIT OF THE CAPE HIGH COMMISSIONER TO ENGLAND TO ADVANCE THEIR CAUSE. THE PRESENT UNCERTAINTY IS CAUSING ANXIETY.
Brief for Counsel's Opinion (22-12-1898)
Gandhiji’s approach to the legal issues involved in the operation of the Dealers’ Licenses Act is indicated by the following brief prepared by him.
December 22, 1898
BRIEF FOR COUNSEL’S OPINION UNDER ACT 18 OF 1897 TO AMEND THE LAW RELATING TO LICENSES TO WHOLESALE AND RETAIL DEALERS.
A Town Council issues secret or public instructions to the Licensing Officer appointed by it under the Act:
- 1. Not to grant licenses to Asiatics.
- 2. Not to grant licenses to certain persons.
- 3. Not to grant licenses to most of the Asiatic traders.
Could the Supreme Court be moved by an intending applicant to direct the Town Council to appoint another officer and not in any way to interfere with such Officer’s discretion?
A Town Council appoints one of its permanent officials, as for in stance, the Town Clerk, the Town Treasurer, the Chief Cashier. Could an intending applicant move the Supreme Court to direct the Town Council to appoint an absolutely independent person on the ground that the permanent officer would be so much under the influence of the Town Council that he could not be expected to give an unbiassed decision uninfluenced by the views of the Town Council, and on the ground thatthe intending applicant would practically be denied the right of approaching two separate tribunals—one original and the other appellate?
A Licensing Officer, under the Act, refuses to issue a license to a person on the ground that he is an Indian. Could the Supreme Court be moved to tell the Officer that the fact of a person being an Indian is no reason for a refusal, and that he should reconsider his decision subject to that direction?
If a Licensing officer arbitrarily refuses to issue licenses to all the Indians or a majority of them, can he be said to have used a discretion in either or both the cases?
A person having applied for and been refused a license to trade carries on his trade without a license. He is tried for contravention of Section 9 of the Act, and convicted. He pays the penalty but continues to trade. Is the trading after the conviction, but during the statutory year, a fresh offence?
Does a person trading without a license for so many days commit so many offences under the Act?
What would be the procedure for collecting the fine?
If the person convicted is bonded to another person and if the bondholder takes possession, will the penalty be a preferent charge against the goods so bonded? (Note: All penalties recovered under the Act in respect of a business within a Township are payable to the funds of such Township.)
Will it be competent for the Governor-in-Council to pass, under the last section of the Act, such rules as would control the discretion of the Licensing Officer, and make it practically obligatory on the Licensing Officer to issue licenses under certain conditions?
M. K. GANDHI
From the photostat of the handwritten original: S. N. 2904.