The finest statement of the duties of counsel was made by Thomas Erskine in his celebrated defence of Tom Paine when he was tried in 1792 for a seditious libel:
“I will forever, at all hazards, assert the dignity, independence, and integrity of the English Bar, without which impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any advocate can be permitted to say, that he will—or will not—stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the judge; nay, he assumes it before the hour of judgment, and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel.”
An authority on the ethics of advocacy, Lord Macmillan, recalls Lord Brougham's defence of Queen Caroline and criticises him for placing his “duty to his client so high as to surmount even his duty to his country” (in his lecture “The Ethics of Advocacy” read before the Royal Philosophical Society of Glasgow, February 1916, and published in a collection of his writings, Law, and Other Things, Cambridge University Press, Cambridge, 1937).
It was an unusual case, and Macmillan does not seem to appreciate that Brougham was calculatedly uttering a threat. He said: “I once before took-occasion to remind your Lordships, which was unnecessary needful to remind, ‘that an advocate, by the sacred duty which he owes to his client, knows in the discharge of that office but one person in the world—that client and none other. To save that client by all expedient means, to protect that client at all hazards and costs to all others, and among others to himself, is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them if need be to the wind, he must go on reckless of the consequences, if his fate it should unhappily be to involve his country in confusion for his client’s protection.”
But, as has been pointed out, Brougham, indeed, “meant it as a threat. He meant to tell the government, and the majority peers, and the King to boot, that if all else failed he would present to the country such a case against the King as would probably cause a rebellion. The Lords understood the intimation ...” (R. Stony Deans, The Trial of Five Queens, second edition, Methuen, London, 1910, page 365).
The King wanted the Queen to be punished on a charge of adultery.
It was a threat to servile judges. Judicial servility towards the state can only be countered by an assertive Bar. Sixty years ago, K.M. Munshi, a lawyer of distinction, publicly expressed his disgust at “frowning judges and fawning lawyers”.
In 1958, the 14th Law Commission headed by M.C. Setalvad described as an “‘Advocate Judge’ one who drapes the mantle of a judge and assumes the roles of an advocate”.
We live in an era of judicial outbursts the likes of which have no parallel in any other apex court in a democracy. The Supreme Court of the United States would not have acquired or suffered judges like Arun Mishra if an assertive Bar had checked him in his early stages.
One Chief Justice of India, J.S. Verma, prided himself on his quick temper in a press interview.
The decline in the bench is owing to the decline in the Bar, which is obliged to check errant judges.
This was not always so. When the Chief Justice of the Allahabad High Court innocuously remarked to Sir Tej Bahadur Sapru “That is not the law as I know it”, Sir Tej retorted: “I have no presumption that Your Lordship know the law correctly.”
In the Lahore High Court, K.M. Munshi once put an overbearing Justice M. Munir in his proper place.
C.R. Das, offended by the judge’s remark while arguing a habeas corpus before Sir Henry Drake-Brockman, Judicial Commissioner of the Central Provinces at Nagpur in 1918, said, ”Your Honour should not try this case at all.” He won his case. Small men did not disgrace the bench in those days.
One wonders how many of the present generation of India’s lawyers know of Eardley Norton (1852 – 1931.) This English barrister practised all his life at the High Courts of Madras and Calcutta and was one of the leading members of the Indian National Congress and a lifelong champion of the civil liberties of Indians. He wrote felicitous prose. A ready wit, he was a master of invective, sparing none, not even the Viceroy.
In Suresh Balakrishnan, a barrister who practises at the Madras High Court, Norton has a biographer par excellence. The two volumes are a product of stupendous research. The writer provides footnotes where necessary and writes good prose. The object of the work holds lessons for the lawyers of today who are not likely to learn. Two of the most prized qualities in an advocate at the Bar are integrity and fearlessness. At a time when unbridled power holds sway in India, Norton’s words, written a century ago in 1921, are strikingly relevant.
“What authority grants, it grants with reluctance and reservation, and each presence is a trespass upon its power, each advance a limitation of its privileges. Authority does not give because it likes, but because it must. Drawn to the edge of an abyss it throws a temporary pontoon across the space rather than bridge it with a connection which shall laugh at the ages. So it has been, so it ever will be.”
The thought and style reveal a person whose mastery of the language matched his insights.
The author writes in his preface, “I have often wondered why Eardley Norton (1852 - 1931) escaped the biographer. In his time, he was popularly regarded as the foremost among advocates in India. Many were the cause celebre and sensational cases in which he had appeared. He was also one of the leading members of the Indian National Congress in its earliest phase.
“If those distinctions are not enticement enough for a potential biographer, Norton was, at different times, Coroner of Madras, Madras Municipal Commissioner, member of the Madras Legislative Council, and member of the Central Legislative Assembly. He was also a journalist, poet, freemason and a gifted raconteur. He also took part in a few commercial ventures and had briefly served in the Madras artillery volunteers. The numerous cases he fought included a few in which he was himself a party. In a life densely crowded with eventful activities, there was no dearth of remarkable episodes. There also were setbacks in his life; his incomparable reputation was not free of blemishes. The impact of a scandalous affair was devastating.”
This is a work of history and biography. The copious quotes and anecdotes enrich the book.
Norton’s father, John Bruce Norton, was a barrister and journalist. Both were free of any feeling of racial superiority. The father became Advocate General. The father was erudite; not so, the son. But the son was one of the greatest advocates of all time. Eardley was born in Madras.
The work is neatly divided in two volumes. The first traces the story from the subject’s ancestry until his farewell to India and the last years in England. The second volume has memories of Norton’s contemporaries and details of famous cases.
Norton joined the Congress at its third session in Madras in 1887, over which Badruddin Tyabji presided. He resigned in 1895. The reasons he gave were none too convincing.
An unfortunate event affected his political career, social standing and, to some extent, his practice. It was the scandal of his divorce on charges of adultery. Divorce was granted to both, the husband and the wronged wife. Norton remarried in 1897. He moved from Madras to Calcutta in 1906. Fame and fortune awaited him there.
He was retained as a prosecutor in the Alipore Bomb case (1908) at a fat fee of Rs.1,000 per day. How much will that be worth in today’s rupees?
Aurobindo’s trial
C.R. Das brilliantly defended Aurobindo Ghose and acquired his acquittal. His brother, Barindra Kumar, was convicted and sent to the Andamans where he conducted himself courageously, unlike Veer Savarkar’s cowardly and cringing behaviour throughout.
The most damning evidence against Aurobindo Ghose was the famous “sweets” letter which his brother Barindra wrote to him after the Congress split at the Surat Session. It ran as follows:
B engal Camp, Near Ajit’s
2 7th December 1907
Dear Brother
Now is the time, please try and make them meet for our conference. We must have Sweets all over India ready fot emergencies [ sic ]. I wait here for your answer.
Y ours affectionately.
S d. Barindrakumar Ghose.
The prosecution said that “sweets” meant bombs. The defence said that the letter was a forgery. Both the brothers were present at the Surat Congress when it broke up amidst much disorder due to a quarrel between the extremists led by Bal Gangadhar Tilak and the Moderates led by Surendranath Banerjea over the election of Sir Rash Behari Ghose as president of the Congress.
This letter was alleged to have been written by Barindra to Aurobindo at Surat immediately after the Congress broke up. The court upheld Das’ plea that it was a forgery.
There is only one detailed account of the trial, but it is inadequate (Bajaj Krishnan Bose; The Alipore BombTrial; Butterworth & Co., London, 1922). Bose was one of the counsel for the defence. Norton wrote a foreword in which he revealed astonishing truths.
In the committing Magistrate’s Court, Counsel for the Crown received his first letter threatening to blow him out of existence. “When the court rose I went up to the dock and asked Barendra if he approved this promise for my extermination. He courteously informed me that there was no personal objection to myself but that I was an obstruction to justice from the point of view of the accused and that much as he would regret my disappearance, he could not forbid it. Then thrusting aside my insignificance, for after all, as he reminded me, I was but ‘small fry’, a mere parasite, he ventured to predict that those behind the scenes would fly at higher game, a Commander-in-Chief and a Viceroy. I pointedly objected that Britons would no more consent to being intimidated than they would to being slaves, and that there was an indefinite number of noblemen to whom the position of a Viceroy and his emoluments would more than overcome the dread of assassination. Barendra assured me that the supply would in time prove insufficient to meet the demand. He spoke without heat, not as one directing murder but as a philosophic politician in mental touch and sympathy with the view of his countrymen….
“However misguided Barendra was, he was obviously honest and chivalrous. His holograph confession sought to take the whole blame to himself and to exonerate his colleagues. He declined to apply, though a European British subject by the accident of his birth, for a trial by jury before the High Court, and though he declined to make any admissions, he instructed his counsel R.C. Banerjee not to deny the writing or signature to the famous “sweets” letter on which his brother Arabindo was acquitted—by mistake.”
At page 304 of the book, however, Barindra’s counsel, R.C. Banerjee, asserted that he had denied the genuineness of the letter.
Not l ong after his trial, Norton led C.R. Das for the defence of Nirmal Kanta Roy. There were counsel of high eminence in India in those days. But none quite commanded the practice which Norton did. He was always on the move all over India. He appeared in a notable case in Ceylon (as Sri Lanka was then called.)
His entry into Punjab in the wake of the Jallianwala Bagh massacre was banned by the government. The author has given a fair account of the notable cases.
Elegant invective
The piece de resistance is his Open Letter to the Viceroy, Lord Dufferin. It was written in January 1889, from 4, Theatre Road, Calcutta, in reply to the Viceroy’s attack on the Congress. Norton published it as a pamphlet. The cover boldly proclaimed the auspices under which it was published — the Indian National Congress. The language was scathing; the scorn was withering.
As a piece of elegant invective, Norton’s Letter had hardly any parallels in India’s political discourse.
The following passages give the flavour of the whole:
“For four years you have drawn from the people of India a splendid salary: and your last official act is to condemn Indian aspiration and sneer at Indian reform. Many will regard your benevolence as spurious, and trace to policy that should be due to conviction. I leave you, my Lord, to settle accounts with your own conscience. But the people of India must be pardoned if they cite you as another instance of the facile plasticity of official virtue. You stand charged, my Lord, with misrepresentation of the Congress views. I prefer to leave your conduct to the estimate of the civilised world and to that Supreme Being whose name you are yourself so ready to invoke.”
Norton sharply asked: “Has your Lordship ever spoken frankly to the Maharaja of Durbhunga, who is not a whit behind any Indian prince in patriotism, intelligence, and generosity; to Sir Madhava Rao, distinguished both in your Lordship’s sense and mine; to Mr. Badruddin Tyabji; to Mr. Telang; to Mr V.N. Mandlik; to Mr R.M. Sayani; to Mr. Pherozeshah Mehta; to Mr. Chandravakur, to Mr. Dinshaw E. Watcha; to Mr. Rash Behary Ghosc; to Mr. Manmohan Ghosh; to Mr. Bonnerjee; to Mr. Ranade; to Mr. Naorojee; to Mr. Ramasamy Moodelly and others far too numerous to mention, distinguished in my sense and not in your Lordship’s? With tomes of information, all uncut, ready to your hand, your Lordship prefers the limited circle of those who would not deserve your Lordship’s sympathy and support if they were not primed with views and facts to meet your Lordship’s wants.
“Your Lordship was eloquent over the misdirected energies of the Congress whose admitted abilities you would prefer to see engaged upon social reform. Undoubtedly your prerogatives would be longer lived if the people would bestow upon questions of widow re-marriage and polluted drinking water that consideration which they are bestowing by preference upon the autocracy of government and the scandalous waste of public money. Your Lordship would smile with ceaseless benignity upon a nation engaged in vilifying itself and not the authorities ... But is there no filth amid vast proportions of the population of English cities? Yet is political reform made to stand aside in the old country until a perfected education has stamped out vice? Is the extension of the franchise deferred until the criminal population shall elect to attend church on Sundays in their best attire?
“The old muscularity of your mind has yielded to the fumes of official incense; you are bordering on the belief, formulated, so succinctly by a member of the Civil Service here, that ‘God made the white man and the Devil made the Black’. You are effeminate in your distrust of the people ...
“You have made your final bow, my Lord upon the great stage of the Indian Empire.... We cannot conscientiously avow that your departure is premature. You have succumbed to the flatteries of your office. In Rome or in London may be restored to you the lost vigour of your political manhood. Here it has parted company from you.”
The style and diction bear too striking a resemblance for anyone to miss the genius on whose writings Norton’s Letter was modelled—the celebrated “Letters of Junius”. He was none other than the scourge of Warren Hastings in Calcutta—Philip Francis.
I should like to share with the reader Norton’s Introduction (see box on pages 72-73) to the volume entitled Laws Affecting the Rights andLiberties of the Indian People compiled by Akshaya K. Ghose, published by Mohan Brothers, 31, College Street Market, Calcutta, and priced at Rs.7, 8 annas. It has texts of the laws from 1780 to 1919.
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