Jailhouse Lawyers. Mumia Abu-Jamal

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СКАЧАТЬ all there is a formal law and an informal law. There is the written law and entirely another law that is practiced.

      This schizophrenia lies at the very core of U.S. law. It was recognized over a century ago when a French researcher named Alexis de Tocqueville visited America to study its institutions and cultural life. In his classic work of 1835, Democracy in America, he recounted his curious conversation with a Pennsylvanian who boasted of American freedoms:

      I said one day to an inhabitant of Pennsylvania, “Be so good as to explain to me how it happens that in a state founded by Quakers, and celebrated for its toleration, free blacks are not allowed to exercise civil rights. They pay taxes: is it not fair that they should vote?”

      “You insult us,” replied my informant, “if you imagine that our legislators could have committed so gross an act of injustice and intolerance.”

      “What?! Then the blacks possess the right of voting in this country?”

      “Without the smallest doubt.”

      “How comes it, then, that at the polling-booth this morning I did not perceive a single [N]egro in the whole meeting?”

      “This is not the fault of the law. The [N]egroes have an undisputed right of voting, but they voluntarily abstain from making their appearance.”

      “A very pretty piece of modesty on their parts,” rejoined I.

      “Why, the truth is that they are not disinclined to vote, but they are afraid of being mistreated: in this country the law is sometimes unable to maintain its authority without the support of the majority. But in this case the majority entertains very strong prejudices against the blacks, and the magistrates are unable to protect them in the exercise of their legal privileges.”

      “What?! Then the majority claims the right not only of making the laws, but of breaking the laws it has made?”⁷

      According to de Tocqueville’s local informant, it was indeed lawful for free Blacks to vote in early-nineteenth-century Pennsylvania, though without the law’s protection. It is further telling of the capricious nature of the law that two years after the publication of his work, Pennsylvania stripped this very right from a “man of colour” during a general statewide election.

      William Fogg, described in the law books as a “free Negro or mulatto,” filed suit against county officials to seek a ruling on his right to vote, since he met all of the state’s voting qualifications. In Luzerne County’s Common Pleas Court, the presiding judge gave the jury instructions that appeared to concede the Black man’s main claims, and ordered them to issue a rare, directed verdict:

      It is finally urged that a free [N]egro or mulatto is not a citizen, within the meaning of the constitution and laws of the United States and of the State of Pennsylvania, and therefore is not entitled to the right of suffrage. This the court regards as the most important point in the cause, and the question, as it is avowed on the part of the plaintiff, which this suit was brought to settle.

      We know of no expression in the constitution or laws of the United States, nor in the constitution or laws of the state of Pennsylvania, which can legally be construed to prohibit free [N]egroes and mulattoes, who are otherwise qualified, from exercising the rights of an elector. The preamble to the act for the gradual abolition of slavery, passed on the 1st of March, 1790, breathes a spirit of piety and patriotism, and fully indicates an intention in the legislature to make the man of color a freeman.

      As there is no dispute between the parties in relation to the facts of this case, and as the opinion of the court upon the points [of] law is decidedly with the plaintiff, the verdict of the jury must be in his favor.⁸

      Attorneys for the county officials filed a writ of error in the Pennsylvania Supreme Court, which granted the writ and reversed the judgment of the lower court. The Byzantine processes by which it came to its decision and the basis upon which the court came to its finding must be seen to be believed.

      Pennsylvania’s Chief Justice John Bannister Gibson wrote the opinion for the court:

      About the year 1795, as I have it from James Gibson, Esq., of the Philadelphia bar, the very point before us was ruled, by the high court of errors and appeals, against the right of [N]egro suffrage. Mr. Gibson declined an invitation to be concerned in the argument, and therefore, has no memorandum of the cause to direct us to the record. I have had the office search for it; but the papers had fallen into such disorder as to preclude a hope of its discovery. Most of them were imperfect, and many were lost or misplaced. But Mr. Gibson’s remembrance of the decision is perfect, and entitled to full confidence. That the case was not reported, is probably owing to the fact that the judges gave no reasons; and the omission is the more to be regretted, as a report of it would have put the question at rest, and prevented much unpleasant excitement. Still the judgment is not the less authoritative as a precedent. Standing as the court of last resort, that tribunal bore the same relation to this court, that the Supreme Court does to the Common Pleas; and as its authority could not be questioned then, it cannot be questioned now.⁹

      In this reading of the “law,” a court transforms imperfect memory into legal precedent, and missing authority into perfect reason. The court’s opinion, based on faulty memory, no records, a misreading of the state constitution, and a repealed statute, unanimously determined that “it is difficult to discover how the word freeman . . . could have been meant to comprehend a colored race.”¹⁰

      The Pennsylvania Supreme Court, interpreting the state constitution’s assertion (in art. I, §3) that “in elections by the citizens, every FREEMAN of the age of twenty-one years, having resided in the state two years before the election, and having within that time paid a state county tax” shall thus be “eligible to vote,” launched into an extended discussion of the meaning of “freeman” and denied that “the word freeman . . . could have been meant to comprehend a colored race.”

      The case was tried a generation before the ignoble Dred Scott decision—made by a U.S. Supreme Court composed of a majority of slaveholders—that had launched a war, and it came down to the same, narrow, uncivil ground: “[N]o colored race was a party to our social compact.”¹¹ In the 1837 case Hobbs v. Fogg, Pennsylvania law made it illegal for Blacks to vote, even if one met all of the qualifications of taxes and property under the state’s constitution.¹²

      Essentially, the state’s highest court made an exception to the claim that had sparked a revolution against England, “taxation without representation,” for tax-paying Black Pennsylvanians continued to pay taxes, but by judicial edict they could not vote for their political representatives.

      Nearly a century and a half after Hobbs, a Black revolutionary named John Africa would strike a similar chord when writing of late-twentieth-century Philadelphia that “the law was a weapon for the rich and a whippin’ for the poor.”¹³

      If this was law, what of the outlaw?

      For jailhouse lawyers, the law could sometimes be wielded as a weapon or a tool.

      It took years of long, hard legal struggles to secure basic constitutional protections for religious practices, many of which were spearheaded in the 1960s and 1970s by Black Muslims, Native American activists, and Buddhists. When members of the Nation of Islam tried to practice their faith like other groups that were seen as more legitimate, prison administrators didn’t hesitate to deny them religious practice rights. This of course forced courts to address the question of whether such a faith was a religion, and if so, whether states were required to provide rights of religious expression. One of the earlier СКАЧАТЬ