LITMIR.BIZ

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beating around the bush there! The law as that which “preserve[s] . . . inequality”? The voice of this apologist for capital seems more direct than that of his revolutionary adversary—Marx. It shows us, in this rare instance, how both sides of the class struggle may agree on what, in essence, the truth is, even in defense of opposing sides and differing interests.

      For prisoners, it isn’t necessary to philosophize about the law. The law is as real as steel and hard as brick. It is not a theory, nor an idea. It is grim reality. And while we are often told about the neutrality of the law, through discourses that claim equality, daily lives lived behind prison walls reveal quite another reality.

      This is especially so for those prisoners who are conversant with the language of Black history, a language for which the law holds little mystery or awe. Students of this language, a language of the dispossessed, recognize that millions of people were held in brutal bondage—legally. That there were, indeed, separate laws for Africans in a land that proclaimed its founding principle to be freedom. The law that “preserve[d] inequality” reigned then, and has since only changed its outer garb, and occasionally its public discourse. Yet where it counts, it remains essentially the same.

      The vicious, draconian Slave Codes that covered the South like a shroud reemerged in the aftermath of the U.S. Civil War in the form of Black Codes, which, as scholar-activist and former political prisoner Angela Y. Davis explains,

      . . . criminalized such behavior as vagrancy, breach of job contracts, absence from work, the possession of firearms, and insulting gestures or acts. . . . Replacing the Slave Codes of the previous era, the Black Codes simultaneously acknowledged and nullified black people’s new juridical status as U.S. citizens. The racialization of specific crimes meant that according to state law, there were crimes for which only black people could be “duly convicted.”⁵

      Given this specific history, it is no surprise that its legacy has bled into the present age, and who can deny that the law is, in essence, a repressive instrument of the rulers to keep the ruled in line?⁶ Jailhouse lawyers, especially when they successfully utilize the law as an instrument against their keepers, are upsetting this precarious social applecart. And as we have seen, there are serious costs to such an endeavor, even if it is a legal activity, since after 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

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