Abstract

Excerpted From: John G. Browning, To Fight the Battle, First You Need Warriors: Edward Garrison Draper, Everett Waring, and the Quest for Maryland's First Black Lawyer, 53 University of Baltimore Law Forum 1 (Fall, 2022) (403 Footnotes) (Full Document)

As she reflected upon her historic confirmation as the first Black woman on the nation's highest court, Justice Ketanji Brown Jackson acknowledged that she stood “on the shoulders” of many “true pathbreakers.” Undoubtedly, Justice Jackson had in mind earlier Black U.S. Supreme Court advocates turned members of the federal judiciary such as Constance Baker Motley (the first Black female federal judge) and Thurgood Marshall (the first Black U.S. Supreme Court justice). Yet, she could easily have been referring as well to the earlier generations of Black lawyers whose trailblazing efforts paved the way for lawyers like Motley, Marshall, and Charles Hamilton Houston. While the history of the first Black lawyers in America is a chronicle of broken barriers and adversities overcome, the history of Black lawyers in Maryland--the state that produced Thurgood Marshall and Charles Hamilton Houston--is particularly poignant. As this article will discuss, the effort to integrate Maryland's bar took place decades after the Civil War--well past the point that other Southern states had admitted Black lawyers into the legal profession. Maryland's restrictions led to historic injustices, including the denial of a well-qualified Ivy League graduate, Edward Garrison Draper. But the same discriminatory laws galvanized a civil rights movement in Baltimore, one that predated the National Association for the Advancement of Colored People (“NAACP”) and launched the career of the first Black person admitted to the Maryland State Bar Association, Everett J. Waring.

In sharing the story of the campaign to break the race barrier of the Maryland bar, this article aims to correct the egregious historical neglect of this subject. The history of lawyers generally has been too long regarded as “a white man's history,” while Black lawyers' “names and contributions remained unknown.” The Reconstruction Era itself was long neglected by generations of historians who regarded it as an illegitimate period “presided over by unscrupulous ‘carpetbaggers' from the North, unprincipled Southern white ‘scalawags,’ and ignorant freedmen.” Despite being a largely unknown and overlooked chapter in American legal history, the quest to open the doors of the Maryland bar to BlackAmericans is a chapter with significant consequences for the civil rights movement and one that yields lessons that resonate with today's racial justice movement. At a time when the struggle for diversity, equity, and inclusiveness in the legal profession continues--the percentage of Black attorneys actually regressed between 2011 and 2021--it remains more important than ever to appreciate the significance of Black voices in the profession and what it took for those voices to be heard. Thurgood Marshall, himself denied entry to the University of Maryland School of Law, recognized that later civil rights victories would not be achieved without first dismantling racial barriers to legal education and the profession. Cases like University of Maryland v. Murray (1935), along with U.S. Supreme Court cases like Missouri ex rel. Gaines v. Canada (1938), Sipuel v. Board of Regents of the University of Oklahoma (1948), and Sweatt v. Painter (1950) made later civil rights milestones like Brown v. Board of Education (1954) possible. The lessons learned from the decades-long effort to integrate the Maryland bar were clear: to fight the battle for racial justice, you first need warriors.

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His historic defense ensured Everett J. Waring prominence in Baltimore's Black community. The fact that a Black lawyer had argued before the U.S. Supreme Court brought him a steady stream of clients, both Black and white. Financial success led to Waring becoming active in real estate, and at one point, he owned as many as forty properties. He was also a president and co-founder of the Lexington Savings Bank, the first bank in Maryland started and run by BlackAmericans. But on March 8, 1897, the Lexington Savings Bank went into receivership. Waring was charged with embezzlement, and the man who was once one of Baltimore's leading citizens had to seek a change of venue to Howard County, believing he would not receive a fair trial in the city. Although he was acquitted and although evidence showed Waring had tried to use his own personal funds to save the bank, Waring's fall from grace was complete. He moved back to Ohio, where he died on September 2, 1914.

Everett J. Waring remains, sadly, a “forgotten first” despite his historic achievement. While his portrait hangs in Baltimore's Clarence Mitchell Courthouse, and while a minority bar association in Maryland bears his name, few even in the legal profession are aware of his significance. In a former slave state that clung to a “whites-only” legal profession for more than 20 years after the Civil War, and with the support of Black community organizing that helped pave the way for groups like the NAACP, Waring broke through the color barrier and then immediately set to work challenging discriminatory laws. And in only his fifth year as a lawyer, he found himself challenging U.S. sovereignty over a far-flung island in an effort to spare the lives of Black men who had endured slavery by another name. As if being the first Black lawyer to argue before the U.S. Supreme Court wasn't intimidating enough, Waring had to make that argument before a Court that included five of the justices who would decide Plessy v. Ferguson six years later.

While largely overlooked by scholars, Waring's historical significance is undeniable. His admission ushered in the beginning of an era of distinguished Black civil rights lawyers in Maryland, ranging from William Ashbie Hawkins to Charles Hamilton Houston to Thurgood Marshall. Virtually anywhere that Black lawyers practiced, they struggled to earn a living: after all, white clients generally didn't hire them, and most Black clients could not afford to pay substantial fees. Recognizing this, early Black lawyers devoted significant time and energy to building up the Black community's economic infrastructure and mobilizing the political clout that would pave the way for future growth and opportunity. In Maryland, this translated to getting Harry S. Cummings elected in 1890 as the first Black person to serve on the Baltimore City Council. Although he was defeated in his reelection bid in 1892, Cummings worked tirelessly for Black constituents and managed to integrate the Maryland Institute of Art and Design by appointing its first Black student. In 1890, Cummings--along with Joseph Seldon Davis, future lawyer William Ashbie Hawkins, and other businessmen--founded the Economics Association, a support network for Black-owned businesses.

However, the fight for Black representation in Maryland's legal profession was far from over. With vocal cries for segregation reaching a fever pitch in 1890, the University of Maryland School of Law expelled its only two Black students, William Ashbie Hawkins and James L. Dozier. Both finished their legal education at Howard. The University of Maryland School of Law's doors would remain closed to Black students for nearly half a century, until Thurgood Marshall and Charles Hamilton Houston won Donald Murray's suit seeking admission to the school.

Yet more Black lawyers continued to walk through the doors opened by Everett Waring and the Brotherhood of Liberty. William Ashbie Hawkins, admitted in 1892, was present at the Niagara Conference that led to the founding of the NAACP, and he went on to become Maryland's leading civil rights lawyer for decades--challenging segregation in housing and transportation as well as attempts at disenfranchising Black voters. By 1935, the end of the first half of the century of Black admission to the Maryland bar, there were 32 Black lawyers in Baltimore alone. As one scholar noted, “[m]easured by the forces arrayed against them, the achievements of the black lawyers in Maryland in these first four decades were substantial,” and black lawyers' “economic survival was itself a triumph.”

Acknowledgment for the pioneering Black lawyers in Maryland's history is long overdue. One positive step toward restorative justice would be the posthumous bar admission of Edward Garrison Draper. In the same year the United States Supreme Court proclaimed Black people “beings of an inferior order” who could not be considered citizens, Draper displayed such a command of the law that a White judge found him “qualified in all respects” and worthy of bar admission but for the color of his skin. Recognizing Draper--a living, breathing repudiation of the racist beliefs manifested in Chief Justice Taney's opinion in Dred Scott v. Sandford-- with posthumous admission to the Maryland bar would be more than a symbolic gesture. It would right a historic wrong and racial injustice, while simultaneously serving as homage to the Black legal trailblazers on whose shoulders we stand.

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John G. Browning is a former Justice on Texas' Fifth Court of Appeals, and he now serves as the Distinguished Jurist in Residence and Professor of Law at Faulkner University's Thomas Goode Jones School of Law.