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| Hylton: “Black lawyers left very little record
of themselves,” he said. “They had modest careers.” |
Posted
October 13, 2003
Jim Crow Constitution Stifled Virginia's
Black Lawyers
The number of black lawyers in Virginia rose
steadily during Reconstruction, when there were virtually no criteria
for admission to the bar, but stagnated once the state passed its
Jim Crow constitution in 1902, visiting law professor J.
Gordon Hylton told a small group on hand Oct. 13 for a student/faculty
workshop sponsored by the Center
for the Study of Race and Law.
Hylton, a 1974 graduate of the Law School
who also earned an M.A. in history at the University, said there
is a gap in American legal history in what is known about black
lawyers in the South between the end of the Civil War and the
beginning of the anti-segregation efforts of Charles Huston and
Thurgood Marshall in the 1930s. In the late 1800s, three quarters
of the black lawyers in the United States were in the former
Confederate states and most of those were in Virginia, which
he is taking as a case study. “Black lawyers
left very little record of themselves,” he said. “They had modest
careers.”
Researching United States census data for
Virginia in the decades following the Civil War, Hylton found
one black lawyer in Virginia in 1870, 10 by 1880 and 53 in 1900.
During that time African-Americans accounted for 42 percent of
the population. “But how many would
you expect?” he asked. “It would have been surprising for ex-slaves
to turn around and become lawyers.” By the 1920s, the “center of
the African-American bar shifted to Chicago,” said Hylton, who
teaches law at Marquette University Law School.
It's not clear who was considered a lawyer at the time, he said.
The census considered anyone who provided legal services to be
a lawyer, thus including notaries, who could also handle real estate
transfers, and didn't limit the term to those who represented others
in court.
Admission to the bar followed an oral exam
by a circuit court or supreme court judge. Technically, two judges'
signatures were needed on the license but the second judge usually
signed pro forma as a courtesy to his colleague. There was no
state bar association at the time, no educational requirements—not even a high school
diploma, and no written bar exam. “You just had to find the circuit
court judge who would sign your license,” Hylton summed up. “It's
impossible to know how the oral exams worked. There is no literary
evidence.” In one case, a former Confederate general signed for
a black applicant. Hylton said many of the first black lawyers
were of mixed ancestry and their connections to whites were important
in getting into and succeeding in the profession.
Another avenue was reciprocity arrangements with
other states which transferred admission to their bar to Virginia.
Howard University in Washington, D.C., provided the nearest legal
training for blacks, and the first documented black lawyer in Virginia,
Withall Wynn, came from Howard.
The numbers of black lawyers were suppressed
by both cultural and economic factors. The legal culture in Virginia “was
not friendly to black lawyers, although it accepted their legitimacy,” Hylton
said. Maryland and California, meanwhile, had laws forbidding
blacks from being lawyers. “It's highly unlikely a white client
would go to a black lawyer—even though the obituary of one Tidewater
lawyer said he was so good even white people went to him—but successful
blacks wanted white lawyers as a sign of status.”
Another discouragement to blacks was the long deflationary economy
of the end of the century. Poor blacks tended to think that they
shouldn't have to pay for legal services; black lawyers should
simply give their services out of racial solidarity. Black lawyers
often gave up the profession, to become teachers or businessmen
for example, in order to make a living.
Virginia instituted a written bar exam
in 1896, following Wisconsin 's lead, (the first to establish
an exam in 1865), and thereby created law schools, Hylton said.
He called the suggestion that accusations about incompetent black
lawyers caused the change were probably “just a rhetorical device for bar exam proponents. The
bar exam mainly kept out whites, but it also forced blacks to go
to law school and no Virginia law schools—meaning U.Va., Washington
and Lee, or Richmond—would accept blacks.” When two Howard graduates
passed the Virginia exam in 1900 it was cited as proof that the
exam was not a difficult barrier.
The more notable black lawyers Hylton
cited included James Hayes, a “firebrand” from
Richmond who contested Virginia 's 1902 constitution—which disenfranchised
blacks and led to the enactment of Jim Crow laws—all the way to
the U.S. Supreme Court, where his arguments against its segregationist
character were dismissed as a matter for the people of Virginia
to decide. A great deal of Hylton's information derives from the
autobiography of another prominent black lawyer, Thomas Calhoun
Walker.
• Reported by M. Marshall