Jim Crow Constitution Stifled Virginia's Black Lawyers

Hylton: "Black lawyers left very little record of themselves," he said. "They had modest careers."

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.