News Post

Getting your Trinity Audio player ready...

By John G. Browning

The history of black attorneys in Alabama is a rich one, particularly their contributions during the civil rights struggle. But those attorneys, just like the black legal pioneers in recent decades who rose to seats on the Alabama Supreme Court, the federal bench, and at the helm of the Alabama Bar, stood on the shoulders of giants. Yet, despite their historical significance, the stories of this state’s trailblazing black lawyers have gone largely untold. Even purportedly comprehensive histories of the legal profession in Alabama have overlooked these attorneys, who overcame incredible adversity just to become lawyers and whose lives were endangered simply by their choice of occupation. This article hopes to fill this void in scholarship by shining a light on this chapter in history.

Black attorney candidates encountered difficulties entering the legal profession, even though standards were notoriously low. With formal legal education a rarity through much of the 19^th century, most aspiring lawyers (white or black) “read the law” in the offices of an established member of the bar. Beginning in 1819, lawyers wishing to practice before the state supreme court were required to stand for an unspecified examination, and just two years later, the legislature enacted a law that “any two” circuit judges could license a candidate to practice in the circuit or county courts.[1] By 1852, the Alabama Code allowed any circuit or chancery judge to issue licenses to practice in trial courts.[2] This code also specified that attorney candidates must be white men, aged 21 years or older, who would adhere to certain ethical obligations to be honest in court, be courteous to opponents, and be friendly to the “cause of the defenseless or oppressed.”[3] Practically speaking, admission requirements remained what one scholar has described as “indulgent,” yet as late as 1867, the Alabama Code still limited eligibility to “[a]ny white male.”[4] In 1879, a report given to the fledgling Alabama State Bar by its Standing Committee on Legal Education and Admission to the Bar expressed concern that the state’s trial judges historically licensed a number of “persons so little prepared for the discharge of professional duties.”[5]

Answering the question of who the state’s first black lawyer was requires untangling some of history’s mysterious threads. One possible candidate is John Carraway, whose life story seems fashioned by a Hollywood screenwriter. Born enslaved in New Bern, North Carolina to white planter Charles Carraway and an unidentified slave mother, Carraway was purportedly freed under the terms of his father’s will, but freed himself in the early 1850s in fear of the manumission being challenged by white relatives.[6] Escaping to Brooklyn, New York, Carraway worked as a tailor, then as a seaman, and ultimately as an equal rights activist. After the Civil War broke out, Carraway volunteered for the Fifty-Fourth Massachusetts Regiment (later immortalized in the movie “Glory”). While his service was brief due to health issues, Carraway was credited with writing a popular song inspired by his service, “Colored Volunteers,” which told black soldiers to “never mind the past, we’ve had a hard road to travel but our time is come at last.”[7]

With the war’s end, Carraway moved to Mobile to live with his mother, and he became the assistant editor of a newspaper for the black community, the Mobile Nationalist. He also became active in politics, serving as a delegate to the Alabama Constitutional Convention in 1867,[8] as a Mobile alderman in 1868, and as a member of the Alabama House during the 1868 and 1869–1970 sessions.[9] But early in 1870, word had begun to spread that Carraway had added a new title – attorney. As an article in the Chicago Legal News described it, Carraway was admitted before Judge James Q. Smith in the Circuit Court of Montgomery County, on the motion of county solicitor John G. Stokes.[10] The paper called it “the first instance of the admission of a person of color to the Bar of Alabama,” noting that while the attorney admission statute still excluded anyone who wasn’t a white male, Judge Smith had declared that provision to be in conflict with federal law and expressed “astonishment that such a law should be permitted to remain unrepealed until the present time.”[11] Calling Carraway “one of the most intelligent colored men in Alabama,” the journal predicted for him “a career of usefulness as a member of the legal profession.”[12]

But others cast doubt on Carraway’s admission. A Montgomery attorney named Hamilton McIntyre published a letter to the editor in the Montgomery Advertiser disputing Carraway’s admission, citing his “total ignorance of the law and the English language.”[13] Carraway himself didn’t help matters in a rambling, defensive letter of his own to the Advertiser, claiming to have been ill when the original examination was scheduled and that the entire examining committee was not present. Nevertheless, Carraway maintained that Judge Smith “was satisfied in regards to my qualifications and character,” and that he intended, upon beginning the practice of law, “to let my clients, and the public, judge whether I am totally incompetent or not.”[14]

Unfortunately, just as nothing is known about Carraway’s legal education, nothing is known about whether his prediction for his practice came true, since Carraway did not live much longer. On April 20, 1871, the Montgomery Advertiser reprinted an announcement in the Mobile Register of Carraway’s death. So, was Carraway Alabama’s first black lawyer? It seems doubtful. But a far more compelling case can be made for Moses Wensleydale Moore, who was admitted in Mobile in 1871.

Moore was born on February 15, 1841 in Demerara, British Guiana (today the nation of Guyana) and so was a free man and citizen of the United Kingdom.[15] He was evidently educated, since he listed his profession as schoolteacher when he sailed from London to the United States in 1867, arriving at the Port of New York on October 19. While his activities for the first 16 months in the United States are a mystery, we do know that Moore was among the first students at Howard University School of Law when it opened its doors in early 1869. The university itself was founded only two years earlier to provide educational opportunities for blacks. In 1868, Howard hired John Mercer Langston (one of the first black lawyers in the country) as its inaugural law dean.[16] Langston designed a two-year curriculum that was as rigorous as any other law school, with law students assigned treatises like Blackstone’s Commentaries and Kent’s Commentaries. All instructors used the lecture system, and students were also required to participate in moot court and complete a series of forensic exercises and a dissertation prior to graduation. Because all six students in the first class worked full- time, classes were held during the evening at the home and offices of faculty (the school didn’t have classrooms right away at Howard).[17]

Moore and his fellow law students learned important lessons, not just about doctrine but also about the hostile environment they would face as pioneering black lawyers. One professor, Albert Gallatin Riddle, cautioned the students to avoid small towns, to be prepared to hang out their own shingles, and to anticipate hostile juries. Most importantly, he admonished Moore and his fellow students that they “must not only equal the average white competitor; [they] must surpass them . . . [for the] world has already decided that a colored man who is no better than a white man is nobody at all.”[18] It was a reminder echoed by the words of one black newspaper on the occasion of Howard Law School’s first graduating class; young men like Moore would “go forth into the world . . . to give to the false and hate-inspired charge of the black man’s natural inferiority a living, forcible, and effective denial.”[19]

Like the rest of his classmates, Moore was first admitted to the District of Columbia bar after graduating in early 1871. He then made his way to Mobile, where he presented himself for examination for admission to the Alabama bar. Circuit Judge John Elliott asked Lyman Gibbons, a retired justice of the Alabama Supreme Court, to test the young Howard graduate. As the Mobile Daily Register reported:

. . . [the] examination was conducted in open court. A great deal of interest was manifested on the part of the bar . . . from the fact of the applicant’s color. He passed a very satisfactory examination, and an order was made by the Court admitting him to the bar. This is the first negro admitted to the bar in Mobile.[20]

Four months later, Moses Moore was living in Selma. He sought admission to practice before the Alabama Supreme Court, and as the minutes of the supreme court reflect, Moore was admitted on January 4, 1872. Moore’s sponsor was Patrick Ragland, then serving as the court’s marshal and librarian. The court’s record noted that Moore was “of lawful age and of good moral character” and that he had been admitted to practice law in the Supreme Court of the District of Columbia and pronounced him fit to be “licensed as an attorney of law and solicitor in Chancery in all the courts of law and equity in this state . . .”[21] The Montgomery Daily State Journal welcomed Moore’s admission as initiating “an age of progress, [for] ten years ago who would have believed that a Negro was capable of learning the law sufficiently to practice in the Supreme Court.”[22]

Little is known of Moore’s practice in Alabama. What the historical record does reveal is that by June 12, 1879, Moses Moore was married and living in Lowndes County, Mississippi when government records indicate that he applied for a passport. And he evidently made use of that passport; according to the New York Globe, as of 1883, Moore was working in Paris, France as an English professor at the Academe Polytechnique. What could compel Moses Moore to leave his unique and hard-won status as Alabama’s first (and, for a time, only) black lawyer? One can only speculate, although racially-motivated hostility is a likely reason. As one historian has observed, “Assaults against black lawyers were prevalent in Alabama before 1895.”[23] When A.A. Garner, a black lawyer in Montgomery, defended Jesse C. Duke – the editor of a black newspaper who had written an article suggesting that white women were attracted to black men – Garner was given 24 hours to leave town.[24] And when Thomas A. Harris, a black lawyer admitted in Montgomery in 1890, later tried to start a practice in Tuskegee, a white mob shot him in the leg and “chased . . .  Harris out of the city for establishing a law practice.”[25] Harris’s assailants were never indicted, and Harris never again practiced in Tuskegee. Indeed, across the South, as federal troops withdrew with the end of Reconstruction and as violence against blacks escalated, many blacks (including lawyers) fled for jurisdictions that promised more tolerance and better opportunity, such as Kansas and the Oklahoma Territory.

In determining who followed Moses Moore to become Alabama’s second black lawyer, once again it’s necessary to separate the elusive historical documentation from embellished biographies. Several eminent historians credit one of Alabama’s first black Congressmen, James T. Rapier, with admission to the Alabama bar in 1872, just before his Congressional term began. For example, J. Clay Smith’s groundbreaking history of black lawyers fleetingly states, without documentation, that “James Thomas Rapier, who had read law, followed Moses W. Moore to the Alabama bar around 1872.”[26] And in his biographical entry on Rapier in the Encyclopedia of Alabama, Brett Derbes of Auburn University claims that in 1857, Rapier “attended the University of Glasgow in Scotland and Montreal College, where he studied law and was admitted to the bar.”[27]

Yet there is no record in Alabama of Rapier’s having been admitted to practice – not at the trial court level or before the Alabama Supreme Court. As seen with Moses Moore and John Carraway, such an admission would have been a novelty worthy of news coverage. Even more tellingly, Rapier’s biographer makes no mention of Rapier’s gaining either a legal education or admission to the bar.[28] In addition, historians have erred before about Rapier; one scholar claimed the future Congressman was born to a white planter father and an enslaved mother, when in fact Rapier’s father, John, was a freedman and prosperous barber while his mother, Susan, had been born free.[29]

If Rapier was indeed a lawyer, then there is no evidence of his practice in Alabama courts. What we do know about James T. Rapier is that he led an extraordinary life. Born on November 13, 1837, in Florence, Alabama, James and his older brother, John, were sent in 1842 to live with their paternal grandmother in Nashville, Tennessee. There he attended school, and in 1853, James accompanied his uncle to Buxton, Ontario – a community founded by former slaves who had escaped to Canada. James attended the Buxton Mission School, studying classical subjects like Latin and Greek. In 1856, Rapier earned a teaching degree in Toronto before purportedly traveling to Scotland and later to Montreal to study law. By 1861, he was back teaching in Buxton (incidentally, the Buxton Museum’s biography of Rapier simply omits any reference to the law).[30]

After moving back to the United States in 1864, Rapier settled in Nashville. Following brief stints as a journalist and cotton planter, he returned home to Alabama in 1867 and embarked upon a life as a planter, labor organizer of black sharecroppers, and politician. Rapier was a delegate to the Alabama Constitutional Convention in 1867, ran unsuccessfully for Alabama Secretary of State in 1870, and was elected to the 43^rd U.S. Congress in 1872.[31] He lost his re-election bid in 1874, but received a patronage appointment as a collector for the Internal Revenue Service. Rapier died in Montgomery of tuberculosis on May 31, 1883.

While evidence is lacking about James Rapier’s legal career within an otherwise well-documented life, in the case of another contender for “the second black lawyer in Alabama” we have concrete evidence of his admission but nothing else.

Local newspaper reports around Alabama revealed that in January 1874, Charles E. Harris of Selma applied to the Supreme Court of Alabama for a license to practice law. An examining committee of local lawyers – “Messrs. Gardner, Jones, and Watts” – was appointed to test Harris’s knowledge. This committee “reported favorable,” and Harris was admitted to the bar.[32] The Alabama Supreme Court minute books and attorney rolls further reflect that, upon the sponsorship of lawyer Benjamin Gardner, on January 10, 1874, Charles E. Harris was duly “licensed to practice as an attorney at law and solicitor in chancery in all the courts at law and equity of this state.”[33] Unfortunately, the historical trail grows cold after that; nothing is known of Harris’s life leading up to his admission or of his life and law practice afterwards.

After Harris, the next of Alabama’s early black lawyers was Samuel R. Lowery. Lowery was born in Tennessee December 8, 1830, to a free Cherokee mother named Ruth, and an enslaved black father, Peter Lowery. After his wife died, Peter purchased his and Samuel’s freedom in 1849, and both father and son became preachers with Nashville’s Church of Disciples. Concerned for their safety after Nashville’s December 1856 race riot, the Lowerys moved to Cincinnati, Ohio. There, in 1858, Samuel met and married his wife Adora. The couple moved to Chatham, Ontario to help organize churches. With the Union occupation of Nashville in 1862, Lowery returned like many free blacks. After the war, Lowery and his father helped found Tennessee Manual Labor University, a school designed to educate freed men in agriculture and mechanical arts. But faced with threats from the Ku Klux Klan and allegations of financial improprieties, the school closed in 1872. Lowery, who had previously begun to read the law under the tutelage of a white lawyer in Rutherford County, was admitted to the Davidson County bar in 1870, and to the Tennessee Court of Appeals two months later.[34]

In 1875, Lowery and his family moved to Huntsville, Alabama. There, the transplanted lawyer was admitted to the bar, but his energies were focused more on business – specifically the cultivation of silkworms. He started the Lowery Industrial Academy and became a leader in the silk manufacturing field (at the 1884 World’s Fair, his silk won first prize).[35] In 1879, Lowery also served as editor of the National Freeman newspaper in Huntsville. His biggest claim to fame, however, came on February 2, 1880, when he became one of the first black lawyers admitted to practice before the U.S. Supreme Court – and certainly the first Southern black lawyer to do so.[36] Lowery died in 1900 in Loweryvale, a cooperative community he founded in Jefferson County, near Birmingham.

Finally, the fourth black lawyer admitted to practice in Alabama was also its first black judge – Roderick B. Thomas. Born free in Knoxville, Tennessee on December 26, 1847, Thomas eventually moved to Mobile. On April 16, 1867, Thomas was involved in a “near-riot” when he attempted to board a “white only” streetcar. The incident brought Thomas to the attention of the city’s Radical Republican mayor, Gustavus Horton, who appointed him to the police force.[37] Thomas later moved to Selma, where he remained active in Republican Party politics. On March 22, 1870, he was elected clerk of Dallas County’s newly-created criminal court, and in April 1873, Thomas won election to the Selma City Council.[38]

Owing in part to his high political profile, Thomas (who was admitted to the Alabama bar on December 12, 1876) actually became a judge before he became a lawyer. In late 1874, Judge George Craig, under whom Thomas was serving as clerk of the Dallas County Criminal Court, was appointed to a vacant circuit court bench. Roderick Thomas was nominated to succeed him, and both won by wide margins. Dallas County Democrats were enraged and vowed to petition the legislature to abolish the court entirely if Thomas did not step down. Thomas refused, and the Democrats made good on their threat. On February 4, 1875, the legislature did indeed abolish the court. Alabama’s first black judge was out of a job, after three months and one day.[39]

Adding insult to injury, just over a year later, the legislature established the city court of Selma – a court with identical jurisdiction to the recently-abolished court, but with a judge to be appointed by the Democratic governor instead of chosen by the Republican-majority voters of Dallas County. The vendetta against Thomas continued when, in early 1877, he found himself as a defendant in his former court facing charges of professional misconduct. He lost and was suspended from the practice of law but prevailed on appeal to the Alabama Supreme Court. On February 21, 1879, Thomas and other prominent black leaders were indicted by a Democratic grand jury on charges of voter intimidation in a recent election. Thomas decided to leave the state, and relocated to Little Rock, Arkansas.[40]

In Arkansas, Thomas enjoyed the success and professional respect that had eluded him in Alabama. For years, he had a successful partnership with Mifflin Gibbs, who had served as Arkansas’s first black judge.[41] After his death of a heart attack on November 16, 1887, Thomas was honored by testimonials of the Arkansas and Little Rock bars. Even the Arkansas Supreme Court adjourned in honor of his funeral, and attorneys – white and black – attended en masse.

Moses Moore and the handful of other black lawyers who followed overcame daunting odds and even physical violence to forge a path into the previously closed legal profession. But with the end of Reconstruction and the advent of Jim Crow, the trail they blazed became harder to follow. By 1930, there were only four black attorneys in Alabama. And while the generation of black lawyers who came of age just before the civil rights struggle of the 1950s and 1960s rightly deserve credit for the adversity they overcame and the legacy they left for today’s black attorneys,[42] all too often the title of “first” is bestowed upon someone inaccurately.[43] Alabama’s first black lawyers deserve to be remembered, and recognized.

The author gratefully acknowledges the extensive research assistance and inspiration of Alabama State Law Librarian Tim Lewis, who has not only explored this topic but first brought it to the attention of Alabama lawyers through his work as founder of the Alabama Bench and Bar Historical Society.

Endnotes

[1] Harvey Toulmin, Digest of the Laws of the State of Alabama: Continuing the Statutes and Resolutions in Force at the End of the General Assembly in January 1823, at 27 (1823).

[2] Ala. Code § 730 (1852).

[3] Id. §§ 731, 733, 735–736.

[4] Paul M. Pruitt, Jr., The Life and Times of Legal Education in Alabama, 1819–1897: Bar Admissions, Law Schools, and the Profession, 49:1 Ala. L. Rev. 281, 284 (1997); Ala. Code § 863 (1867). Not until 1876 did the Code replace that language with “any male.” See Ala. Code § 782 (1876).

[5] Ala. State Bar Proceedings 31, 85–91 (1879) (report submitted by John Mason Martin and read by Henderson Somerville).

[6] Michael W. Fitzgerald, Emancipation and Its Urban Consequences: Freedom Comes to Mobile, 18:1 Gulf S. Hist. Rev. 31, 38 (fall 2002).

[7] Id. Interestingly, much like his attorney status, Carraway’s authorship is murky, with a number of scholars and music historians not crediting Carraway as that song’s author. See generally id. at 45–46 n.27; Richard Bailey, Neither Carpetbaggers Nor Scalawags: Black Officerholders During the Reconstruction of Alabama, 1867–1878, at 9 (1991).

[8] Loren Schweninger, Alabama Blacks and the Congressional Reconstruction Acts of 1867, 31 Ala. Rev. 182 (July 1978).

[9] Monroe N. Work, Some Negro Members of Reconstruction Conventions and Legislatures and of Congress, 5:1 J. Negro Hist. 64–65 (Jan. 1920).

[10] Chi. Legal News (Mar. 2, 1870).

[11] Id.

[12] Id.

[13] The Tennessean (Nashville, Tenn.), Mar. 1, 1870, p. 2 (reporting item from the Montgomery Advertiser).

[14] John Carraway, Lawyer, Columbus Daily Enquirer (Columbus, Georgia), Feb. 24, 1870 (reprinting item from Montgomery Advertiser).

[15] Timothy A. Lewis, Alabama’s First Black Attorney/Who Was First?, Ala. Bench & B. Hist. Soc’y Newsletter 4–5 (Jan./Feb. 2021).

[16] J. Clay Smith, Emancipation: The Making of the Black Lawyer, 1844–1944, at 42 (1993).

[17] Id. at 45.

[18] Albert G. Riddle, Law Students and Lawyers: The Philosophy of Political Parties, and Other Subjects 41 (1873).

[19] New National Era, Feb. 9, 1871.

[20] Mobile Daily Register, Nov. 22, 1871.

[21] Minutes of the Supreme Court of Alabama, Jan. Term 1872, Roll 515, p. 261.

[22] Montgomery Daily State Journal, Jan. 5, 1872.

[23] Smith, supra note 16, at 273.

[24] William L. England, Jr. The Condition of Southern Negros, 1886–1889, As Viewed by the New York Age, 98–99 (Master’s Thesis, Butler University, June 17, 1972).

[25] Manning Marable, Tuskegee and the Politics of Illusion in the New South, 8 Black Scholar 13, 16 (May 1977).

[26] Smith, supra note 16, at 271.

[27] Brett Derbes, James T. Rapier, Encyclopedia of Alabama.

[28] Loren Schweninger, James T. Rapier and Reconstruction (1978).

[29] Eugene Feldman, James T. Rapier, Negro Congressman From Alabama, 19:4 Phylon Quarterly 417 (1958).

[30] James Thomas Rapier, http://www.buxtonmuseum.com/history/PEOPLE/james-rapier.html.

[31] Loren Schweninger, Alabama Blacks and the Congressional Reconstruction Acts of 1867, 31 Ala. Rev. 182–192 (July 1978).

[32] The Marion Commonwealth (Marion, Alabama), Jan. 15, 1874, p. 2.

[33] Minutes of the Supreme Court of Alabama, Jan. Term 1874, Roll 515, p. 213–214.

[34] Dwight Aarons, Some of the First African-American and Women Lawyers in Tennessee, 35 Tenn. B.J. 11 (Nov. 1999).

[35] William J. Simmons, Men of Mark: Eminent, Progressive, and Rising 144–45 (1887).

[36] A Colored Lawyer’s Mission: Samuel R. Lowery Admitted to Practice in the United States Supreme Court; His Plan for Educating His People, N.Y. Times (Feb. 3, 1880; see also Jill Norgren, Belva Lockwood: The Woman Who Would be President (2007). Lowery’s admission was sponsored by Belva Lockwood (the first female presidential candidate), who only a year earlier had become the first woman admitted to practice before the U.S. Supreme Court.

[37] Alston Fitts III, Roderick B. Thomas: Alabama’s First Black Judge, Ala. Bench & B. Hist. Soc’y Newsletter 8 (Jan./Feb. 2009).

[38] Id.

[39] Id.

[40] Id.

[41] Eric Foner, Freedom’s Lawmakers: A Directory of Black Officeholders During Reconstruction (1996).

[42] Kent Faulk, Before the Civil Rights Movement Alabama Blacks Faced Discrimination on Their Way to Getting Law Degrees and Licenses to Practice, Alabama.com (May 17, 2013).

[43] Selma’s First Black Lawyer Dies, Associated Press (Oct. 1, 2008) (reporting the death of J.L. Chestnut, Jr., who was not the first black lawyer in Selma).

-30-