Journal of Supreme Court History

Introduction

In reflecting 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.”¹ While Justice Jackson undoubtedly had in mind Black Supreme Court advocates turned members of the federal judiciary like Constance Baker Motley (first Black female federal judge) and Thurgood Marshall, one cannot ignore the rich legacy left by nineteenth century Black lawyers who appeared before the Court. While the history of lawyers generally has been too long regarded as “a White man’s history”² and Black lawyers’ “names and contributions remained unknown,”³ the history of Black Supreme Court advocates has been particularly neglected.⁴ Occasional mentions are made of pioneers like John Swett Rock (who in 1865 became the first Black lawyer admitted to practice before the U.S. Supreme Court) or Emmanuel M. Hewlett and Cornelius J. Jones (early Black Supreme Court advocates who on December 13, 1895, argued Gibson v. Mississippi and Smith v. Mississippi, respectively). But for too long, the question of “who was the first Black lawyer to ague before the United States Supreme Court?” has gone unanswered—or worse, incorrectly answered.⁵

This article seeks to rectify historical oversight and give due credit to this forgotten first: Everett J. Waring of Maryland, who in 1890 argued the case of Jones v. United States. The case he brought transcended garden variety criminal defense and the mis-treatment of Black workers to raise important questions about sovereignty and jurisdiction in the early days of U.S. imperialism that still resonate today. But in order to appreciate Waring’s achievement, and place it in historical perspective, we must first examine the complicated circumstances that launched his [End Page 265] legal career just a few years before as well as the unique and heartbreaking situation that led to Jones v. United States.

Defying the Odds

That Everett J. Waring became a lawyer in Maryland at all is a testament to both his will and the perseverance and organizing of a group of activists, the Brotherhood of Liberty, that predated the NAACP. Maryland, like other Southern states, had never admitted a Black American to the practice of law before the Civil War—despite having a Black population that was roughly equally divided between free and enslaved people. Even after the war ended, however, Maryland— unlike virtually every other Southern state— continued to bar Black citizens from the practice of law.⁶ Maryland’s statute restricting entry to the legal profession to White men was not repealed until 1888—twenty years after the Fourteenth Amendment was ratified.⁷

The first challenge to the racial barrier in Maryland came in 1857, the same year as the Dred Scott decision. A twenty-four-year- old free Black man and Baltimore native, Edward Garrison Draper, sought admission to the Maryland bar. Draper, the son of a free Black tobacconist, had been educated in Philadelphia and then Dartmouth, becoming one of the school’s first Black graduates in 1855.⁸ At a time when most Maryland attorneys lacked a college education and entrance into the legal profession demanded no more preparation than time spent “reading the law” under the tutelage of an older lawyer, Draper spent the next two years apprenticing with a respected Baltimore lawyer, Charles Gilman.⁹ Draper also spent his last several months in the Boston office of attorney Charles Storey, a Harvard Law graduate and clerk of the Superior Criminal Court.¹⁰

Upon returning to Baltimore, with Gilman as his sponsor, Draper was examined by Judge Zacheus Collin Lee of the Superior Court of Baltimore City. Lee, a first cousin to General Robert E. Lee...