John G. Browning and Chief Justice Carolyn Wright 2014-11-27 10:33:04
The earliest African-American lawyers in Texas. This year marked the 60th anniversary of the U.S. Supreme Court’s decision in Brown v. Board of Education and the 50th anniversary of the Civil Rights Act. Yet even as such milestones are celebrated, it is all too easy to overlook the earliest pioneers in the struggle for civil rights, including African-American lawyers in Texas who were taking on cases involving equal accommodations in public transportation, voting rights, and race-based exclusion of blacks from grand juries as early as the waning years of the 19th century. Who were the first African-American attorneys in Texas? It is a question that has challenged some historians and led others to make mistaken or unfounded assertions. Hoping to set the record straight and to educate the public about these important yet often overlooked trailblazers, we set out to determine who was first. It was a mission that brought us to historical archives, State Bar and Texas Supreme Court files, obscure court records, and reports in small-town Texas newspapers. And it was a journey well worth taking. Identifying early African-American lawyers in Texas was a daunting task for many reasons, including the lack of extant records and the fact that this area has drawn little scholarly attention. Sheer numbers posed another difficulty; by 1890, the voluntary Texas Bar consisted of 3,555 lawyers—and only 12 of them were African-American. The changing standards for being admitted to practice law in Texas also made the work complicated. Texas didn’t have a bar exam until 1903, and for most of the 19th century, candidates for admission to the bar usually lacked a formal legal education, having instead “read the law” under the tutelage of an older attorney. Yet despite the challenges in locating them, there is no denying the significant contributions made by Texas’s earliest black lawyers. Many of them served their communities in additional capacities, including as teachers, journalists, and political leaders. These legal trailblazers practiced in courtrooms where members of their own race were forbidden to serve on juries and where they were met with a variety of indignities and bigotry from white judges and lawyers. Perhaps most important, they served as inspiration for the generations of African-American lawyers who would follow. One could make a good case for Allen W. Wilder as the first African-American lawyer in Texas. Born a slave in North Carolina in approximately 1845, Wilder was identified in the 1870 federal census as a 25-year-old father of five who worked in a mechanic or engineering field. In 1872, the people of Washington County elected the Brenham-area man to the Texas Legislature, where he served on the Committee on Public Lands and Land Office. Nothing is known about where Wilder received his legal education or exactly when he began practicing law, but by 1880, he is identified by the census as a lawyer. One source describing him as a county attorney candidate in 1886 noted that he had practiced law in Washington County for “seven or eight years,” and election tallies in February 1876 show Wilder receiving votes for the office of “presiding justice.” Wilder remained politically active as a Republican for some time. After winning a close election to the 15th Legislature in 1876, a house committee invalidated the results after alleging that some of Wilder’s tally came from illegal votes, and the election was awarded to his opponent. Wilder ran for Texas Senate in 1878 but lost. With Reconstruction over and Democrats reasserting political control in Texas, political acts of violence became more common. In 1884, Wilder was shot by white men at a ballotcounting site and had to have his arm amputated. Two years later, his candidacy for Washington County attorney angered local Democrats as well as some white Republicans. Once again, the elections were marred by racially and politically motivated violence, including the shooting of a white man who tried to break into the ballot box location for a predominantly black precinct. That incident led to the lynching of three African- American men. The violence and suppression of the African-American vote was so widespread that in 1889, the U.S. Senate held hearings on the “alleged election outrages in Texas.” During testimony, it was clear that opposition to having “a colored man” like Wilder as Washington County attorney was a reason for at least some of the violence. Wilder lost his bid for county attorney, and he died in Houston in 1890 amid charges of perjury and illegally signed school vouchers. An even better case can be made for W.A. Price as not only the first African-American attorney in Texas but also the first to hold judicial office. Price was born in Alabama and studied in Ohio before moving to Texas to practice law. An 1872 African-American newspaper described him as well-traveled, “a fair representative of his race,” and “an active and influential Republican.” The Indianola newspaper and other papers referred to him as “Judge W.A. Price,” and he is noted as being justice of the peace for Precinct No. 2. By 1876, Price was admitted to practice in Fort Bend County and was elected as county attorney that same year. Unfortunately, there is scant further information about Price that survives to this day. While he may not have been practicing as early as Price or Wilder, George W. Fremont was not far behind when he became the first African-American member of the San Antonio Bar in 1879. According to newspaper accounts, Fremont “began the study of law in Wisconsin in 1873”1 and in 1876 arrived in San Antonio, where he received both “friendly encouragement” and the use of private law libraries from several local attorneys, including “Col. C. Upsom [sic] now member of Congress, Col. J.H. McLean, and other prominent Democratic attorneys.” 2 Fremont “made rapid progress” in his studies, which culminated in his examination by a committee of three local lawyers. As a result of the successful examination, the newspaper noted that Fremont was no longer “a stranger” but a “colored attorney” who “now has full authority to practice in the courts of that district.” 3 Very little else is known about Fremont or his legal career. Although it is unclear when Austin attorney John N. Johnson was admitted to practice or where he received his legal training, records of the Texas Supreme Court reveal his place on the rolls on Feb. 9, 1883—which may make him the first African-American to have been enrolled to practice before the state’s highest court. A school teacher in Calvert, Johnson maintained a high professional profile as an ardent crusader for civil rights. In April 1883, he wrote to the state attorney general to protest the shooting and killing of Sam White, an African-American inmate who was murdered by a guard. The attorney general responded by ordering the Burleson County attorney to investigate the shooting. About four months later, Johnson made headlines by filing three civil rights lawsuits against the Houston and Texas Central Railroad companies for denying African- Americans facilities equal to white passengers. Newspapers condemned Johnson’s legal maneuverings as stirring up trouble. Johnson met with the railroads’ management and announced that he was dismissing the lawsuits, as well as discouraging “the bringing of similar suits on the part of our people,”4 pointing out that the railroads had promised to furnish “separate, exclusive, equal accommodations for colored patrons” within three months. He denied that his lawsuits were “brought to force social admixture,” and maintained they were brought only to achieve a “just verdict of public opinion and a lawful demand by lawful means.”5 Johnson continued to earn a living teaching school, practicing law, and writing for an African-American newspaper in Austin. By 1887, he had moved to Bryan and continued his civil rights efforts. That year, in the aftermath of “the Brazoria troubles”—where whites attempted to force evictions of black settlers in Brazoria and Matagorda counties—Johnson wrote to the governor requesting that he investigate. While the governor questioned the constitutionality of appointing such a commission, he did take action that indicated Johnson’s plea was favorably received. While it remains unclear whether Wilder or Price was the first African-American lawyer to practice in Texas, Joseph Cuney of Galveston is undoubtedly the first native Texan African-American lawyer. Cuney was born into slavery in 1845 at Sunnyside, the Austin County plantation. He was one of eight children of the wealthy white planter Philip Minor Cuney and the slave Adeline Stuart. Cuney and his siblings were freed before the Civil War. Cuney, who studied at Howard University Law School, was one of the few early African-American attorneys in Texas to have a more formal legal education. However, he was a latecomer to the actual practice of law, having been admitted to the bar in May 1897, when he was 52 years old. Before that, Cuney benefited from the influence of his younger brother, Norris, who has been described by some historians as one of the “greatest political leaders” of Texas and arguably the most powerful African-American politician of the late 19th century. As de facto head of the Republican Party in Texas, Norris Cuney was a dispenser of political patronage jobs, and Joseph shared in this as well, serving as clerk at the U.S. Custom House in Galveston before turning to the practice of law. It was his status as Norris Cuney’s brother, more than the novelty of being an African-American lawyer, that made Joseph’s admission to the bar newsworthy. The May 29, 1897, Houston Daily Post reported that “Joseph Cuney was today admitted to the bar. He was examined in the district court and passed a creditable examination.”6 The article went on to note that he was a brother of “the wellknown negro politician.”7 Cuney was one of 11 African-American lawyers who practiced in Galveston between 1885 and 1920. Like his contemporaries, his was a general practice that included handling divorces, probate, real estate matters, and criminal cases as well as representing black-owned businesses and fraternal organizations like the Colored Knights of Pythias. While his broad litigation experience did not specifically include civil rights matters, Cuney used his status and influence to address inequities during the Jim Crow era by giving speeches designed to galvanize African-American voters. In addition, his letter of protest against a proposed 1906 ordinance to segregate the city’s municipal streetcar lines was published in Galveston’s leading newspaper as well as by the black press (the ordinance passed nonetheless). When doing historical research, it is often impossible to definitively determine who was the very first to have achieved a certain milestone. Even the most thorough and extensive records can have missing pieces of the puzzle, and some details remain out of the public record while being kept by surviving family members. This is partly why the story of the earliest African-American attorneys in America and in Texas has largely eluded historians of the legal profession. We hope that by shining a light into this overlooked chapter of our state’s history, the lawyers of today will have a new appreciation for those who paved the way. TBJ NOTES 1. Brenham Weekly Banner, Vol. 14, No. 21 (May 23, 1879), http://texashistory. unt.edu/ark:/67531/metapth115378/. 2. A Negro Attorney, Brenham Weekly Banner, Vol. 14, No. 21, Ed. 1, Friday, May 23, 1879, (The Portal to Texas History, http://texashistory.unt.edu/ark:/67531/ metapth115378/m1/1/ (last accessed May 28, 2014)). 3. Id. 4. Austin Weekly Statesman, Vol. 13, No. 4 (Sept. 27, 1883), http://texashistory. unt.edu/ark:/67531/metapth277913/. 5. Id. 6. Houston Daily Post, Vol. 13, No. 55 (May 29, 1897), http://texashistory.unt. edu/ark:/67531/metapth84195/M1/2. 7. Id. JOHN G. BROWNING is a trial attorney in Dallas, where he handles civil litigation in state and federal courts in areas ranging from employment and intellectual property to commercial cases and defense of products liability, professional liability, media law, and general negligence matters. He also serves as an adjunct professor at Southern Methodist University Dedman School of Law, where he teaches the course “Social Media and the Law.” CHIEF JUSTICE CAROLYN WRIGHT presides over the 5th Court of Appeals in Dallas, the largest intermediate court of appeals in Texas, and has served in the judiciary for more than 30 years. She is a graduate of Howard University School of Law, an inductee into the Texas Women’s Hall of Fame, the first African-American woman in Texas history to be elected in a multi-county election, and the recipient of numerous professional awards for her contributions to the law and community.
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