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By Hon. John G. Browning

AMONG THE MANY NAMES OF THOSE PASSING THE MARYLAND BAR EXAM and eager to be added to the rolls of practicing attorneys this year, one name stands out: Edward Garrison Draper. That’s because Mr. Draper’s admission takes place nearly 166 years after he was informed that he could not join the ranks of practicing Maryland attorneys—not because of his ability, but solely because of the color of his skin. In righting this historic wrong, the Supreme Court of Maryland will—for the first time in its history and only the seventh time in American legal history—admit Mr. Draper posthumously, sending a message that doing justice has no expiration date.

It all began back in 1855 in Baltimore. Draper had just graduated from prestigious Dartmouth.1 His parents, free Black tobacconist Garrison Draper and his wife Charlotte Draper, wanted the best for their only child, Edward. Both of them were among the approximately 21,000 literate of the 84,000 free Black people in antebellum Maryland. Due to the limitations of public education for Black children in Baltimore, they had sent Edward to receive his preparatory education at the public school for Black youth in Philadelphia.2 Well prepared for Dartmouth, Edward graduated in 1855 with “a very respectable standing, socially, and his class.”3

But with his sights set on becoming a lawyer, Edward Garrison Draper was clearly an ambitious young man. Only four Black Americans had become lawyers by that point: Macon Bolling Allen was admitted in Maine in 1844 and then Massachusetts in 1845, followed by Robert Morris in Massachusetts in 1847, George Boyer Vachon in New York in 1848, and John Mercer Langston in Ohio in 1854.4 In addition, Maryland as a state was less tolerant than most. Its bar admission statute restricting anyone but a white male from becoming a lawyer dated back to 1832, and it wasn’t formally repealed until 1888—twenty years after the passage of the Fourteenth Amendment, and long after every other former slaveholding state had permitted Black Americans to become lawyers.

In reality, Draper’s Ivy League college degree also set him apart from other aspiring lawyers. College degrees were uncommon among lawyers, and law degrees were almost unheard of: as late as 1883, less than half of the students at the fledgling University of Maryland School of Law had bachelor’s degrees.5 Prior to the Civil War, there were only a handful of law schools in the United States, and none were in Maryland. To be a lawyer in 1857 Maryland, one had to be merely a free white male citizen of the state over twenty-one years of age who had been “a student of the law in any part of the United States” for at least two years previous to said application.6 Applicants could make their petition in open court, and the judge examining the attorney candidate would “examine the applicant upon the same day during the regular session [of the court], touching his qualifications for admission . . . and they shall also require and receive evidence of his probity and general character . . .”7 In 1876, Maryland’s examination process would change to a board of three examining attorneys, but it was not until 1898 that the state would initiate a formal written bar examination overseen by a State Board of Law Examiners.

Armed with his Dartmouth degree, Draper embarked upon “reading the law” for two years, apprenticing under Baltimore attorney Charles Gilman. When Draper was not tucked away reading in Gilman’s office, he spent much of his time reading in the office of Dr. James Hall, general agent of the Maryland Colonization Society and editor of the Maryland Colonization Journal—both of which encouraged the emigration of free Black “colonists” to Liberia. Yet reading law books and tutelage by a lawyer would only take Draper so far. The color of his skin made it impossible to acquire first hand practical knowledge of the day-to-day realities of Baltimore law practice and the quirks of the bench and bar, so Draper spent several additional months studying in the Boston office of prominent abolitionist attorney Charles W. Storey. And since Storey also served as clerk of the Superior Criminal Court in Boston and register of insolvency for Suffolk County. Draper was well positioned to see real lawyers in action.9

On October 29, 1857, equipped with his legal education, Charles Gilman’s sponsorship, and months of practical observation in Boston courts, Edward Garrison Draper presented himself for examination before Baltimore Superior Court Judge Zacheus Collins Lee. Lee, who had served as U.S. Attorney for Baltimore from 1848 to 1855, was a first cousin to Robert E. Lee. Judge Lee was also a slave owner; while the exact number of human beings he held in bondage is unknown, he posted newspaper notices offering rewards for the capture and return of at least two enslaved persons, Martha and Samuel, who ran away.10 Judge Lee knew that, however impressive Draper might be as an aspiring lawyer, he was not a “free white citizen” and so would not be admitted. But Draper persuaded the judge of his intent to emigrate to Liberia and his desire to establish a practice there.

So, Judge Lee issued Draper a certificate that stated as follows:

STATE OF MARYLAND
City of Baltimore
October 29, 1857

Upon the application of Charles Gilman, Esq. of the Baltimore Bar, I have examined Edward G. Draper, a young man of color, who has been reading law under the direction of Mr. Gilman, with the view of pursuing its practice in Liberia, Africa. And I have found him most intelligent and well informed in his answers to the question propounded by me, and qualified in all respects to be admitted to the Bar in Maryland, if he was a free white citizen of this State. Mr. Gilman, in whom I have the highest confidence, has also testified to his good moral character. This Certificate is therefore furnished to him by me, and with a view to promote his establishment and success in Liberia at the Bar there.

Z. Collins Lee Judge of the Superior Court, Baltimore, Maryland11

Holding this certificate, the newly married Draper and his wife, Rebecca Jordan, set sail from Baltimore to Liberia six days later aboard the M.C. Stevens. Sadly, however, Draper’s promise as an attorney went unfulfilled. In less than a year after arriving in Monrovia, Edward Garrison Draper died on December 18, 1858 of tuberculosis.12 Nothing is known of Draper’s all too brief legal career in Liberia. What we do know is that, but for the color of his skin, this Dartmouth graduate met all the requirements for admission to the Maryland bar—a fact acknowledged by the Baltimore judge who examined him. Maryland would go on to resist a series of legal challenges after the Civil War to its racially restrictive bar admission statute until 1885, when Everett J. Waring became Maryland’s first Black lawyer to be admitted to practice in state courts.13

In a more enlightened 21st century, the highest courts in several states had granted posthumous bar admissions as a means of belatedly undoing past racial injustice. Embracing that knowledge, I began researching Edward Garrison Draper’s life several years ago. In early 2023, I spoke at a symposium at the University of Baltimore School of Law, and—joined by Baltimore attorney Domonique Flowers and University of Baltimore law professor José Anderson, as well as a host of supporting organizations and individuals—I filed a petition with the Supreme Court of Maryland seeking Edward Garrison Draper’s posthumous admission. Thankfully, it was granted just days later. On October 26, 2023, in a special ceremony, the Supreme Court will posthumously admit Mr. Draper to the Maryland bar, righting a historic wrong done in 1857—the same year our U.S. Supreme Court in Dred Scott v. Sandford proclaimed Black Americans to be “beings of an inferior order.”

As Rev. Martin Luther King would say, it is “always the right time to do the right thing.”

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*John G. Browning has been handling civil litigation and appeals in state and federal courts for nearly 34 years. He is a former Justice on Texas’ Fifth Court of Appeals, and currently serves as Distinguished Jurist in Residence at Faulkner University’s Thomas Goode Jones School of Law. He is a graduate of Rutgers University and the University of Texas School of Law. He successfully argued the most recent previous case of a posthumous bar admission, in the Texas Supreme Court in 2020.

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1 John G. Browning, To Fight the Battle, First You Need Warriors: Edward Garrison Draper, Everett Waring, and the Quest for Maryland’s First Black Lawyer, 53 Univ. of Balt. L. Forum (Fall 2022).

2 Id. at 5.

3 James Hall, A Lawyer for Liberia, 9 Md. Colonization J. (1857).

4 Browning, supra note 1, at 3.

5 Roscoe Pound, The Lawyer from Antiquity to Modern Times, 177–87 (1953).

6 Act of Mar. 10, 1832, ch. 268 (Md. Laws 1831).

7 Id. § 2.

8 Maryland General Assembly, ch. 139 (Laws of 1898).

9 William T. Davis, Professional and Industrial History of Suffolk County, Massachusetts, 413 (Vol. I 1894).

10 See Daily National Intelligencer, Aug. 8, 1842; Daily National Intelligencer, July 27, 1836.

11 Z. Collins Lee, Certificate Attesting that Edward G. Draper is Fit to Practice Law (Oct. 29, 1857), in 9 Md. Colonization J., 89 (1857) (emphasis added).

12 See Edward Garrison Draper, Dartmouth Library, https://www.dartmouth.edu/library/rauner/blackgreens/e_draper.html. ]

13 John G. Browning, A Forgotten First: Everett J. Waring, First Black Supreme Court Advocate, and the Case of Jones v. United States, 47 J. Sup. Ct. Hist. 3 (2022).