This biography of Albion Tourgee is by Michael Kent Curtis. It is adapted from the America National Biography, copyright 1999 by the American Council of Learned Societies. Used by permission of Oxford University Press, Inc.
Albion Winegar Tourgee (May 2, 1838–May 21, 1905) is best known as the lawyer who challenged state-imposed racial segregation of railroads in the Supreme Court and lost. He was a Northerner who emigrated to the South immediately after the Civil War, becoming a Republican activist, a framer of the North Carolina Constitution of 1868, a Superior Court judge, an enemy of the Ku Klux Klan, and a supporter of equality for newly freed slaves. In 1879 he published a bestselling novel on Reconstruction, left North Carolina, and, in the years that followed, published many less successful novels and much political commentary.
In 1865, partly on the advice of a doctor that he seek a warmer climate for his health, he and his wife moved from Ohio to Greensboro, North Carolina. Tourgee was by this time a thoroughly radical Republican.
Tourgee’s commitment to racial equality, broader democracy, and protection of the economic underdog — white and black — collided with the values of most of the Southern elite. As Jonathan Worth, a former North Carolina Governor, wrote, “We who were born here will never get along with the free negroes, especially while the fools and demagogues of the North insist they must be our equals.” In 1866, Tourgee attended the Convention of the Southern Loyalists where he supported an unsuccessful radical resolution in favor of suffrage for African Americans. From 1866 to 1867, he edited a Republican newspaper in Greensboro.
In 1868, Tourgee was elected to represent Guilford County at the state Constitutional Convention. His platform included equal political and civil rights for all citizens, ending property qualifications for jury duty and office holding, popular election of all state officers (including judges), free public education, abolition of whipping post, stocks, and branding for those convicted of crimes, judicial reform, and uniform taxation. In good part because of his leadership, these reforms as well as a homestead exemption, protecting a modest amount of real and personal property from creditors, were written into the North Carolina Constitution. A scholar who was critical of Tourgee’s advocacy of racial equality still praised his contribution to North Carolina: “Few men have lived in the State who have conferred on it such lasting good . . . ,” the bemused scholar wrote in 1906, “and yet he was a partisan leader of a motley horde. . . .” After the Constitutional Convention Tourgee was one of three Code Commissioners who prepared a new Code of Civil Procedure for the state, making the legal system less technical and more likely to produce substantial justice.
Tourgee was elected Superior Court judge and served from 1868 to 1874. During his tenure as a judge Tourgee continued to attend Republican party functions. Although Tourgee was viciously attacked at the time in the press and criticized for partisanship by an earlier generation of scholars, his modern biographer concludes that he was a fair and impartial judge. Lawyers who were his political opponents said he was the ablest judge before whom they had practiced. He roused the ire of Conservatives by insisting that blacks be included on jury lists and that the jail be heated in winter, a concern for inmates that Conservative critics believed would encourage crime.
During Tourgee’s tenure as Judge, the Ku Klux Klan engaged in a systematic campaign of terror and political assassination designed to drive blacks and their Republican allies from power. The Klan was particularly active in Judge Tourgee’s piedmont North Carolina judicial district. Tourgee faced threats to his personal safety with extraordinary courage. The terror had an effect, however, and eventually self-styled Conservatives regained power in the state.
State efforts to prosecute Klansmen had been unsuccessful because of Klan disguise, secrecy, widespread public support, and the Klan practices of furnishing alibis for their fellows and intimidating witnesses. Still an 1871 investigation by Tourgee led to indictments of sixty-three members, including many from leading families, for Klan atrocities. Indeed Tourgee believed the Klan was controlled by the wealthy and powerful.
Conservatives, by then in power, responded with legal maneuvers to prevent prosecutions, including amnesty laws that on their face sheltered both the Klan and secret Republican organizations. As Tourgee sardonically noted, “in the excess of their zeal, and lest it should be supposed they desired to screen only their friends, they extended the mantle of forgiveness so as to cover apparently the innocent as well as the guilty. . . . In short, they pardoned not only the perpetrators of these outrages, but, in a reckless determination to forgive, they even pardoned the victims!”
As Republican political dominance faded, so did Tourgee’s hope for re-election as a judge. His law practice did not prosper. A handle manufacturing company he founded had failed during a financial panic, and Tourgee often found himself in difficult financial circumstances.
He was elected to the state Constitutional Convention of 1875 where he fought a partially successful rear guard action to protect the values enshrined in the Constitution of 1868. He ran unsuccessfully as Republican candidate for Congress in 1878.
In 1878, just a few years after the Illinois Supreme Court refused to admit women to the practice of law and the U.S. Supreme Court found nothing in the Constitution to prevent the exclusion, Tourgee argued successfully before the North Carolina Supreme Court for the admission of Tabitha Anne Holton, the first woman ever licensed to practice law in the state.
In 1879, Tourgee wrote a novel based on his Reconstruction experiences, A Fool’s Errand, and published several highly regarded legal treatises on North Carolina law. He left North Carolina, eventually moving to Chautauqua County, New York. A Fool’s Errand was a huge success, selling over 200,000 copies and attracting laudatory reviews.
Tourgee served without pay as counsel in Plessy v. Ferguson (1896), an unsuccessful challenge to Louisiana’s law requiring segregated railroad cars. “Justice,” he wrote in his brief, “is pictured as blind and her daughter the Law, ought at least to be color-blind,” and he insisted that the requirement for “separate but equal” railroad cars established a constitutionally impermissible caste system. Tourgee apparently inspired Justice John Marshall Harlan’s famous dissenting dictum “There is no caste here. Our Constitution is color blind. . . .”
Tourgee believed caste (“the legal subjection of one class to the domination and control of another”) had triumphed “under the protection of a supreme court, which has always been the consistent enemy of personal liberty and equal right. . . .” But, he said, caste was inconsistent with basic American values and would fall eventually, just as slavery had fallen.
Tourgee thought deeply about the failure of Reconstruction. As Tourgee saw it, Reconstruction was a continuation of the struggle against slavery. The techniques developed in the time of slavery to silence opponents of the institution were reincarnated in an effort to silence those who supported civil and political rights for blacks. The elimination of Republicans and blacks as a political force paralleled the similar fate of opponents of slavery in the South before the Civil War.
History’s view of Tourgee has altered with changes in attitude toward equal rights for African-Americans. Historians writing in the 1960s through the 1990s have been far more positive about Tourgee than those who viewed him through a lens of hostility to the goals of Reconstruction. Tourgee would not be surprised. “The life of the Fool,” he wrote in the introduction to his Fool’s Errand, “is full of the poetry of faith. … He differs from his fellow-mortals chiefly in this, that he sees or believes what they do not, and consequently undertakes what they never attempt. If he succeeds in his endeavor, the world stops laughing, and calls him a Genius: if he fail, it laughs the more, and derides his undertaking as A Fool’s Errand. So the same individual is often both a fool and genius…a fool to one century and a genius to the next. …”