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For a Union ‘Better Than It Was’Long forgotten, Albion Tourgée, Class of 1862, is attracting renewed attention for his work for racial equality in the post-Civil War South.By Karen McCally ’02 (PhD)
tourgeeCLASS CORRESPONDENT: In letters to the University’s first president, Martin Anderson, Tourgée recounted the often harrowing challenges he and others faced in advocating for equality after the Civil War. (Photo: J. Adam Fenster)

In the summer of 1905, a group of black intellectuals led by W. E. B. Du Bois gathered in Niagara Falls, Ontario, with the intention of launching a movement for racial equality in the United States. Near the splendor of the Canadian falls, where the group found lodging, they made plans for the “mighty current” of protest ahead. On Thanksgiving Day that same year, they sponsored nationwide memorial services for three “friends of freedom”: William Lloyd Garrison, Frederick Douglass, and Albion Tourgée.

Garrison holds a secure place in American history as a pioneering white abolitionist. Douglass, as an escaped slave who rose to international fame as an abolitionist leader, writer, and orator, enjoys much greater renown. But who was Albion Tourgée?

Tourgée, who died in early 1905, was “one of the most colorful of Rochester alumni,” University historian Arthur May once wrote. A Civil War veteran who fought at the First Battle of Bull Run, Tourgée migrated south after the war as part of a larger movement of northerners who sought both economic opportunities and a chance to help transform the region from a slaveholding to a “free labor” society. As a North Carolina attorney and judge allied with the self-described Radical Republicans, he worked to forge political alliances between blacks and poor whites and became a frequent target of a new and rapidly expanding white supremacist organization called the Ku Klux Klan.

When the Radical Republican vision for Reconstruction failed in the late 1870s, he turned to writing. His 1879 novel A Fool’s Errand, which featured graphic depictions of Klan violence, sold an estimated 200,000 copies—making it a bestseller at the time—and invited widespread comparisons to Harriet Beecher Stowe’s Uncle Tom’s Cabin. By that time a household name, Tourgée found support among black journalists and political leaders who recruited him to help draft the nation’s first antilynching law. Then, at the tail end of his career, a black civic organization in New Orleans sought him out as the lead attorney for Homer Plessy—the mixed-race shoemaker who became one of the most famous plaintiffs in Supreme Court history when the court ruled against him in the 1896 case Plessy v. Ferguson, enshrining the infamous “separate but equal” doctrine in American law.

tourgeeBETTER UNION: Troubled by the racism he saw while serving in Union regiments, after the war Tourgée (left) returned to the South, where he advocated for racial equality as a business owner, writer, attorney, and judge. (Photo: Chautauqua County Historical Society, Westfield, New York)

Tourgée is an obscure figure in American history, considering the breadth of his work and his fame in his prime. College students were once introduced to Tourgée through A Fool’s Errand. Larry Hudson, a professor of history at Rochester who specializes in African American history and teaches on the Civil War and Reconstruction, says “back in the early 1980s, [the book] was a really big deal. But the turn to black studies, and the search for black sources, was gathering steam.” Writings by people like Harriet Jacobs, a former slave, or Charlotte Forten Grimké, a free-black activist who taught in the South, began to take center stage in what Hudson calls “a crammed ‘must-read’ list.”

Tourgée was also on the losing side of almost every major battle he waged. History’s losers are often forgotten, and for a long time, that was true in Tourgée’s case. But more recently, his losses seem only to have enhanced his reputation.

A Tourgée TimelineRadicalized by the racism he saw during his lifetime, the Class of 1862 graduate spent his career working to bring racial equality to the country.By Karen McCally ’02 (PhD)

Since roughly the early 2000s, Tourgée’s ideas have been parsed in books and dissected at conferences. One biographer has credited him with forging a doctrine of color-blind law. Another has pointed to the unusual depth of his commitment as a white ally to African Americans.

As Americans continue to grapple with race and its implications, Tourgée’s arguments in Plessy seem especially forward-looking. Pointing to his fair-skinned client, he underscored the indeterminacy of race. In explaining the function of racial segregation, he seemed to anticipate 21st-century descriptions of white privilege.

tourgeeFREEDOM’S FRIEND: In 1905, black intellectuals led by W. E. B. Du Bois (above) memorialized Tourgée as a “friend of freedom.” (Photo: Library of Congress)

Those closer to his boyhood hometown of Kingsville, Ohio, have also taken note. In 2015, residents and students and faculty at Kent State University- Ashtabula secured a historical marker outside Tourgée’s boyhood home to honor the local hero who risked his life working to write civil rights into law in the post–Civil War South. Before the group began the effort, few people in the town had ever heard Tourgée’s name.

Born in 1838 in Williamsville, Ohio, Albion Winegar Tourgée grew up in an area that was a center of abolitionist thought and agitation. But his own political awakening began in Rochester, during the heated election season of 1860, and later, as a Union soldier in the South.

Like many young men en route to higher education, Tourgée emerged from his teens with his sights set on the nation’s oldest and most established institution, Harvard. To attend, he needed familial support. From his father, with whom he had a contentious relationship, he didn’t receive it. In the fall of 1859, he enrolled instead at the University of Rochester.

The University was founded in 1850 during a surge in higher education. It was the first higher education institution to grace a city that had been growing and thriving since the Erie Canal’s completion in 1825 established it as the nation’s first boomtown. The City of Rochester was already an intellectual center, with Douglass, who published his newspaper downtown, part of a nexus of abolitionists and supporters of women’s rights who frequented the city and drew large crowds to their lectures at the majestic Corinthean Hall. Located in the United States Hotel building on Buffalo Street (now West Main), just around the corner from the hall, the University was at the epicenter of the city’s vibrant intellectual life.

Tourgée dove into his new college life, joining the fraternity Psi Upsilon and the chess club. Faced with the choice of two popular literary societies—the Delphic (serving “Wisdom and Reason”) and the Pithonian Society (serving “The Beautiful and the Good”)—he chose the latter. In his role as class poet, he demonstrated the talents for writing and oratory that would propel him forward in his civic and literary career.

Early on, he attracted the notice of President Martin Anderson. When Tourgée aced the Greek portion of his entrance exam, Anderson, an adamant proponent of the Classical curriculum, granted him sophomore status. But Anderson was less pleased when Tourgée founded the University of Rochester Wide Awakes in the fall of 1860.

The Wide Awake movement, which began earlier that year, attracted young and militant voters through its signature torchlit marches for the cause of abolition, the Republican Party, and Abraham Lincoln’s candidacy. Chapters spread in towns throughout the Northeast and in places like Ohio, where Tourgée’s fiancée, Emma Kilbourne, greeted the Wide Awakes with enthusiasm. Tourgée had shown little interest in politics up until that point, but was likely influenced by Kilbourne, as well as Anderson’s recent decision to ban political clubs from the University. In an early indication of the principled contrarianism that would help define his career, Tourgée responded to the ban by founding a University chapter of the Wide Awakes and recruiting some 70 members. After Anderson brought a police officer to confront the group, Tourgée and the other members agreed to drop the University of Rochester from their name.

Anderson wasn’t unusual among antislavery northerners in his wariness toward the showy young activists. He was primarily a nationalist whose interest in preserving the Union outweighed his moral objection to slavery. When Confederate gunmen fired on federal troops at Fort Sumter in April 1861, those disagreements faded into the background. Anderson made an impassioned speech to students in support of the Union cause. Tourgée was among the students who enlisted.

The beginning of Tourgée’s military service marked the end of his time at Rochester, though his relationships with Anderson and with his brothers in Psi Upsilon would continue through most of his life. Like other students who interrupted their education to join the war effort, he was granted a degree in absentia, in his case in the spring of 1862.

Tourgée served two tours of duty, the second after he had been severely injured. Barely a month after he joined the 27th New York Volunteers, he suffered a serious spinal wound during the Union retreat from the First Battle of Bull Run. Partially paralyzed, he was ruled unfit for continued military service and returned to Ohio, where he began to study law and served as a Union Army recruiter. When he regained his mobility, he was permitted to re-enlist as a first lieutenant in the 105th Ohio Volunteer Infantry.

There he was deeply influenced by the Western Reserve abolitionists who made up most of the group. His allegiance to abolition—at first abstract and intellectual—became concrete and visceral once he began interacting with African Americans for the first time. The infantry was stationed in Kentucky, where Tourgée witnessed not only slavery, but also the racism that tightly constricted the lives of free blacks. In a January 1863 letter to his Psi Upsilon brothers back at Rochester, Tourgée showed that he had undergone an almost complete transformation in his understanding of the war’s aims.

“I don’t care a rag for ‘the Union as it was,’ ” he wrote. “I want and fight for the Union ‘better than it was.’ ” Calling for “a thorough and complete revolution and renovation,” he argued in favor of a society free not only from slavery, but also from any laws that subjugated black Americans.

Tourgée would be a significant participant in that revolution during the Reconstruction period. After discharge from the military at the end of the war, he returned to Ohio, obtained a license to practice law, and moved with Emma, whom he married in 1863, to Greensboro, North Carolina, an area with a Quaker population and notable loyalist sentiment before the war.

With his moral passion, intellect, and considerable oratorical skills, he rose rapidly in state politics. Once elected to the North Carolina constitutional convention, he became an influential delegate and later, a superior court judge.

He and Emma also worked to found freedmen’s schools. One of them operated on a nursery farm in which Albion and two Rochester classmates, Seneca Kuhn, Class of 1861, and Reuben Pettengill, Class of 1862, had invested. While the three men purchased the nursery as a business venture, the Tourgées’ primary interest was turning the nursery into an instrument of black uplift and a model of their shared vision of labor relations. The Tourgées, who hired and taught black workers, found themselves at odds with Kuhn and Pettengill over the workers’ conditions of employment.

The business was not doing well. It suffered from its association with Tourgée, who was reviled for his political work outside the Radical Republican circles in which he ran.

A Wilmington, North Carolina, newspaper description of him was typical: “This Tourgée is the meanest looking man it has ever been our misfortune to meet. The pirate; the cutthroat; the despicable, mean, cowardly, crawling, sneaking villain have been portrayed by nature, with a master hand, in every lineament of his countenance. The mark of infamy is stamped indelibly on his brow in the shape of a large protuberance that strikes the beholder with ineffable disgust.” Barely a year after the nursery venture began, it dissolved.

Tourgée was a frequent target of the Ku Klux Klan, which was founded in Tennessee at the end of the Civil War and spread rapidly throughout the South. The group was especially active in areas with the strongest alliances between blacks and whites. Threats on his and Emma’s lives weighed heavily on the household which by 1870 included their newborn baby girl, Aimee, and a 13-year-old former slave named Adaline Patillo, whom the couple had adopted. Tourgée wrote often to Anderson, expressing his fears and frustrations.

“You have no idea, you can have none, of the wholesale demoralization of our society,” he wrote to Anderson in the spring of 1870. “In my district—comprising eight counties—the following crimes have been committed by armed ruffians in disguise—masked and shrouded—during the past 10 months: 12 murders, 9 rapes, 11 arsons, 6 men castrated—and any number of houses broken open and men and women dragged from their beds and beaten or otherwise cruelly outraged. No one has ever been convicted for any of these offenses, and probably never will be.”

Tourgée complained bitterly as he witnessed the North’s retreat from the vision of racial equality codified into federal law with the ratification of the Fourteenth and Fifteenth Amendments to the Constitution. His darkest predictions came to pass in 1877, when the Republican party agreed to withdraw federal troops from the South and officially end its commitment to enforcing racial equality there. Defeated and demoralized, Tourgée stepped back from political and civic life, and turned to writing.

Between 1879, when he published A Fool’s Errand, and the end of the 1880s, Tourgée wrote more than 10 works of fiction and nonfiction. The University recognized him with an honorary degree in 1880. Yet the most significant chapter of his civic career was still to come.

The publication of A Fool’s Errand led to an offer to write a column in the Republican party newspaper the Chicago Inter Ocean. In the column, called “A Bystander’s Notes,” Tourgée railed over the tactics of violence and intimidation used by Southern white leaders to suppress black political participation. The column was distributed widely in the African American press, where its readers included the pioneering journalist and antilynching activist Ida B. Wells.

Lynching was on the rise in the 1880s, and increasingly took place in broad daylight. In the early 1890s, Wells and Harry Smith, editor of the Cleveland Gazette and a member of the Ohio state legislature, sought Tourgée’s help to draft an antilynching law. Smith shepherded the bill through the Ohio legislature. Signed into law in 1896, it became a model for similar laws in nine other states and for the NAACP in the national antilynching campaign it launched early in the next century.

“A Bystander’s Notes” led to another fortuitous collaboration. When the governor of Louisiana signed into law “An Act to promote the comfort of passengers”—mandating “equal but separate accommodations” in railroad cars—a group of men of color in New Orleans came together to form the Citizens’ Committee to Test the Constitutionality of the Separate Car Law. “We know we have a friend in you and we know your ability is beyond question,” they wrote to Tourgée, asking him to become their lead attorney.

Tourgée and two other attorneys for the committee forged a plan of civil disobedience to set the legal test in motion. Tourgée argued forcefully that the ideal plaintiff would be racially ambiguous in appearance. His colleagues concurred, after which they secured the agreement of Homer Plessy—a mixed-race shoemaker so fair skinned as to easily “pass” for white—to purchase a ticket for intrastate travel and seat himself in a white-designated car. Events unfolded as planned. With a quiet hand from the railway, which had no desire to enforce the new law, Plessy was arrested and charged with violating the state’s Separate Car Act.

In just a few years, the case reached the US Supreme Court, where Tourgée challenged the law as a violation of the Fourteenth Amendment’s guarantee of equal protection. It was a potential landmark case, because the Fourteenth Amendment, ratified in 1868, was intended to nationalize the Bill of Rights, which until then had prohibited only the federal government from violating basic citizenship rights.

The law had been drafted to ward off constitutional challenges by requiring railway companies to provide equivalent accommodations in its black and white cars. The law’s defenders contended that racial separation was designed to enhance the comfort of black as well as white passengers. In arguments before the Court, Tourgée focused on the broader social context of the law. In a society in which “six-sevenths of the population are white, nineteen-twentieths of the property of the country is owned by white people,” and “ninety-nine hundredths of the business opportunities are in the control of white people,” he wrote in his brief before the Court, it simply wasn’t convincing to maintain that the law was equally intended to serve black customers. Instead, Tourgée argued, the law codified racial hierarchy.

Tourgée devoted great attention to Plessy’s mixed heritage—seven-eighths European and one-eighth African, the plaintiff reported—and its implications for efforts to assign people to racial categories. By custom, whites considered Plessy black. But how could any railway operator know for sure? “Is not the question of race, scientifically considered, very often impossible of determination? Is not the question of race, legally considered, one impossible to be determined, in the absence of statutory definition?” he asked the Court. “Justice is pictured blind and her daughter, the Law, ought at least to be color-blind,” he wrote.

In the end, only one justice ruled in Plessy’s favor.

The Plessy case was Tourgée’s most spectacular defeat. Later he and his allies would face criticism for an overly ambitious gamble that set progress back immeasurably by enabling the highest court to place its stamp of approval on segregation.

Tourgée had been well aware of the risks. After he began working with the Citizens’ Committee, he helped set up a national organization to document the spread of Jim Crow laws in the South. The hope was that the association, with the help of a sympathetic northern press, would sway public opinion sufficiently to influence just enough justices for a majority.

As it turned out, it would take another half century for the court to declare Jim Crow laws unconstitutional. In 1954, a decades-long legal campaign against segregation waged by the NAACP culminated in the Brown v. Board of Education decision. The unanimous decision, in declaring segregation laws unconstitutional, laid waste to Plessy’s “separate but equal” doctrine.

Having viewed the Supreme Court of his day as an obstacle to liberty and equality, Tourgée would have been heartened by the decision. But having seen the power of the resistance against racial equality, he would likely have been unsurprised that Brown did not, by itself, end segregation or bring about racial equality under law.

The most far-reaching progress toward racial equality came about only after a mass movement. Forged by African Americans, inspired by the Radical Republican vision of Reconstruction, and joined by white allies who were willing as well to risk their lives for racial equality, the civil rights movement of the 1960s could claim concrete steps toward “a Union better than it was.”

But as the country continues to struggle with its legacy of racial inequality, the “thorough and complete revolution” that Tourgée longed for still awaits.