Albion Winegar TourgeeMayville’s Civil Rights Hero
By Richard G. Waite
Albion Tourgee, ca. 1881, the year he moved his family to Mayville.Credit- Author’s collection
On South Erie Street in Mayville, next to the library, stands an attractive Italianate house. A blue-and-yellow historical marker standing on its front lawn proclaims: TOURGEE HOME – HERE FROM 1881 TO 1900 LIVED JUDGE ALBION W. TOURGEE – SOLDIER, AUTHOR, AMBASSADOR TO FRANCE. This bare-bones pronouncement provides the least clues as to the true nature of that idealistic, compassionate and brave man, Albion Winegar Tourgee. A Reconstruction-era champion of the rights of the black freedmen and freedwomen of the South and lead advocate for black rights in the most infamously bigoted Supreme Court decision of the 19th century, his true significance can perhaps be glimpsed in the 1905 memorial published by the black Niagara Movement which stated: “Three Friends of Freedom – William Lloyd Garrison, Frederick Douglass, and Albion W. Tourgee.”
Born in 1838, Albion was the only surviving child of an Ohio Western Reserve farming family. His last name, “Tourgee,” was of French Huguenot patrimony while his middle name, “Winegar,” was derived from his mother’s Swiss maiden name. Bright and hardworking, he early-on exhibited an independence of thinking and doing that often irritated those around him. An avid reader and writer, Albion attended the Kingsville Academy in Ohio, where he met the charming Emma Lodoiska Kilbourne. Following two years at the Academy, he was admitted to the sophomore class of the University of Rochester, where he helped found the Wide Awake Club in support of the recently-minted Republican Party and its presidential candidate, Abraham Lincoln. Short of funds, the following year, in 1861, he withdrew and took a teaching position at the Wilson Collegiate Institute in Niagara County. When the Civil War broke out, the 23-year-old lad joined a New York volunteer regiment to fight in the Union army.
The enlistment was just in time for Tourgee to appear on the first Bull Run battlefield. His proclivity for accruing bodily harm (a childhood accident had resulted in Albion’s sporting of a glass right eye) then caught up with him. The iron-shod wheel of a rapidly passing gun carriage brushed his back, severely injuring him. Following recuperation, Albion returned to the fray as a lieutenant in an Ohio volunteer regiment. He was wounded during the Battle of Perryville, Ky, and the round would stay in his hip until it was removed later in his life. By then, he had gained a concern for the plight of the Southern blacks and narrowly escaped an insubordination charge for refusing to expel an escaped slave from his troop’s encampment. In January 1863, Albion was captured and held prisoner in Richmond’s infamous Libby prison. Exchanged after five months, he travelled back to Ohio where he married his sweetheart Emma Kilbourne, who, in 1870, would become the mother of his daughter Aimee and a wifely font of stability and encouragement for the rest of his life. He returned to his regiment and fought in the battles of Tullahoma, Chickamauga, Lookout Mountain and Missionary Ridge. Worn out, he resigned his commission in December 1863 due to his disabilities and was admitted to the Ohio bar the following year.
Reconstruction Efforts
The Civil War ended in April 1865 and in October, seeking a warm-climate remedy for Albion’s aching back and hoping for financial advancement, the Tourgees moved to Greensboro, NC. He was soon enmeshed, however, in a commercially struggling nursery investment. At that time, Albion also naively believed that, in defeat, the former slave owners and white supremacists of the South would freely unburden themselves of their reprehensible ideas and behaviors and work hand-in-hand with northerners, such as himself, to “reconstruct” Southern society. It would be done, he thought, through the immediate enfranchisement and unfettered economic advancement of the newly-freed slaves—two of the policy goals advocated by the Reconstructionist wing of the Republican Party. By then, the 13th Amendment freeing all the slaves had been added to the Constitution in 1865. However, as Albion observed, “the bulk of the Southern people regard the abolition of slavery only as a temporary triumph of fanaticism over divine truth,” that God would not permit “the establishment of any system which does not retain the African in a subordinate and servile relation.”
A realization came upon him that dreams of racial amity would go for naught, one reinforced when in 1866 a series of “Black Codes” emerged from unrepentant southern legislatures. The Black Codes of North Carolina denied blacks the right to vote, serve on juries and testify against whites. They restricted the movement of blacks into and out of the state, provided for the “apprenticing” of young blacks to former owners and prohibited interracial marriages. More ominously, in 1867, following a meeting in Nashville of white supremacists from the former Confederate states, the Ku Klux Klan was formed. That would unleash a reign of terror throughout the South aimed at intimidating the newly-freed blacks and their white supporters through beatings, whippings and murder, events which Albion would later detail in his 1880 book, The Invisible Empire.
Alarmed by this whirlwind of racist obstruction and malevolence, Albion embarked upon a lifelong attempt to set things right. In 1868, he became the strongest civil rights advocate in a convention assembled to re-write North Carolina’s state constitution. The new document rescinded the Black Codes and enfranchised the former slaves, which ostensibly broke the autonomous back of the state’s white landed aristocracy. Tourgee had been elected to participate in the convention following the publication of a broadside in which he said:
Voters of Guilford [County] . . . Old things are passing away. Slavery, that fed daintily upon your lives, has ceased to ask its yearly hecatomb of men and women. Wealth is no longer the great I Am, nor manhood a political cipher. “We the People” has a new signification. Do you choose to govern yourselves or be ruled by those who still crave the name “master?”
In that same year, Albion was elected by a majority of 25,000 votes to become a North Carolina Supreme Court judge with jurisdiction over eight counties. He had previously stated that in the judicial arena, “The sword of the law should divide unswervingly, the right from the wrong, and be wielded by an unshrinking hand”. In this, unlike so many other judges of the era who were “often corrupt or venal,” he was sincere. Although during his six years on the bench he was frequently confronted with disputants divided by race or class, he was noted for his impartiality and even-handedness. As William A. Devin has noted, “Those who intensely disliked him and all that he represented conceded his legal ability and judicial rectitude.”
By 1879, Albion had spent 14 years in North Carolina. Needless to say, many of the “Redeemer” advocates of his adopted state had continuously abhorred his presence. In 1867, the governor called him a “damnable Yankee carpetbagger” and a “vile wretch.” (Typically, Tourgee had named his house in Greensboro “Carpet-Bag Lodge.”) With the advent of the Klan, things got worse and the negative appellations turned into outright threats. When one of his enemies was “gracious enough to notify him that he was to be assassinated at a particular time” Albion armed himself. Wielding a pistol, he personally faced down that opponent. In 1877, the federal troops who had been protecting the blacks and their white supporters since the end of the war were pulled out of the South, an event which triggered an ominous turn of the tide.
Despite the ratification of the 14th and 15th Amendments in 1868 and 1870, which optimistically enshrined the equal-protection and the right-to-vote clauses, respectively, by the late 1800s, the Southern white oligarchs and their white supremacist cohorts were back in power. The midnight era of Southern “Jim Crow” laws and segregationist mandates had arrived. Tourgee understood the import of that withdrawal, saying:
Twelve years from the day when Lee surrendered under the apple tree at Appomattox, there was another surrender and the last of the [state] governments organized under the policy of reconstruction fell into the hands of those who had inaugurated and carried on war against the Nation; who had openly opposed the theory of reconstruction, had persistently denied its legality or the binding nature of its promises, and had finally, with secret, organized violence, suppressed and neutralized the element on which it had depended for support. Yet the Nation looked on without wonder or alarm . . . [and with] more than tacit approval of the result.
Throughout his stay in North Carolina, Tourgee had been fearless, “excoriating from the bench and in published articles” the white supremacists and Klansmen he encountered, but as time went on his fear for the safety of his wife and daughter intensified. In 1879, then, the Tourgees headed out for safer and hopefully greener pastures to Denver. There, Albion assumed the editorship of the Denver Evening Times and invested heavily in silver mine futures. He also embarked on wide-ranging travels, touring the lecture circuit and attending civil rights conventions around the country. Then, in 1881, he settled in Mayville, having purchased his Italianate dream home near the shores of Chautauqua Lake. He named it “Thorheim,” Nordic for “World of Strength.”
Tourgee’s Mayville home, Thorheim.
McClurg Museum
Albion in his Thorhiem office, ca 1890.
Chautauqua County Historical Society
A Move to Chautauqua County
By then, Albion’s financial situation would have been perilous, his massive silver mine investments having failed spectacularly. He was saved, however, when his admirable writing abilities began to bear financial rewards in the shape of several best-selling “Reconstruction” novels. In an 1866 Pennsylvania speech Albion had presciently said “The enemy whom we had thought we had routed has merely executed a flank movement . . . [and] a Reconstructionist is considered a fool.” Thus came about the title and theme of his 1878 novel, A Fool’s Errand, authored anonymously “By One of the Fools.” It was essentially an extended discourse on the failures of the attempted reconstruction of Southern society, cloaked in the garb of a romantic novel. Fairly autobiographical, the lives of its carpetbagger hero (the “fool”), his devoted wife, a newly-freed black compatriot and several unrepentant racist neighbors are given full attention. Tourgee’s expository asides, however, are more enlightening about what went on than the fictional dialogues. For example:
You must remember . . . that neither the nature, habits of thought, nor prejudices of men, are changed by war or its results. The institution of slavery is abolished; but the prejudice, intolerance, and bitterness which it fostered and nourished, are still alive, and will live until those who were raised beneath its glare have moldered back to dust. A new generation – perhaps many new generations – must arise before the prejudices, resentments, and ideas of slavery, intensified by unsuccessful war, can be obliterated.
A Fool’s Errand was warmly received and has retrospectively been called “the Uncle Tom’s Cabin of the Reconstruction Era.” Its success called forth another Tourgeean contribution to the genre, Bricks Without Straw, in 1880. Its title was an allusion to the Biblical tale in which Pharaoh’s slaves were constrained to make bricks out of clay without the necessary admixture of straw. Likewise, in the telling of this tale, the freedmen of the post-Reconstruction South were denied the help of a necessary ingredient for success, a benevolent government. This second novel focuses on a group of North Carolina freedpeople, who attempt to set up a life for themselves until the Klan and its allies essentially return them to an enslaved condition.
Tourgee’s two Reconstruction-era novels became best-sellers and detailed the failure of the Reconstruction effort.Credit- Author’s collection
This societal reversion, Albion argued, had resulted not only from the North’s emergent laissez faire ethos, but also from “the unequal contest of poverty, ignorance and inexperience against intelligence, wealth, and skill.” “The hands could be unshackled by a constitutional amendment,” he noted, “but the heart and brain must have an opportunity to expand before the freedman could be capable of automatic liberty.” To Albion, then, the danger was abundantly clear and the remedy readily at hand:
The fruitage of slavery has been the ignorant freedman, the ignorant poor-white man, and the arrogant master. Now let the Nation undo the evil it has permitted and encouraged. Let it educate those whom it made ignorant. It is not a matter of favor to the black, but of safety to the Nation. Make the spelling-book the scepter of national power. Educate the voter because the Nation cannot afford that he should be ignorant. Do not try to shuffle off the responsibility, nor cloak the danger. Honest ignorance in the masses is more to be dreaded than malevolent intelligence in the few.
In fact, Albion paid more than lip service to this view. In 1873, while in Greensboro, he had founded a normal school for the preparation of freedmen and freedwomen to become teachers. Today, it is known as Bennett College.
Plessy v. Ferguson
Historically, “Louisiana Creoles” have been identified as a “mixed-race ethnic group derived from European [usually French] and African or Native American Indian intermarriage.” As such, in the 1800s, they were called “Creoles of color.” They were also designated as “free persons of color,” having been granted free-person status by the Louisiana Supreme Court in 1810. Highly educated and economically well-off, the New Orleans Creole community became alarmed when the Louisiana Separate Car Act was passed into state law in 1890. It mandated that “all railway companies carrying passengers in their coaches in this State shall provide equal but separate accommodations for the white and colored races.” The Creoles instantly recognized the act for what it was, a direct threat to their liberties. They formed a committee of concerned citizens, which enlisted Albion Tourgee to represent them in a court trial to test the legality of the act.
Albion advised the committee to assign an “octoroon,” a person who is one-eighth black, seven-eighths white by lineage, to the test event. He did this knowing that railway conductors were tasked with separating passengers by race and that a typically-light-skinned octoroon would appear “white” by their standards. Homer Adolph Plessy, an octoroon shoemaker, volunteered. On June 7, 1892, Plessy was arrested and jailed for travelling in a whites-only railcar when the conductor involved was purposefully informed in advance that Plessy was not “white.” Plessy’s case was heard by a local judge, John Howard Ferguson. Ferguson ruled that “Louisiana has the right to regulate railroads within its borders,” and that Plessy was subject to a fine or imprisonment. An appeal to the Louisiana Supreme Court upheld Ferguson’s decision, opening the way for adjudication before the United States Supreme Court. Thus, on April 13, 1896, Albion Tourgee, having travelled from Mayville to Washington, D.C., appeared before the Supreme Court on behalf of the Louisiana Creoles in the case of Plessy v. Ferguson. A typed copy of his brief before the court resides in the Chautauqua County Historical Society archives in Westfield. Typed out by Emma Tourgee, it was referenced by Albion during his oral arguments before the Court. In it he says, “This whole [Louisiana Separate Car Act] statute is but a machine to effect the compulsory assortment of passengers on the line of color.”
Now, it would be clear to most that the Separate Car Act, with its “equal but separate” segregationist mandate, had been used to selectively arrest and convict Homer Plessy in violation of the 14th Amendment of the U.S. Constitution, which says in part, “No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Plessy, a “colored” man, had been forced off a whites-only railcar. In his brief, however, Albion made an arresting point. He argued that both “colored” and “whites” were being discriminated against under the terms of the Separate Car Act, saying:
. . . it makes no difference in the world whether the relator [Plessy] is “white” or “colored”, an immaculate Caucasian or an indistinguishable compound of all the races of the world. When he is charged with crime, his liberty invaded, arrested and imprisoned for violating an act whose very essence is to establish an unconstitutional distinction it makes no difference whether he is a white man in the “Jim Crow” car or a colored man in a white car he has a clear and unmistakable right to appeal to this court for protection.
In conclusion, Albion said, “such a law is in violation of the XIV Amendment and void in consequence.” Years earlier, he had said “I shall continue to act upon my own sense of Justice. I pride my own self-respect too highly to do otherwise, and believing as I do that justice should at least be ‘color blind,’ I shall know no man by the hue of his skin.” It can be seen that Albion had applied his principle of “color-blind justice” while arguing the Plessy case before the Supreme Court. In an April 18, 1896, seven-to-one decision, however, the Supreme Court ruled against Albion Tourgee’s appeal on behalf of Homer Plessy and the Louisiana Creoles, saying:
So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with references to the established usages, customs, and traditions of the people, with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable.
In the Court’s eyes it all boiled down, then, to the “comfort” of the Louisiana white supremacist ruling class through the enforced maintenance of “public peace and good order” by those same overlords. In what is now called his “Great Dissent” to the Plessy verdict, Justice John Marshall Harlan noted that “in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is colorblind and neither knows nor tolerates classes among citizens.”
The issuance of this ruling in 1896 would justify the abusive usage of the “separate but equal” doctrine throughout Southern society for decades to come. Things were never “equal,” but always unequal to the detriment of the Southern blacks. Although expected, given the makeup of the Supreme Court at that time, the ruling left Albion exhausted. In fact, his life by then had become alarmingly difficult. He had expended an enormous amount of energy as a journalist writing a column in the Republican-leaning Chicago Daily Inter Ocean newspaper. For 10 years, he had refereed numerous reader submissions arguing the pros and cons of black civil rights. In 1891, he founded and nursed into fruition the bi-racial National Citizens’ Rights Association, one of the earliest civil rights groups to come into existence. He had also attempted a failed excursion into the publication field with his owner-editorship of a weekly illustrated magazine, The Continent. Published for two years (1882-1884), The Continent fielded submissions by women artists, literary notables and scientists. Subscriptions faltered, however, and it was a severe financial drain that ate alarmingly into Albion’s book royalty savings.
By 1897, the Tourgees were practically bankrupt. That year, however, Albion rented out Thorheim and he, Emma and Aimee packed their bags and headed to Bordeaux, France, where he had been appointed U.S. Consul by President William McKinley. (Note the year 1897, and that the end-date on the historical marker at Thorheim is 1890. The sign is off by seven years!) In that less-stressful post, Albion would receive a moderate but welcomed steady income that would sustain the family until his death in 1905. (Born in 1840, Emma would pass on in 1915.) From Bordeaux, his ashes were returned to Mayville, where they were interred in the local cemetery. Memorial services held at Thorheim saw the attendance of a multitude of black and white civil rights luminaries, there to pay their respects to the greatest civil rights advocate of the Reconstruction era, Albion Winegar Tourgee.
Albion Tourgee’s tombstone in the Mayville Cemetery.
McClurg Museum
Proclamation by the Christian culture congress of the Michigan Street Baptist Church, Buffalo, on the occasion of Albion Tourgee’s death.
Chautauqua County Historical Society
About the Author
A frequent contributor to Western New York Heritage, Richard Waite is a retired teacher who taught history, psychology and sociology at Williamsville North High School. The author would like to thank David Gerber, Professor Emeritus of History, University at Buffalo, who sent the Waite locomotive down the Albion Tourgee track, and David Costello, Larry Jones, Dan Starr, Walter Sharrow, James Valone (d.) and Edward Dunn (d.), history professors emeriti, Canisius College, who placed the locomotive firmly on the twin tracks of historical inquisitiveness and historiographical competence.
