Academic journal article
By Curtis, Michael K.
Constitutional Commentary , Vol. 13, No. 2
Albion Winegar Tourgee(1) (May 2, 1838-May 21, 1905) is the lawyer who brought (and lost) the landmark nineteenth century civil rights case challenging Louisiana's law segregating railroad cars. Since 1996 is the 100th anniversary of Plessy v. Ferguson (1896),(2) it is appropriate to remember the man who helped engineer the challenge.
History, as Sam Keen has said, provides a story that locates us in the concentric circles of the cosmos, the nation, and the family and that gives meaning to life. Stories are crucial to individual identity,(3) and stories about lawyers in American history are important to the identity of contemporary lawyers. Indeed, Tourgee's sense of history and of his place in a cosmic drama explain his extraordinary courage and persistence.(4) His understanding that Southern opponents of Reconstruction told themselves a very different story added depth to his Reconstruction novels. "A lawyer without history or literature," wrote Sir Walter Scott in Guy Mannering, "is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect."(5)
Albion W. Tourgee was a Northerner who emigrated to the South immediately after the Civil War - becoming a Republican activist, framer of the North Carolina Constitution of 1868, Superior Court judge, enemy of the Ku Klux Klan, and a supporter of equality for newly freed slaves. In 1879 he published a best selling novel on Reconstruction, left North Carolina, and, in the years that followed, published many less successful novels and much political commentary.(6)
Albion Tourgee was the only child of Valentine Tourgee, a farmer, and Louisa Emma (Winegar) Tourgee, who died when he was five. Born in Williamsfield, Ohio, he grew up both in Kingsville, Ohio, in the Western Reserve, a center of anti-slavery sentiment, and in Lee, Massachusetts, where he spent two years with an uncle.(7) Before the outbreak of the Civil War, he had written an essay critical of North Carolina's 1859 prosecutions of distributors of Hinton Helper's anti-slavery book, The Impending Crisis of the South.(8)
Tourgee entered the University of Rochester in 1859 and became active in campus Republican politics. With the outbreak of the Civil War, he enlisted as a private and became an officer in the Union army. Although his education had been interrupted by financial problems and the Civil War, the University of Rochester conferred a degree on him in 1862 in recognition of his military service.(9)
During the war, Tourgee received a serious spinal injury from which he suffered both temporary paralysis and a permanent back problem that plagued him to the end of his life. Once he had improved, he again enlisted and was later captured and confined in Confederate prisons and exchanged. He then returned to Ohio.(10) On May 14, 1863 he married Emma Doiska Kilbourne. He returned to the service and was present at campaigns in Tennessee where he received a further serious spinal injury.(11)
Tourgee saw the Civil War as a battle for national transformation. In a letter written from the field in 1863, he rejected the "oft repeated maxim of the Administration - `We are fighting but for the Union as it was'" as a "sublime hoax." He insisted instead, "I want [and] fight for the Union better than it was."(12)
Continuing difficulties with his spine and failure to achieve a hoped for promotion contributed to his resignation from the army in December 1863. He returned to Ohio, resumed legal studies begun during his earlier convalescence, and was admitted to the Ohio bar in 1864.(13) In 1865, partly on the advice of a doctor that he seek a warmer climate for his health, he and his wife moved to Greensboro, North Carolina. Tourgee was by this time a thoroughly radical Republican.(14)
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. …