How Albion Tourgée used the law against Klan terror in Reconstruction North Carolina — and paid for staying
This is the next installment of Courage and Consequence — a series about relatively unknown individuals in history who made courageous decisions under extraordinary pressure, and had to live with what followed. Albion W. Tourgée needs to be remembered.
In February 1870 they came for Wyatt Outlaw. Outlaw was the first Black town commissioner of Graham, a carpenter who built coffins and repaired wagons, a Union veteran who had organized the county’s Republicans. 
A mob of seventy men or more broke down his door, dragged him past his screaming sons and his old mother, and hanged him from an elm in the courthouse square.
They pinned a note to his body. Beware, ye guilty, both white and black.
Tourgée wrote to a friend in Washington, Senator Joseph Abbott, four days after Stephens died. The letter is a plain accounting of terror by a man who has stopped expecting help. He counted the dead by county, quota by quota, as if reading a butcher’s bill. And yet the Government sleeps, he wrote. Unless these evils are speedily remedied, I tell you, General, the Republican party has signed its death warrant.
And then, without drama, the sentence that tells you what it cost to stay: I have very little doubt that I shall be one of the next victims. My steps have been dogged for months.
A Fool’s Errand, By One of the Fools came out in 1879. It was the story of a Northern man who went south to remake it and failed, and it was barely fiction. It sold two hundred thousand copies. For a while Tourgée was famous and even rich, and he used the fame the way he had used the bench — to keep saying the thing no one wanted to hear.
Years earlier, from that North Carolina courtroom, defending a ruling that had enraged the Klan, he had written down a phrase.
Justice should be color-blind, he said; he would know no man by the hue of his skin.
He carried it the rest of his life. In 1896 he stood before the Supreme Court of the United States as the lead attorney for a man named Homer Plessy, and he put the phrase in his brief: the Constitution is color-blind.
He lost. Seven justices ruled against him and separate-but-equal became the law for two generations.
But one justice, John Marshall Harlan, took Tourgée’s phrase into his dissent, and the dissent outlived the ruling, and the phrase outlived them all.
Judge Albion W. Tourgée needs to be remembered.
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Sources: Dictionary of North Carolina Biography, ed. William S. Powell (University of North Carolina Press), entry by Otto H. Olsen; Otto H. Olsen, Carpetbagger’s Crusade: The Life of Albion Winegar Tourgée (Johns Hopkins University Press, 1965); Mark Elliott, Color-Blind Justice: Albion Tourgée and the Quest for Racial Equality from the Civil War to Plessy v. Ferguson (Oxford University Press, 2006); Albion W. Tourgée to Senator Joseph C. Abbott, May 24, 1870 (New York Tribune); North Carolina Department of Natural and Cultural Resources; NCpedia; Judicature (Duke Law).
Next in this series: Frances Ellen Watkins Harper — the poet who told the white suffragists, to their faces, that her sex would not save her if her race did not.
Charles C. Jett is the author of the Courage and Consequence series. A Naval Academy graduate and former Cold War submarine officer, he writes on leadership, history, and the decisions that define character at criticalskillsblog.com and civicsage.com.
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