Milton Joseph Cunningham – Attorney General of Louisiana & Landowner

This is a very old image of my great grandfather, Milton Joseph Cunningham – aka Joe Cunningham


By Cecil Hoge

I have to admit I did not see this coming. When I began writing this blog, I believed that my mother’s side of the family was the richer, more disreputable side of the family while my father’s side was the more respectable, more impoverished side of the family. That no longer seems to be the case. It seems that the more you mess around on a subject, the more you stumble on things that you did not know.

I knew, for example, that my grandmother, the mother of my father, was a Southern belle from New Orleans with politically incorrect views on race and family. That was acceptable to me because I did not share her views and she was my grandmother. I thought she was who she was and I was who I was.

I knew that she had grown up on a plantation with 5,000 acres and that before the Civil War they had slaves. I also knew that her father had been Attorney General and State Senator of Louisiana.

“Everyone said father would become Governor,” she used say in her slow and elegant New Orleans drawl, “Life is just so unfair, sometimes.”

My grandmother believed that when her father missed being Governor of Louisiana that was some form of rotten luck. I suppose it was, but there can be worse fates.

When I looked up my great grandfather, whose full name was Milton Joseph Cunningham, in Wikipedia, I found some other details of his life that were disturbing and more revealing.

My great Grandfather was born March 10, 1842. He went through the Civil War when he was in 18 to 22 years old. Apparently, my great Grandfather liked the ladies or he liked marrying ladies because he married four times. This came as a surprise and I do not remember being told anything about my great Grandfather having other wives. Apparently, he had two early marriages where his wives died after 4 or 5 years. He then went on to marry two other ladies. Milton Joseph Cunningham died October 19, 1916. Wikipedia lists his occupation is listed as attorney and landowner.

I had known all of the above, except the exact dates and the fact that he was married four times. What I did not know was who my great grandfather really was. And when I did find out more about my great grandfather, it came as both a shock and a surprise.

From Wikipedia I learned many things:

Joe Cunningham, as he was known, was one of 52 “Confederates” who were arrested and tried by federal officials during the Reconstruction Period. In the Civil War, he enlisted in the Second Louisiana Infantry and served from 1861 to 1865. Afterward, in the Reconstruction period, he was the chairman of the Natchitoches Parish Democratic Executive Committee. In 1868 he was the District Attorney of the 17th Judicial District. Then he became of the Chief of Police in Natchitoches and in that capacity worked to reinstate white supremacy. Yes, apparently, my great grandfather was a white supremacist. I am sorry about that, but I cannot change my family history. It is what it is.

In 1878, Joe Cunningham became a state representative and after that he served a four year term as a state senator. That was only the beginning of his career. In 1884 he was appointed to be Attorney General of Louisiana and he served in that capacity from 1884 to 1888. Then he took four years off and worked, I assume, as an independent lawyer. Finally in 1892, he again became Attorney General of Louisiana.

This is a picture of Homer Plessy, the subject of the landmark case, Plessy v. Ferguson.

It was in 1896 that as Attorney General of Louisiana my great grandfather wrote a legal brief for The State of Louisiana in a case called “Plessy v. Ferguson”. For those of you who do not know, this was one of the most famous legal cases in the United States. It established the “Separate but Equal” ruling that became the basis of legal segregation in the United States. This case involved a gentleman named Homer Plessy, who was 1/8 black and who sat down in the “white car” of a train. Homer was arrested and removed from the train. He brought a lawsuit against the State of Louisiana. Ferguson, was Judge John Ferguson for the State of Louisiana.

Judge John Ferguson ruled that the State had the right to take Homer Plessy off of the train and that he had to ride in the “Colored Only” car of the railroad. Homer Plessy then sought a writ of prohibition. That put the case in the hands of Louisiana State Court. And then, as mentioned, my great grandfather, being the Attorney General of Louisiana, wrote the legal brief that defended Judge John Ferguson.

In fairness, this case did not become law until it went on to the Supreme Court and was upheld as the law of the land in a 7 to 1 vote. That law remained in effect from 1896 until 1954, when it was finally over-turned in a new ruling called “Brown v. Board of Education”. That was another landmark ruling of the Supreme Court that essentially reversed the “Plessy v. Ferguson” ruling.

From my point of view Plessy v. Ferguson was a terrible ruling and it resulted in a kind of reversal of the outcome of the American Civil War. It was used as the basis for the justification of segregated schools. I am personally ashamed that my great grandfather wrote the original legal brief for the State of Louisiana, but as mentioned above, it is part of my family history and it is what it is. I would add that given the passage of time and differences between today and the 1890s, it is almost impossible to understand the reasoning behind my great grandfather’s legal brief or the raw feelings that were present in the times after the end of the Civil War.

At the time of the Civil War, New Orleans, the city where my great grandfather resided and worked out of, was the largest city in the South, having a population of 168,000 people.

Now it seems that my great grandfather was known to have many honorable and good traits. In the Wikipedia article on my great grandfather, it mentions what a hands-on kind of district attorney he was, how he prosecuted and prepared cases himself without the aid of assitants and how he did many things that were beneficial to the State of Louisiana, such as saving hundreds of thousands of dollars for the State and ruling against the State lottery, which was known to have been a corrupt institution stealing large amounts of money from the public. So there is good in the bad.

It is also important to realize that it was the job of my great grandfather to defend the ruling of Judge John Ferguson, so it is not clear that he had any choice in the matter or how exactly he felt about the merits or lack of merits of the case. His job was to defend Judge John Ferguson and the State of Louisiana.

Finally, it is important to remember what a great cataclysm the American Civil War truly was and how different the times of that period were from the times of this period. I can tell you from personally talking to my grandmother, the effects of the Civil War were permanently embedded in her very being. She took great care to act as a respectable Southern lady now living in New York and not to blame the North for the terrible defeat the South ultimately bore. It was only when speaking among family members that her true feelings about the Civil War became apparent. I remember she talked for hours about the injustices and hardships of the Civil War and how it affected her upbringing.

”Life is so unfair sometimes, don’t you know,” she would say, “Father was going to be governor and then it did’t happen and then everyone we lived next to discovered oil and we didn’t. Life is just unfair, sometimes, don’t you know.”

To be fair, my grandmother’s view of what constituted unfairness was quite different from most people. She was the product of where she came from. Growing up on a plantation with 5,000 acres when your father was attorney general of the State of Louisiana probably affected her point of view. And certainly growing up as a Southern belle in the Reconstruction Period in Louisiana, she was tainted by the many humiliations she thought her family endured. Losing their slaves, losing their way of life, having to accept life in the North…all must have come a shocks to her and her family.

Of course, that was her fate. She grew up in the South in a period when its history and its institutions had been severed and torn apart. Like the story of “Gone With The Wind”, everything that she and her family had known had been compromised and changed. Adding insult to injury she married a gentleman from fine Virginia family only to move directly to New York City, the very center of all that is evil and wrong about the North.

Of course, many people would consider my grandmother lucky and perhaps deserving of some loss. People in the North, myself included, would say that the Civil War in fact righted many wrongs and set our country back on the road to nationhood and greatness.

Learning about my great grandfather’s part in the landmark case of Plessy v. Ferguson was a shock to me. That case led to almost 70 years of segregation. It was a true reversal of the military outcome of the Civil War. You could say it was a case of lawyers making the law of the land. It led to almost universal segregation of schools in the South and it encouraged many terrible deeds, including brutal hangings and the torture of black people. Many black people suffered from this case for the next 70 years.

So how could of my great grandfather written a legal brief supporting Louisiana’s case against Homer Plessy?

I think that first you have to say and admit – it was times. Imagine, if you can, what the slavery period truly was. Slavery was quite literally the basis of the Southern system of plantations. Farming and the cotton industry that grew out of it probably would not have been possible without slavery. Imagine the many injustices that occured under slavery. Then imagine, as it did happen, that a Great War erupted and the South, the leading location of slavery, but not by any means the only location of slavery, lost the war and as a result the slaves were declared freed. That was the outcome. Then imagine that the people who lost the war were both bitter and defeated.

I think it is also fair to say that my great grandfather probably never imagined what his legal brief might lead to. Yes, he surely would have known that he was defending the State of Louisiana and the initial judgment of Judge John Ferguson and he probably knew and understood that this case would go on to the Supreme Court, as in fact it did.

What he could not have known is whether the first legal judgment of Judge John Ferguson would be upheld in the Supreme Court. Now, I did read in another book on the case of Plessy v. Ferguson that after my great grandfather wrote the legal brief he was invited to go before the Supreme Court and give oral comments on his brief and that he declined to do that. Why I do not know. Maybe he felt guilty about the legal brief. Maybe he felt too old to go to Washington and testify.

Perhaps most important of all, my great grandfather could not have known what the longterm and historical effect of this ruling might be. His job was to defend the verdict that Judge Ferguson gave. As to whether he thought or considered what the longterm implications of this landmark might be, it is impossible to know. What is certain is that at the time he wrote the legal brief is that it would have been impossible to predict the future verdict of the Supreme Court and the longterm results of that Supreme Court ruling.

Here I should give some background that I have only recently acquired about this case. The case itself was something of a setup job. Abolitionists, who before the war were actively working to free slaves, in the 1890s were actively trying to overturn the existing law that said blacks had to sit a special car. That was the intention of what became known as “Plessy v. Ferguson”.

So a group of former abolitionists got to together and decided that their effort to overturn the law requiring black to sit in a “colored only” train car would have a better chance if they found a black man who was only partially black and mostly white. So, they located Homer Plessy, who was 1/8 black and talked him into boarding a train, knowing full well that the conductor, if he recognized that Homer Plessy was partially black, would have to ask Homer to move to the “colored only” section of the train and if Homer refused, then the conductor would have to have Homer arrested.

Most importantly, Homer Plessy himself agreed to do this in advance and knew that the most likely outcome was that he would go to jail and the case would be later adjudicated in court. Knowing that all of this would most likely happen, Homer Plessy boarded the train and sat down in a “whites only” car. The conductor came by, recognized that Homer was at least partially black and said the he had to move. When Homer did not move, policeman were called onto the train and Homer was arrested.

Now the theory held by the abolitionists who had thought up this plan was that after Homer was arrested, they would defend Homer and he would win in the courts. They knew that he might not win in the State of Louisiana, but they felt confident if the case went to the Supreme Court, Homer would win in the Supreme Court and black people would never again have to ride in “colored only” cars. That was the theory. Unfortunately, as with all theories, until they are proven by fact, they are only theories.

It is important to realize that not only did the State of Louisiana win this case in the lower courts of Louisiana, but the Louisiana ruling also was upheld in the Supreme Court itself by an overwhelming 7 to 1 majority.

I am guessing that the 7 to 1 ruling says something about the mood and feeling in this country in the late 1890s. Without trying to shift blame or to say that my great grandfather was in any way right, I will say that it is hard to believe that the Supreme Court would have agreed with the lower court of Louisiana if there had not been some belief among the Supreme Court judges that the case should be upheld.

When you consider that most of the South and some of the North was built with the use of slaves, it also tells you something of the inheritance and the bond all of us have to the past. It is an unfortunate fact that this great country was built with the aid of unpaid slaves and indentured servants. It is also unfortunate that the arrival Europeans in this country resulted widespread movement and decline of American natives in this country.

This is all history and it is what it is. So you can say that the glories of Democracy and Freedom came in part from a heritage of slavery and prejudice and all were part and parcel of our new American Republic.

The realization that my great grandfather played a major role in the Plessy v. Ferguson ruling came as a shock. I had always heard that grandmother’s side of the family came from a prominent and very respectable family. And indeed they did. According to Wikipedia, the father of my great grandfather was most likely a preacher among many other occupations, including being a landowner and a lawyer.

It was and has been the other side my family…the long line of sea captains… that I always felt were the more disreputable. I was sure that if you traced their heritage back far enough I would find I was related to true pirates…men who murdered and plundered and did other outrageous acts, perhaps with the blessing of the King or Queen of England. I knew that my mother’s side of my family has a somewhat questionable history. I had already uncovered the fact that her relatives were sailing Clipper Ships back and forth from England to Asia in the tea trade. I surmised from that fact that it was quite likely that they also traded opium for tea.

So, now it would seem on both sides of my family, there was a hidden past that I could neither ignore nor be proud of. Of course, I could always choose to do what many families do in a similar situation…that is choose to forget about it and never speak about it.

That said, I think many people’s families may lead back to events and actions that they might not be proud of. I am guessing that all of us, high or low, share some element of family guilt, whether it be in this generations or many generations ago. It is helpful to think we are better people now. Of course, that is not always the case.

So what do we do when we encounter some things in our past that we are not proud of…some things that we may not wish to remember in our family history. I have thought about this. I think we cannot ignore or hide those things. I think we must fess up and understand that perhaps we all have elements in our past that might be tainted and that we all share histories that we may not be proud of.

It is in the nature of families to remember the best and forget the worst. That does not change where we may have come from. I suppose it is in our best interest not to dwell on the worst things, especially when they occurred before you were born at a time when you had no part in what happened. It was what it was and we are what we are.


About Cecil Hoge

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