By Cecil Cunningham Hoge

It is not often that you can say that a relative of your family affected the course of history in the United States. My great grandfather, Milton Joseph Cunningham, did affect the course of history in the United States. His actions did not improve or help the United States. Rather, his actions, whether they were done in belief that they were right or as matter of his duty to his office, had a negative influence on the course of American history.

I am closely related to this man. That is why my middle name is his last name.

I do not say that my great grandfather did what he did in order to set back our history some 59 years, although his part in the famous case of Plessy v. Ferguson, had that effect. Nor is it to say that he was an a dishonorable or a racist person. His gravestone below says my great grandfather was “An honored citizen Louisiana”. From everything that I have read, Milton Joseph Cunningham was thought to be a fine man, a true gentleman and a hard-working and competent Attorney General of the State of Louisiana.

While it is clear that my great grandfather had a part in affecting the course of American history, it is also clear he was not alone in affecting the future of “separate but equal” laws in the United States. Many decisions, made by people in Louisiana and other states and by the judges in the Supreme Court of the United States, created this history.

For those of you who have not read my previous blog story about my great grandfather or who are not familiar with the landmark case of Plessy v. Ferguson, I will recount briefly some of the details of that famous legal case. There was a gentleman named Homer Plessy, who was 1/8 black, who boarded an interstate train in Louisiana and sat down in the “White’s Only” car of the train. When the conductor came by, Homer was informed that he had to go to the “Colored Only” car. Homer refused politely and after some discussion Homer was arrested and charged with violating a law of the State of Louisiana.

The case first went to a lower court in Louisiana where Judge Ferguson ruled against Homer Plessy – hence the name of the case, Plessy v. Ferguson. Then the case went to a higher court in Louisiana where the Judge Ferguson’s judgment was upheld. Then, because the ruling was still being challenged, my great grandfather, Milton Joseph Cunningham, the Attorney General of Louisiana at the time, wrote the legal brief for the State of Louisiana. That legal brief and all other papers relating to the case up to that point were sent on to the Supreme Court of the United States. Then, after reviewing the first two initial rulings in Louisiana and my great grandfather’s legal brief, the Supreme Court upheld the original verdict in a 7 to 1 ruling.

So, in truth, my great grandfather was only cog in a large wheel that rolled from Louisiana to the Supreme Court of the United States.

The story of this case did not end with the final ruling of the Supreme Court. In fact, the final ruling was to affect the history of the United States for the next 59 years. Because of the Supreme Court ruling, it became the foundation of many “Jim Crow” laws enacted in many Southern States. In addition, this ruling became the legal basis for “separate but equal” laws that applied not only to railroads, but also to restaurants, schools, state offices and public buildings. In addition, it must be said after this ruling was settled, there was a great increase in hangings, torture and harassment of black people.

It was only after the case of Brown v. The Board of Education was ruled upon on May 17, 1954 that the decision of Plessy v. Ferguson was finally overturned.

So, without exaggeration, it can be said that this case, affected our history and our approach to racial separation and integration from 1895 to 1954.

As mentioned, there were a number persons involved in the case of Plessy v. Ferguson. First of all, there was Homer Plessy himself who undertook to challenge the separate but equal ruling that was then affecting interstate commerce and railroads. But this case was more complicated than it might appear. For one thing, Northern sympathizers and many black people had wanted to change the existing “separate but equal” ruling for some time and in fact, the advent of Homer Plessy getting on a railroad and sitting down in the “Whites Only” car was a pre-planned action with the specific intention to overturn the “separate but equal” ruling that existed on railroad cars at the time.

The black people who planned this action and their Northern sympathizers, had been looking and trying to get the “separate but equal” law thrown out ever since the Emancipation Proclamation and the end of the Civil War. Several cases had already occurred and had been tried. In each case, the “separate but equal” law held up, despite challenges. In the case of Homer Plessy, the theory of the black people and their Northern sympathizers who organized this challenge, was that they would lose in Louisiana, but they would win in the Supreme Court. As mentioned above, it did not work out that way.

From everything that I have read, my great grandfather was an honorable man simply performing the offices of his position. Moreover, from what I have read, it seems clear he was also simply the product of his times and his experiences. That said, he did what he did.

I now have had a chance to read more about this ruling and the effect it had on our history. It is quite humbling to find out that I had a relative who I believe was on the wrong side of the argument. And it was also quite surprising to find out the Supreme Court, the highest court in the land, agreed with my great grandfather’s arguments.

In particular, I was interested to find out how my great grandfather came to argue for what seems to me to be “the wrong side of the argument”.

It so happens that I have cousin who is a lawyer. His name is Christopher Hoge and he is a well-known lawyer in Washington. When I wrote the first blog story, I asked Chris to read over what I had written to see if what I said seemed correct in stating the facts of the case. He had done that a few month ago before I posted my first blog story. At the time, he said that while he regarded my story as “wordy”, he thought that I wrote correctly about what actually happened. He then mentioned that he had a law clerk who might actually be able to dig up my great grandfather’s legal brief. I asked him to find it if he could, but at the time the law clerk was unable to find it.

Because I was kind of haunted by this story and because I recognized that this ruling had a huge impact on the state of segregation and integration in this country, I went on to do some more research to see what more I could find about my great grandfather’s involvement. In doing so I read an excellent book entitled, Plessy v. Ferguson by Steve Luxenberg. This book concentrated on the various persons involved in the case and a wide cast of characters it was.

There were the black activist community leaders in New Orleans. There were Northern sympathizers who helped plan the challenge to the “separate but equal” laws that were in existence at the time.

Some background may be useful at this point. As most people know, the Southern States had used a system of slave labor in order to create and build up the great plantations of the South. Colored slaves from Africa were brought over here in huge numbers from the 1700s on. In time, millions of slaves were brought in as the human property of other people. Slaves were not just brought into the South. For example, where I live, a gentleman named William Smith, better known as Tangiers Smith, came to this country and settled the land I presently live on in Long Island. In doing so, he brought 90 slaves with him.

Tangiers Smith was a pretty colorful individual himself. He had been governor of Tangiers for the British. When the folks of Tangiers became a little upset with that, they rioted and he had to leave. The Britich government apparently felt sorry for Tangiers and awarded him land on Long Island…specifically, Smith Point and a peninsula of land where I now live, Strong’s Neck. Tangiers not only came with 90 black slaves, he also brought the one and only carriage in New York State. Apparently he was kind of high style guy.

With the help of his slaves, he settled in Strong’s Neck for the winters and Smith’s Point in the summers. His family and their direct relations, the Strong’s, settled and farmed Strong’s Neck where I live. Some of his descendants still live here.

Of course, Tangiers Smith was not the only person to bring slaves to the North. In fact, before the advent of the Civil War, slaves were used in many parts of the North. So, I can say that both the North and South were affected by the influx of slaves from Africa and that is indeed is part and parcel of our history as a nation.

With that background I would now like to get back to my cousin and his legal assistant. From the “Plessy v Ferguson” book I was able to find a number designating the legal brief papers sent by my great grandfather to the Supreme Court. Armed with the document number, my cousin’s legal assistant was successful in finding a copy both of my great grandfather’s legal brief on the subject of Plessy v. Ferguson and the legal arguments presented in opposition by Homer Plessy’s lawyers. In order to have a clear idea of the two sides of this case, I read both the plaintiff’s brief and my great grandfather’s brief.

The first thing to mention that there are some stylistic differences between the two opposing legal arguments. The legal arguments for Homer Plessy were filed by his two lawyers – Albion W. Tourgee and James C. Walker. Walker was the basic legal advisor (a “just the facts, ma’am”, man, if you will) for the plaintiff while Tourgee was a more literary and romantic lawyer. That is a strange term for a lawyer I agree, but it fit Tourgee. Tourgee had been a soldier in the Civil War who, after the war, relocated to North Carolina where he was considered to be a trouble-maker, a carpet bagger and a fierce advocate for civil rights of black people.

Tourgee believed that the only solution for the South, if it was to be integrated back into the United States successfully, was a complete revamping of the educational system in the South and clear and unequivocal rights for black people. He became an ally to many black activists of the time and eventually was asked to assist in the defense of Homer Plessy. In addition, he was an active writer and novelist. He had a bestselling novel of the time called, “A Fool’s Errand, by One of the Fools”. It sold over 200.000 copies, which at the times was a huge success for a novel.

James C. Walker was more the nuts and bolts lawyer of the two, while Albion Tourgee was more the free thinker and revolutionary lawyer. Reading their arguments, it is not always clear what parts are Tourgee’s and what parts are Walker’s, but it seems fair to assume that greater the stretch of the arguments, the more Tourgee had to do with that position.

So here is my summary of the arguments of Tourgee and Walker:

They start out by saying that the Supreme Court has the right of “certiorari” – that is a writ or order in which a higher court reviews the decision of a lower court. So, in this case, what they were first arguing was that the Supreme Court, being the highest court in the land, could rightfully review and hopefully decide against the two decisions by the two lower courts of Louisiana.

They point out that Homer Plessy was not guilty of any breach of peace. He was not intoxicated and he was not causing any kind commotion. His sole act was to sit down in the “whites only” car and refuse to leave when the conductor informed him that he had to go to the “colored only” car.

They go on to argue that the Supreme Court should review and decide if a State has the right to require railroads to have two different accommodations for “the two races”. I would like to mention here that both legal briefs, that of Tourgee & Walker and that of my great grandfather Michael Joseph Cunningham, speak only of the ‘the two races”.

This is interesting to me because today in the United States we speak of and think of many races – blacks, whites, Asian, Hispanic, Middle Eastern, Indian, not to mention different religions – Christian, Jewish, Buddhist, Islamic, Hindu, etc. So, today, we think of many different races and many different religions, but in the bitter period after the Civil War, when the memory of brothers and sisters, white and black dying on both sides was still fresh and in the mind of all citizens, there seemed to be the assumption that there were only two races. I find that strange and somehow telling about the period.

In any case, Tourgee and Walker go on to argue that separating the two races is a violation of the 14th Amendment. If you do not know, the 14th Amendment was put in place to guarantee equality of all citizens and the civil rights of all citizens. So Tourgee and Walker were arguing that the very separation of races, though supported by some state laws, was a basic violation of the rights of any citizen, whether they be white or black or anything in between.

They went on to argue a number of other points: It was very difficult scientifically to determine the race on any passenger getting on a train. The State of Louisiana does not have the right to confer judicial functions on an officer of a passenger train. According to Tourgee, it was unconstitutional and void to give an officer of the railroad that power because that permits the imposition of punishment without due process. Homer Plessy’s lawyers go on to argue that the real purpose of the Louisiana law is to classify persons according to race and that the State does not have the right to do that. In doing so, the State is abridging the immunities and privileges of both the 13th and 14th amendments.

In case you are not aware of it, the 13th Amendent guaranteed the emancipation of all slaves.

So, Tourgee and Walker say the purpose of the “separate but equal” law is to discriminate between classes of people based on race and color. Tourgee and Walker were not arguing that the Homer Plessy was denied the right to choose separate but equal accommodations, rather they were arguing that Homer Plessy, as a purchaser of a first class ticket,  was denied the right to choose his accommodations. In other words, his first class ticket permitted him the right to choose his accommodations.

That was therefore, according to Tourgee & Walker, a violation of his 14th Amendment’s right to equal protection under the law. Tourgee & Walker point out that if a white passenger went to the “colored only” car, the white person would be punished according to this violation. Tourgee & Walker’s conclusion was that either way it is an unjust discrimination on account of color.

They sum up their position by asking the court to issue writs of prohibition and certiorari and reverse the earlier two rulings by the Louisiana Courts and Judge Ferguson.

Now we come to my great grandfather’s response.

He begins by saying the State (meaning the United States) has no right to overturn a ruling that was proper and correct. In his legal brief, Milton Joseph Cunningham, states that Homer Plessy is bound by “a good and valid statute of the State of Louisiana” and that Homer Plessy is bound by the law of the land to abide by it.

He points out that nowhere in the information against Homer Plessy was it said that Homer Plessy was a white man or a colored man, or that he belonged to the white or colored race. Nor was it mentioned anywhere in the judgment that the court filed that “the said Homer A. Plessy interposed, either pleaded, averted or admitted that he is a colored man or belonged to the colored race”. In fact, Homer Plessy declined to acknowledge that he was in any proportion a colored man.

Because he was not referred to as a white man or a colored man, “there is nothing in the prosecution against him instituted in the proceedings had thereunder which could or does raise any question under the constitution and the laws of the United States”.

So, my great grandfather argued that Tourgee and Walker could not make a claim that Homer Plessy’s 13th and 14th rights were violated since there is no mention in the two Louisiana State rulings that Homer Plessy was a white or colored man.

He goes on to say that a Writ of Error would be proper if the lower court had acted improperly, but since the court did not act improperly, it is not right for Tourgee and Walker to ask the Supreme Court to issue a Writ of Error.

My great grandfather then reiterates that the two lower courts did not in any respect violate either the 13th or the 14th Amendments. The existing state laws were in place regulating transport of passengers and the courts ruled according to the laws of the State of Louisiana. He says that railroad legally provided “separate, but equal” accommodations in both the “whites only” car and the “colored only” cars and should any passenger refuse to go to the car assigned to them, the conductor has the right to refuse to carry the passenger.

My great grandfather then cites the law first enacted by the State of Mississippi in 1888. It was this law that was the basis of the State of Louisiana’s law. He points out that the Constitutionality of the Mississippi law was challenged and it was upheld by the Supreme Court of the United States and ruled that Congress has no jurisdiction.

Upon appeal, the Supreme Court held that the “the statute of the State of Mississippi” does not violate the commerce clause of the Constitution. In other words, the State had the power to require that railroad trains to have separate accommodations for the two races and that the provision, as it affected only commerce within the State, was no invasion of the powers given to Congress by the commerce clause.

My great grandfather then went on to argue that “the denial to any person of admission to accommodations and privileges of an inn, a public conveyance or a theatre, does not subject that person to any form of servitude, or tend to fasten upon him any badge of slavery, even though the denial be founded on the race or color of that person.”

My great grandfather asks the question: “is it legal to separate passengers for any purpose because of race or color?”

His conclusion is that “A operation of passengers may be made solely on the ground of race or color as a reasonable regulation, provided accommodations equal in quality and convenience are furnished to both alike.”

He writes: “The Fourteenth Amendment is violated only when the States attempt by legislation to establish an inequality in respect to the enjoyment of any rights and privileges.”

As to Tourgee and Walker’s argument that the term “color” presents scientific and legal difficulties, my great grandfather argues that in this case the definition is clear and simple: “Color, especially in the United States, means belonging wholly or partly to the African race.”

On several occasions, my great grandfather describes Homer Plessy as a “contumacious passenger”, meaning that he was stubbornly disobedient of the existing law.

Interestingly, my great grandfather agrees with Tourgee and Walker that if a white man tried to enter the “colored only” car, the white man would also be guilty of violating the law and thus the law is equal in fairness of its application.

My great grandfather then cites a number cases that uphold the legal position of his legal brief.

He ends by saying:

“We earnestly maintain that the act in question, No. 111 of 1890, is a legitimate exercise of the police power; that it does not violate the 14th Amendment or any other part of the Constitution of the United States: and the plaintiff is not entitled to the relief asked.”

Respectfully submitted,

M.J. Cunningham, Attorney General of Louisiana.

To make a long story short, The Supreme Court reviewed both positions, that of Tourgee and Walker and that of my great grandfather, and ruled 7 to 1 in favor of my great grandfather’s position. As mentioned at the beginning of this blog story, this ruling had great consequences for whites and blacks in the United States for the next 59 years.

The Supreme Court, at the time of ruling, was one judge short and, as mentioned above, only one judge dissented. That judge was John Marshall Harlan. Harlan had grave doubts about the ruling and said so. Here most of what Judge John Marshall Harlan said about the Plessy v. Ferguson ruling:

“It was said in argument that the statute of Louisiana does not discriminate against either race but prescribes a rule applicable alike to white and colored citizens.  But this argument does not meet the difficulty.  Everyone knows that the statues in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.   Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travellers.  The thing to accomplish was, under the guise of giving equal accommodations for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches.  No one would be so wanting in candor as to assert the contrary.  The fundamental objection, therefore, to the statues is that it interferes with the personal freedom of citizens….If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each….

The white race deems itself to be the dominant race in this country.  And so it is, in prestige, in achievements, in education, in wealth, and in power.  So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.  But 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 in color-blind and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law.   The humblest is the peer of the most powerful.  The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved….

The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution.  It cannot be justified upon any legal grounds

If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race.  We boast of the freedom enjoyed by our people above all other peoples.  But it is difficult to reconcile that boast with the state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law.  The thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done….

I do not deem it necessary to review the decisions of state courts to which reference was made in argument.  Some, and the most important to them are wholly inapplicable, because rendered prior to the adoption of the last amendments of the Constitution, when colored people had very few rights which the dominant race felt obliged to respect.  Others were made at a time when public opinion, in many localities was dominated by the institution of slavery, when it would not have been safe to do justice to the black man; and when, so far as the rights of blacks were concerned, race guides in the era introduced by the recent amendments of the supreme law, which established universal freedom, gave citizenship to all born or naturalized in the Untied States and residing here, obliterated the race line from our systems of governments, national and state, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law….

For the reasons state, I am constrained to withhold my assent from the opinion and judgment of the majority.”

It seems clear, both by the history of what came after the Supreme Court ruling and by the prescient dissent of Judge John Harlan, that the final ruling of the Supreme Court resulted in a kind of over-turning of the 13th and 14th Amendments and a reversal of sorts of the very results of the American Civil War. Surely, black people were affected adversely by this ruling, surely it became an instrument of prejudice and oppression, surely it affected the course of history in this country.

Now, to another question, was my grandfather guilty of the wrongs that came out of this ruling? Was my family and myself also guilty of having a relative who supplied the legal brief that ended up being upheld by the Supreme Court?

My cousin, the lawyer, who helped me dig up the actual document submitted to the Supreme Court by both Tourgee & Walker and by Milton Joseph Cunningham, our great grandfather, has a clear opinion of this.

“The sins of the father (our great grandfather in this case) are not the sins of the son.”

Or put another way, we are not responsible for whatever some ancient relative of ours did who we never met and never influenced.  And surely, that is right in some sense.

But I disagree. I think in some sense, descendants are responsible for what their ancestors did. More than that, I think all Americans living today are in some sense, responsible for what came before them. It is, after all, our shared history.

And when you think of the present state of matters about race today, I think you have to say that all the problems, all the history of the past, all the events of past influences affect the present state of these matters today.

Yes, it is true that we have made many advancements in these matters, but it is also true that many of the issues and problems of yesteryear are with us this year.