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Sunday, December 17, 2006

Albion Tourgée and Samuel Field Phillips

We learn via Kevin Levin's Civil War Memory blog that there's a biography of Albion Tourgée just out from Oxford. It's about time for an update on this important civil rights figure. Chief architect of the claims brought by Homer Plessy to the Supreme Court, he argued that the Constitution was "color-blind," a notion that Justice Harlan picked up in his vigorous dissent.

Tourgée's stint in Greensboro from 1865 to 1876 as a Union idealist (a/k/a/ "carpetbagger") who became a local judge and civic leader lends his story regional interest; even closer to home is his influence on a Chapel Hill man, Samuel Field Phillps. Phillips was one of Cornelia Phillips Spencer's brothers. Spencer, the woman who famously "rang the bell" in celebration of the reopening of UNC in 1875 after its closing during Reconstruction, is controversial for her part in supporting the Democratic establishment both throughout and after the Civil War. In 2004 a conference was held on the UNC campus to reconsider the Reconstruction period of UNC's history and, more particularly, to revisit the appropriateness of the "Bell Award" given annually in recent years to distinguished UNC women.

Chancellor Moeser subsequently discontinued the Bell Award (conversations with potential winners indicated more trouble ahead: a number of them said they would not accept it). But Spencer Residence Hall remains (so that we might "tell our story better," said the chancellor earlier this year), and Spencer's legacy remains mixed. As Harry Watson said in his remarks at that 2004 conference, "the antebellum University of North Carolina was part of a massively unjust society." It's a common defense of the defenders of the old South, Spencer among them, that they were products of their time, that their culture left them without resources for thinking around or against the racism that chained them so thoroughly.

But as Watson also notes, this defense fails in Spencer's case. It fails by way of her brother's example.

Samuel Phillips started out much like any Southern partisan. A Chapel Hill lawyer and a Whig legislator in the 1850s, he hoped a civil war could be avoided; when it was not, he was as enthusiastic as any for the war. He even supported the prospect of continued fighting after Gettysburg and Vicksburg. But by December 1864 he was aligned with other North Carolina legislators who favored suing for an immediate peace. Even this position, though, was one ultimately aimed to preserve the status quo: it was based in a "belief that negotiated peace would prevent immediate emancipation," writes Robert D. Miller in a 1981 article on Phillips. (A "delusional" belief, as it turned out.)*

At the 1866 constitutional convention Phillips, by then Speaker of the House, worked to enact a strict Black Code that allowed freedmen no political rights but did extend to them certain property rights. When the voters rejected this constitution as too liberal, Phillips, convinced that a less generous approach would invite military intervention, retired, for a time, from public life. (Indeed in 1868 "blacks, scalawags, and carpetbaggers--fulfilling Phillips's prophecy--wrote a remarkably democratic state constitution that included full political rights for blacks.")

By 1868, according to Miller, Phillips "had reassessed the state's relationship to the federal government and had accepted the legitimacy of Congressional Reconstruction." The South had lost; he "acquiesced to the constitutional reality of black suffrage."

Phillips was among North Carolina moderates who actually voted a Republican ticket in 1868 rather than endorse the Democrats' outrageous tactics to keep the black vote in check. But he still viewed black enfranchisement as a matter of expediency rather than justice. The credit for his final transformation belongs to Albion Tourgée, who by 1868 was a superior court judge in Guilford County. Writes Miller, "Tourgée's fine legal mind and his impartiality on the bench in the face of increased Klan hostility enhanced Phillips's admiration for the man and fostered a friendship that would culminate in collaboration on the Plessy case in 1896."

In 1870 Phillips ran as a Republican for state attorney general. He lost, of course, but from his new Republican loyalty "there would be no backsliding." In 1872 President Grant appointed him solicitor general of the United States. As advocate for the federal government's positions he "wrote consistnetly strong briefs . . . based on egalitarian principles."

Plessy v. Ferguson was not the first case in which Phillips' work got Justice Harlan's attention. In the Civil Rights Cases of 1883, his task was to defend the Civil Rights Act of 1875, a law that required equal access to privately owned "public accommodations." Taking the then logical but now inconceivable position that the 13th Amendment's prohibitions of "slavery [and] involuntary servitude" were to be read expansively, he argued that the legislation was protected by it as well as the 14th amendment. Writes Miller,

As Harlan was to do later in his [dissenting] opinion, the North Carolinian returned to Blackstone to argue that the power of locomotion [i.e., mobility] was an essential right of freedom. Slavery had violated that right, and the institution's abolition, therefore, ostensibly freed blacks from impositions on their freedom of movement. Locomotion, however, should not be defined merely as the absence of confinement, Phillips continued, but rather as an expansive right which included mobility on highways, common carriers, and freedom to use public inns. Racially motivated restrictions on such mobility were clear violations of the Thirteenth Amendment, constituting badges of servitude. If mobility were not equally accessible to all citizens, he warned, "the 'pursuit of happiness' will degenerate into a monopoly."


Phillips was clearly arguing against the grain of the Court and public opinion, but his efforts did not go unnoticed by an old friend. In 1885, by which time he was a private attorney, Tourgée asked him to help with Homer Plessy's case. Again he argued both the 13th and the 14th Amendments as guarantors of the right to travel without discrimination. The combination of his legal theories and Tourgée's powerful rhetoric certainly worked on Justic Harlan, though not, unfortunately, on a majority of the Court.

Philips outlived two wives, living long enough to cheer Booker T. Washington's dinner in the White House with Theodore Roosevelt. He'd traveled a long way from Chapel Hill. It'll be interesting to see what else we can learn about him from the new biography of Albion Tourgée.

*"Samuel Field Phillips: The Odyssey of a Southern Dissenter," North Carolina Historical Review 43 (1981): 263-80, by Robert D. Miller, assistant professor of history, Bennett College, Greensboro, N.C.