Plessy V. Ferguson


All went according to plan. Desdunes was committed for trial to the Criminal District Court in New Orleans and released on bail. On March 21, James C. Walker, a local attorney associated with Tourgée in the case, filed a plea protesting that his client was not guilty and attacking the constitutionality of the Jim Crow law. He wrote Tourgée that he intended to go to trial as early as he could.

Between the lawyers there was not entire agreement on procedure. Walker favored the plea that the law was void because it attempted to regulate interstate commerce, over which the Supreme Court held that Congress had exclusive jurisdiction. Tourgée was doubtful. “What we want,” he wrote Walker, “is not a verdict of not guilty, nor a defect in this law but a decision whether such a law can be legally enacted and enforced in any state and we should get everything off the track and out of the way for such a decision.” Walker confessed that “it’s hard for me to give up my pet hobby that the law is void as a regulation of interstate commerce,” and Tourgée admitted that he “may have spoken too lightly of the interstate commerce matter.”

The discussion was ended abruptly and the whole approach altered before Desdunes’ case came to trial by a decision of the Louisiana Supreme Court handed down on May 25. In this case, which was of entirely independent origin, the court reversed the ruling of a lower court and upheld the Pullman Company’s plea that the Jim Crow law was unconstitutional in so far as it applied to interstate passengers.

Desdunes was an interstate passenger holding a ticket to Alabama, but the decision was a rather empty victory. The law still applied to intrastate passengers, and since all states adjacent to Louisiana had by this time adopted similar or identical Jim Crow laws, the exemption of interstate passengers was of no great importance to the Negroes of Louisiana, and it left the principle against which they contended unchallenged. On June i, Martinet wired Tourgée on behalf of the committee, saying that “Walker wants new case wholly within state limits,” and asking Tourgée’s opinion. Tourgée wired his agreement.

One week later, on June 7, Homer Adolph Plessy bought a ticket in New Orleans, boarded the East Louisiana Railroad bound for Covington, a destination “wholly within the state limits,” and took a seat in the white coach. Since Plessy later described himself as “seven-eighths Caucasian and one-eighth African blood,” and swore that “the admixture of colored blood is not discernible,” it may be assumed that the railroad had been told of the plan and had agreed toco-operate. When Plessy refused to comply with the conductor’s request that he move to the Jim Crow car, he was arrested by Detective Christopher C. Cain “and quietly accompanied the officer.” The New Orleans Times-Democrat remarked that “It is generally believed that Plessy intends testing the law before the courts.”

In due course Homer Plessy’s case became Plessy v. Fergiison . The latter name belonged to John H. Ferguson, Judge of Section A of the Criminal District Court for the Parish of New Orleans, who overruled the plea of Tourgée and Walker, the defendant’s counsel, that the Jim Crow law was null and void because it was in conflict with the Constitution of the United States. Plessy then applied to the State Supreme Court for a writ of prohibition and certiorari and was given a hearing in November, 1892. The court recognized that neither the interstate commerce clause nor the question of equality of accommodations was involved and held that “the sole question” was whether a law requiring “separate but equal accommodations” violated the Fourteenth Amendment. Citing numerous decisions of lower federal courts to the effect that accommodations did not have to be identical to be equal, the court as expected upheld the law.


“We have been at pains to expound this statute,” added the court, “because the dissatisfaction felt with it by a portion of the people seems to us so unreasonable that we can account for it only on the ground of some misconception.”

Chief Justice Francis Redding Tillou Nicholls, heading the court that handed down this decision in 1892, had signed the Jim Crow act as governor when it was passed in 1890. Previously he had served as the “Redeemer” governor who took over Louisiana from the carpetbaggers in 1877 and inaugurated a brief regime of conservative paternalism. In those days Nicholls had denounced race bigotry, appointed Negroes to office, and attracted many of them to his party.

L. A. Martinet wrote Tourgée that Nicholls in those years had been “fair & just to colored men” and had, in fact, “secured a degree of protection to the colored people not enjoyed under Republican Governors.” But in November, 1892, the wave of Populist rebellion among the white farmers was reaching its crest in the South, and Judge Nicholls’ change of course typified the concessions to racism that conservatives of his class made in their efforts to forestall or divert the rebellion. Nonetheless, at a further hearing Nicholls granted Plessy’s petition for a writ of error that permitted him to seek redress before the Supreme Court of the United States.

The brief that Albion Tourgée submitted to the Supreme Court in behalf of Plessy breathed a spirit of equalitarianism that was more in tune with his carpet-bagger days than with the prevailing spirit of the midnineties.