ESSAY - A Woman of Courage

Mary Victoria Cunningham Smith

By: Pen Bogert, The Filson Club

On May 8, 1870, a day described by the Courier-Journal as a “chilly, damp and disagreeable day, with an occasional shower,” Mary V. Cunningham and her six-year-old stepson, Gustavus Smith, paid the five-cent fare and boarded a streetcar owned by the Louisville City Railway Company. For reasons still unknown, the streetcar operator “expelled” them from the car at the corner of Eighth and Broadway Streets - eight blocks from their house on Green Street. This bold act and many others led to court cases that resulted in the African American community securing the right to sit and ride on streetcars in Louisville.

Mary Victoria Cunningham was born in Louisville in September 1842. Her father, James C. Cunningham (1787-1877) was born in Bermuda. He immigrated to the United States around 1835 and settled in Louisville. A prominent figure in Louisville’s free black community, he was a well educated and talented violinist and music teacher, who led one of the most popular cotillion bands in the city. Cunningham was at the center of a group of African Americans in Louisville who were active supporters of the Underground Railroad. He corresponded with the famous abolitionist Calvin Fairbank and was suspected, but never convicted, of helping at least five slaves escape to freedom.

Mary grew up in the shadow of her strong father who encouraged education and nurtured her musical abilities. She became an accomplished pianist and organist beginning her career as a music teacher. In 1869 she married Early Smith, a barber and saloon owner, and they moved in with her parents on Green Street, now called Liberty Street, between Sixth and Seventh. By 1870 James C. Cunningham had accumulated a personal estate of $4,000 and the young couple were well on their way in establishing their careers.

During this particular period, segregation in Louisville was rigid and pervasive — even more than the pre-Civil War Era. African Americans who attempted to exercise their rights under the 14th amendment (the right to equal protection under the law) and the 15th amendment (the right to vote) met an onslaught of new rules, laws and violence. The Ku Klux Klan and other vigilante groups committed acts of violence against African Americans throughout Kentucky and the south. African American families like the Cunninghams and Smiths, although financially secure, faced segregation daily, including the seemingly simple act of attempting to ride a streetcar.

On June 2, 1870, Mary and her husband made their mark on Louisville and perhaps national history by filing the first civil rights suit against a Louisville streetcar company. The Louisville Commercial newspaper noted that this was “an important suit” and test case that would decide whether common carriers “have the right to expel...well-disposed persons on account solely of their color”. Three white attorneys, including James Speed, who had served as Attorney General under President Lincoln, represented the Smiths and was assigned to Judge Bland Ballard of the U.S. Circuit Court who was scheduled to hear their case on October 28, 1870.

During the summer of 1870 African American men continued to be “expelled” from the streetcars. In July, Senator Hiram Revels of Mississippi, the first African American elected to the U. S. Senate, was forced off a streetcar at thirteenth and Market Street. This and other acts mobilized the community and in October, a movement led by Quinn Chapel A. M. E. Church and other African American community churches organized to formally protest their treatment to the three streetcar companies. A decision was made to directly challenge the companies through civil disobedience and, like the Smiths, to test the companies’ rules in the U. S. Courts. The Central Passenger Railway Company was selected as the target because it prohibited African American men from riding their cars. On Sunday, October 30th, after a mass meeting at Quinn Chapel, Robert Fox, his brother and employee boarded a streetcar at Ninth and Walnut Streets. A large crowd gathered and the men were forced off the car and arrested. They were tried in Louisville City Court, where they were found guilty and were fined $5.00 each. Fox and the others sought relief in U. S. District Court and filed suit, claiming protection under the recently passed federal enforcement acts. The case of Robert Fox vs. Central Passenger Railway Company became a landmark civil rights suit.

On October 28, two days before Fox’s case and act of civil disobedience, and Early Smith vs. Louisville City Railway Company case was heard in U. S. Circuit Court; the Smiths filed their petition and the case was continued. Early Smith and Wife vs. Louisville City Railway Company, although held in different U. S. Courts, both were heard by Judge Ballard. The docket of the U. S. Circuit Court was clogged with civil rights cases concerning violence against African Americans throughout Kentucky. This would be the first of many long delays for the Smiths. The Louisville City Railway Company pleaded not guilty to the charge on March 21, 1871, and on March 24th the Smiths’ case was continued until May 2nd. Between March 24th and May 2nd, Mary gave birth to their first child, Richard T. Smith, and her need to care for their child, along with the increasing number of civil rights cases on the U. S. Circuit Court docket, delayed their case until 1872.

Meanwhile, the Fox case was moving swiftly toward a conclusion in U. S. District Court. On May 11, 1871, Judge Ballard ruled that common carriers could not exclude persons on the basis of race, and Fox and the others were each awarded $15.00 in damages. African American men immediately tested the ruling by boarding streetcars of the Central Passenger Railway Company. Many were forced violently off the cars and charged with disorderly conduct. Fearing an escalation of violence, the Mayor and others met with officials of the three streetcar companies and requested them to comply with the ruling of the court. After a period of several weeks, the companies capitulated and African American men were no longer prohibited from riding inside the cars.

It would have been easy for the Smiths to settle their case since the May 11th decision in effect was also a ruling in their favor. Instead, they pressed on and the case was again delayed for months. Finally, on October 17, 1872, Judge Ballard ruled in their favor and awarded the Smiths damages of one cent plus the costs they incurred in bringing their suit. Their original request had been for $10,000 in damages against the streetcar company. The violence of May 1871 was old news by now and the streetcar companies had been cooperative for well over a year. As a result, when the Smiths finally won their case it was not reported in any of the Louisville newspapers!

The Cunninghams and the Smiths continued to play prominent roles in Louisville’s African American community. James R. Cunningham’s band became one of the most popular in the region and he later performed in London for Queen Victoria. Mary V. Cunningham Smith became one of the premiere organists in the city. In 1880 and 1881 she performed in major music festivals sponsored by the Colored Musical Association of Louisville. She continued to teach music and in 1895 she opened her house to ten veterans of the U. S. Colored Troops who had come to Louisville for the annual encampment of the Grand Army of the Republic.

After the death of her husband in 1896, she lived with her son, Richard, and worked as a domestic. In the early 1900’s they moved to Covington, Kentucky, and her son became a prominent banker in Cincinnati. Mary V. Cunningham died at her son’s home in Covington on December 13, 1919. She was buried in Eastern Cemetery in Louisville in the Cunningham/ Smith family plot.

Almost fifty years had passed since that chilly day in 1870 when Mary V. Cunningham chose to stand up for her rights. Although much had changed, and more remained the same, it must have given her no small satisfaction to win that penny in 1872. The courageous first steps taken by the Smiths and Fox brothers set important precedents for those that would follow.

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