In 1880, when John B. Cassoday of Janesville joined the Wisconsin Supreme Court, the state was moving toward a pluralistic society. Germans and other European immigrants were gradually wresting a share of power from the New York and New England immigrants who had dominated Wisconsin during its early years.¹ Wisconsin women were in the middle of a campaign for suffrage and enhanced property rights that would continue until the 1920s. But white males of old Yankee stock still dominated Wisconsin's political and legal discourse, as they had done since statehood. The court that Cassoday joined was composed entirely of Yankees; a later commentator "doubt[ed] whether there has ever been a court ... in which membership was more homogeneous."²

Cassoday did not leave an enduring personal mark on Wisconsin's legal system, but he is important as an exemplar of the Yankee outlook and its influence on the development of Wisconsin law. The New York and New England immigrants who dominated Wisconsin's 19th century bench and bar were imbued with much of the Puritan sensibility of their forebears. This sensibility led them to view challenges to the existing order with skepticism in some cases, but it also impelled them to encourage all individuals, Yankees and non-Yankees alike, to reach their maximum potential.³ The Puritan sensibility has been comprehensively described by the cultural historian David Hackett Fischer, and Fischer's analysis provides a useful key to understanding Cassoday and his colleagues.⁴

Limited Fair Play for Women: The Goodell Case, Marital Rights, and Suffrage

Cassoday was born in upstate New York (an area dominated by New England immigrants) in 1830. Belief in education was a core Yankee value,⁵ and Cassoday received an unusually thorough education for his time, studying first at the University of Michigan and then at the Albany Law School, one of the leading law schools of its day. After being admitted to the bar, Cassoday concluded that the new states in the Midwest offered less competition and more professional opportunities than did his home state. He moved to Wisconsin in 1857 and settled in Janesville, where his talents soon earned him prominence.⁶

Cassoday was more interested in law than politics, though he was active in both. He developed a successful practice in Janesville and devoted much of his spare time to writing a treatise on wills. He became active in the Republican party; he served in the 1865 and 1877 legislatures and staked a minor claim to fame as one of the delegates who engineered James Garfield's nomination at the 1880 Republican presidential convention. However, he gave no sign of aspiring to higher office.⁷

Cassoday first gained statewide prominence in connection with women's rights. The Yankee view of this issue was complex. According to Fischer, Puritan wives were expected to defer to their husbands within the family structure, but they were treated as fully equal in the "soul's vocation" and in church affairs and enjoyed extensive legal and social protection against husbandly abuse of power. The "delicate complexity" of this view was perhaps best expressed in the couplet that the Puritan poet Anne Bradstreet addressed to men: "Preeminence each and all is yours/Yet grant some small acknowledgment of ours."⁸ Puritans also abhorred any waste of time, energy, or talent as a sin against God; ultimately, this worked in favor of talented women.⁹

In 1875, Lavinia Goodell put the Yankee outlook to the test when she became the first Wisconsin woman to apply for admission to the bar. Goodell acted as part of a larger post-Civil War campaign by American feminists to expand married women's property rights and obtain voting rights and the right to practice learned professions. Lawmakers in Congress and northern state legislatures, many of them Yankees, rejected the feminists' suffrage demands as too radical for the times and too likely to draw resources away from the primary goal of black rights. But many lawmakers recognized that there was some force in the feminists' complaints and gave them a serious hearing. Midwestern lawmakers allowed women to join the bar in several states, beginning in Iowa in 1869.¹⁰

When Goodell brought the campaign to Janesville, she encountered less resistance than she expected. Local lawyers were bemused and privately questioned how well she would fare at the bar, but the general feeling was that she should be given a chance. Herman Conger, the local circuit judge, admitted Goodell to practice in his court. When Cassoday first met Goodell, several weeks after her admission, he reacted to her campaign with humor but also with acceptance.¹¹

In 1875, Goodell applied for admission to the bar of the Wisconsin Supreme Court. After Chief Justice Edward Ryan rejected her application,¹² Cassoday and his colleagues rallied to her support. The Yankee view of the matter contrasted sharply with Ryan's. The chief justice believed that admitting Goodell to the legal profession would be a "departure from the order of nature," which destined and limited women to homemaking and child rearing; but many of Goodell's supporters invoked the Puritan ideal of fulfillment of talent. One editorialist criticized Ryan for "excluding from the bar a citizen over twenty-one years of age, of good moral character learned in the law, and well qualified to practice, solely on the ground that the applicant is a woman. If her purity is in danger, it would be better to reconstruct the court and bar, than to exclude the women."¹³

In late 1876 Cassoday was elected to the legislature and soon afterwards was chosen to be Speaker of the Assembly. Goodell, sensing an opportunity, asked Cassoday to introduce a bill allowing admission of women to the bar. Cassoday did so, and he went further: he also introduced Goodell to potential supporters in the legislature and personally shepherded the bill through to passage.¹⁴ In 1879, Goodell renewed her application to the supreme court, and this time she was admitted: all of the justices except Ryan concluded that the new law settled the issue.¹⁵

Unfortunately for the women's movement in Wisconsin, the Yankee outlook, while tolerant of individual women who were determined to apply their talents outside traditional boundaries, did not extend to broad expansion of rights for women as a whole. In 1850 Wisconsin became one of the first states to enact a married women's property law, which moved away from the common law "marital unity" doctrine by giving married women the right to control and manage property that they brought to the marriage.¹⁶ This was consistent with the Puritan belief that couples should share assets within their marriage and that women should have legal safeguards against husbandly abuse.¹⁷ But during the next 30 years the supreme court consistently gave a narrow interpretation to the 1850 law and subsequent legislative attempts to expand women's rights.¹⁸ After Cassoday joined the court in 1880, he and his colleagues continued this pattern.

For example, in Fuller & Fuller Co. v. McHenry (1892),¹⁹ the court rejected an argument that the married women's property laws should be interpreted to allow wives to share control of businesses they operated jointly with their husbands. Cassoday and his colleagues expressed aversion to any reform that fundamentally threatened traditional family power structures, stating that such reforms would create "a possible means of disturbing domestic peace and confidence, or that [spouses] might become contentious litigants."²⁰ In a more notorious case, Duffies v. Duffies (1890),²¹ the court held that husbands could bring alienation of affection suits against their wives' lovers but that wives had no such rights. The court was unapologetic about its double standard: it explained that a wife "is purer and better by nature than her husband," that "he is exposed to the temptations, enticements, and allurements of the world," and that she "had reason to expect all these things when she entered the marriage relation."²² McHenry was consistent with the Puritan view that women should share influence within their marriages but should not dominate. Duffies is harder to explain: according to Fischer, the early Puritans viewed marriage as a covenant that, once broken, either spouse should have full power to end. The Duffies case is best regarded as an anomaly: the Wisconsin legislature recognized it as such by enacting a law in 1905 overturning the court's decision.²³

In 1885 the legislature allowed Wisconsin women to vote for the first time, in elections "pertaining to school matters."²⁴ The law did not make clear whether this meant women could vote for all offices at such elections or only for school offices. If the latter interpretation were to prevail, women would effectively be denied any right to vote because the legislature had not authorized the printing of separate ballots for school offices. Circuit Judge John Winslow of Racine (who later joined Cassoday on the supreme court and who will be profiled in a later article) adopted the more liberal interpretation of the law, but in Brown v. Phillips (1888) Cassoday, speaking for the court, reversed Winslow's decision and effectively denied Wisconsin women the ballot for another 15 years.²⁵

Cassoday's holding in Brown probably was motivated by deference to the legislature - specifically , a reluctance to risk expanding the suffrage in a way that the legislature might not have intended - rather than by his views on women's rights. Although his decision at first view appears inconsistent with his liberal attitude toward Lavinia Goodell, it is not: from the viewpoint of many Yankees, encouraging individual women to use their talents and protecting women in the marriage relationship were quite different from extending political rights to all women regardless of their talent. Partly as a result of this attitude, women did not gain full suffrage in Wisconsin until a women's suffrage amendment to the U.S. Constitution was ratified in 1920.²⁶

Fair Play for Non-Yankees: The Edgerton Bible Case

During his tenure on the court, Cassoday also had to wrestle with legal issues arising out of friction between Wisconsin's Yankees and European immigrants. The most important dispute between the two groups was the extent to which Wisconsin schools should be used to assimilate immigrant children into mainstream American culture - a culture that at the end of the 19th century still bore a distinct Yankee stamp.²⁷ A core Puritan belief was that education must be provided to all, regardless of background and class, in order to thwart the "chief project of that old deluder, Satan, to keep men from the knowledge of the Scriptures."²⁸ German immigrants also valued education, but they viewed it as a means of preserving their language and culture in America, not as a route to assimilation.²⁹ Many 19th century Yankees suspected "the old deluder" also was behind this sentiment.

During the 1870s and 1880s, the Germans established an extensive network of parochial schools in Wisconsin. Many of these schools conducted classes in the German language exclusively, and German Catholic schools used the Douai version of the Bible rather than the King James version. As the parochial school network spread, many Yankees began to resist it and stepped up their efforts to encourage assimilation.³⁰ In 1883 the legislature prohibited the use of school textbooks that tended to inculcate sectarian ideas. However, most Yankees regarded generic Protestant prayer and instruction as nonsectarian, and readings of the King James version of the Bible were a regular practice in many public schools.³¹

In 1890 Humphrey Desmond, a Catholic lawyer and editor, challenged use of the King James Bible in the public schools of Edgerton, a small town near Cassoday's home in Janesville. Desmond argued that the practice violated the Wisconsin Constitution's prohibition of "sectarian instruction" in public schools³² and the "separation" clause that provided that no person shall "be compelled to ... support any place of worship."³³ Similar challenges to public school Bible readings had been rejected by courts in other states; those courts implicitly accepted the view that generic Protestant prayer and instruction was not sectarian.³⁴ However, Cassoday and his fellow justices disagreed: in the Edgerton Bible case (1890), they held that reading the King James Bible in public schools violated the sectarian instruction clause.³⁵

The court was careful not to open itself to charges of irreligion: it held that general study of religion was permissible in the schools because all religious sects believed in God.³⁶ But the court presented a new vision of education that applied a nonsectarian version of the Yankee educational ideal to all immigrant groups. "What more tempting inducement to cast their lot with us could have been held out to [the immigrants]," asked Chief Justice William P. Lyon, "than the assurance that, in addition to the guaranties of the right of conscience and of worship in their own way, the [public schools] were absolute common ground, where the pupils were equal, and where sectarian instruction, and with it sectarian intolerance ... could never enter?"³⁷

In a concurring opinion, Cassoday added that instruction in the King James Bible also violated the separation clause. Cassoday noted with pride that although many American colonies had an officially preferred religion, at independence they "proved to be sufficiently broad and liberal to exact nothing for themselves or their particular sect that they were unwilling to grant to every other citizen and his particular sect." Accordingly, said Cassoday, the objectors in the Edgerton Bible case, "being compelled to aid in such erection and support [of public schools], ... have a legal right to object to its being used as a place of worship."³⁸

Lyon's and Cassoday's opinions angered some Yankees, but the court's decision attracted favorable attention in legal circles throughout the nation. It is recognized to this day as a landmark American case on separation of church and state.³⁹ The Edgerton Bible case is also a Wisconsin cultural landmark because it represents the first important public break among Yankees over the traditional Yankee outlook. Why did Cassoday and his colleagues make the break? They did so in part because the concept of state-sponsored religions had been delegitimized during the Revolutionary era,⁴⁰ but also partly (and ironically) because of the Yankee outlook itself. The value that Puritans placed on education and on making maximum use of individual energies and talents helped shape the industrial revolution and the accompanying social changes of the 19th century, and as a result such values ultimately crowded out any lingering desire for religious and ethnic purity.

Robert LaFollette and his Progressive supporters came to power during Cassoday's final years on the court, and Cassoday and his colleagues spent much of their time considering the constitutionality of social reform legislation enacted by the Progressives.⁴¹ Unlike courts in many other states during the Progressive era, the Wisconsin Supreme Court almost without exception refrained from using the doctrine of substantive due process to strike down reform legislation.⁴² Cassoday was not a leader in shaping this pattern but he acquiesced in it, probably at least in part because his Yankee outlook accorded with the Progressives' efforts to improve the human condition. After Cassoday's death in late 1907, John Winslow replaced him as chief justice, and the court continued its policy of interfering with the Progressives' efforts as little as possible.

Conclusion

John Cassoday's views, like the views of his Puritan forebears, were a curious mix of conservatism and progressivism: of belief in individual self-determination (heavily qualified by the need to preserve family and social structures that would promote godliness) and of concern for the common good of all individuals. The Yankee viewpoint had played a major role in Wisconsin legal history even before Cassoday's time, for example, in Wisconsin's decision before the Civil War to espouse the free labor system and oppose slavery. Accordingly, it produced radicals like Byron Paine as well as moderate conservatives in the Cassoday mold.⁴³

The Yankee viewpoint also played an instrumental role in creating the mix of conservative and reformist sentiments that shaped Wisconsin's legal development after the Civil War and that has continued to shape our state's legal system to this day.⁴⁴ From a modern perspective, the record of Cassoday and his fellow Yankees in the late 19th century was far from perfect. But their viewpoint dominated the state for many years; on balance, it led to more good than harm; and one must study it in order to fully appreciate the character of our modern legal system. For those interested in that task, Cassoday's life is as good a place as any to begin.

Endnotes

¹ See Edward P. Alexander, Wisconsin, New York's Daughter State, 30 Wis. Mag. Hist. 11 (1946).

² John B. Sanborn, The Supreme Court of Wisconsin in the Eighties, 15 Wis. Mag. Hist. 3, 8 (1931).

³ David Hackett Fischer, Albion's Seed: Four British Folkways in America 13-206 (New York, 1989).

⁴ See id. at 13-206.

⁵ Id. at 130-34.

⁶ E. Ray Stevens, "John B. Cassoday," Proceedings of the State Historical Society of Wisconsin for 1908, at 136-37 (Madison, 1909).

⁷ Id. at 136-38; Sanborn, supra note 2, at 5.

⁸ Fischer, supra note 3, at 83-84, (quoting Anne Bradstreet, The Tenth Muse, Lately Sprung Up in America, 4 (London, 1650, reprint Gainesville, Florida, 1965.)

⁹ See Fischer, supra note 3, at 130-34, 158-63.

¹⁰ Catherine B. Cleary, Lavinia Goodell: First Woman Lawyer in Wisconsin, 74 Wis. Mag. Hist. 243, 245 (1991); see also Elizabeth Cady Stanton, Susan B. Anthony & Matilda Joslyn Gage, History of Woman Suffrage 3:314-324, 333-340, 407-442 (Rochester, N.Y., 1881).

¹¹ Cleary, supra note 10, at 252.

¹² In the Matter of the Motion to Admit Miss Lavinia Goodell, 39 Wis. 232, 245 (1875).

¹³ Wis. State J., Feb. 22, 1876, quoted in Cleary, supra note 10, at 264.

¹⁴ Cleary, supra note 10, at 265; Laws of 1877, Chapter 300.

¹⁵ In re Application of Miss Goodell, 48 Wis. 593, 81 N.W. 441 (1879).

¹⁶ Laws of 1850, Chapter 44; see also Richard H. Chused, Married Women's Property Law: 1800-1850, 71 Geo. L.J. 1359 (1973); Marylynn Salmon, Women and the Law of Property in Early America (New York, 1986).

¹⁷ Fischer, supra note 3, at 75-82.

¹⁸ See Catherine B. Cleary, Married Women's Property Rights in Wisconsin, 1846-1872, 78 Wis. Mag. Hist. 110 (1994); Joseph A. Ranney, Trusting Nothing to Providence: A History of Wisconsin's Legal System 204-10 (Madison, Wis., 1999).

¹⁹ 83 Wis. 573, 53 N.W. 896 (1892).

²⁰ Id. at 581-82; see also Emerson-Talcott Co. v. Knapp, 90 Wis. 34, 62 N.W. 945 (1895) (affirming that such businesses were to be controlled exclusively by the husband).

²¹ 76 Wis. 374, 45 N.W. 522 (1890).

²² Id. at 383-84.

²³ Fischer, supra note 3, at 82; Laws of 1905, Chapter 17.

²⁴ Laws of 1885, Chapter 211; see Genevieve G. McBride, On Wisconsin Women 114-21 (Madison, Wis., 1993).

²⁵ 71 Wis. 239, 36 N.W. 242 (1888); see also Gilkey v. McKinley, 75 Wis. 543, 44 N.W. 762 (1890); McBride, supra note 24, at 39-41, 117-33.

²⁶ See McBride, supra note 24, at 199-229.

²⁷ See generally La Vern J. Rippley, The Immigrant Experience in Wisconsin (Boston, 1985); John Higham, Strangers in the Land: Patterns of American Nativism, 1860-1925 (New York, 1988).

²⁸ Fischer, supra note 3, at 130-34; Lawrence A. Cremin, The American Common School: An Historic Conception (New York, 1951); Joseph A. Ranney, 'Absolute Common Ground': The Four Eras of Assimilation in Wisconsin Education Law, 1998 Wis. L. Rev. 791.

²⁹ Rippley, supra note 27, at 50-55; Higham, supra note 27, at 59.

³⁰ Rippley, supra note 27, at 50-55; Louise P. Kellogg, The Bennett Law in Wisconsin, 2 Wis. Mag. Hist. 3, 7-12 (1918); Marvin Lazerson, Understanding American Catholic Educational History, 17 Hist. Educ. Q. 297, 298 (1977).

³¹ Laws of 1883, Chapter 21; Kellogg, supra note 30, at 25-29.

³² Wis. Const. (1848) art. X, § 3.

³³ Id., art. I, § 18.

³⁴ See 29 Am. L. Reg. (N.S.) 321 (1890); Clara Hayes, William Penn Lyon, 9 Wis. Mag. Hist. 251, 275-79 (1926).

³⁵ State ex rel. Weiss v. District Bd. Sch. Dist. No. 8 of Edgerton, 76 Wis. 177, 44 N.W. 967 (1890).

³⁶ Id. at 194-95.

³⁷ Id. at 198.

³⁸ Id. at 205-06, 213.

³⁹ See 29 Am. L. Reg. (N.S.) 321 (1890).

⁴⁰ See Edgerton Bible, 76 Wis. at 205-06; 213; Alfred H. Kelly & Winfred A. Harbison, The American Constitution: Its Origins and Development 42-43 (4th ed.: New York, 1970).

⁴¹ See Ranney, supra note 18, at 259-358.

⁴² See id. at 359-90.

⁴³ See Joseph A. Ranney, Concepts of Freedom: The Life of Justice Byron Paine, 75 Wis. Law. 18 (November 2002).

⁴⁴ See Ranney, supra note 18, at 663-66.