State Bar of Wisconsin

Aliens and "Real Americans":
Law & Ethnic Assimilation in Wisconsin, 1846-1920

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by Joseph A. Ranney

Wisconsin's first settlers were mainly Yankees from New York and New England; they dominated the state's politics for most of the 19th century. But starting in the 1840s large numbers of European immigrants, primarily Germans and Norwegians, began settling in Wisconsin. The immigrants' numbers increased rapidly throughout the next 75 years, and as a result Wisconsin became-and remains-one of the most heavily ethnic American states.

Waves of ethnic conflict periodically swept across Wisconsin and the United States during this period, although ethnic tensions were more muted in Wisconsin than in most other states. Many of the conflicts were played out through Wisconsin's legal system, in the form of debates over temperance laws and the extent to which the German language and culture should be taught in Wisconsin's schools. Germans and other immigrants underwent a crisis during World War I: they came under heavy pressure to prove their loyalty to the United States by fully "Americanizing" themselves, and the federal government harshly suppressed speech critical of the war against Germany.

Alien suffrage and the Wisconsin Constitution

Wisconsin took a liberal attitude toward immigrants in its state constitution. During the state's 1846 constitutional convention, the committee on suffrage proposed that the vote be given to U.S. citizens and aliens who had resided in Wisconsin for six months and had formally declared their intention to become citizens.

This measure triggered extensive debate. Delegates from southwest Wisconsin opposed broad suffrage because most immigrants were settling in the eastern counties, and they knew that broad suffrage would hasten the southwest's political decline.¹ A few of the measure's opponents argued that foreigners should not be allowed to vote because their allegiance to Wisconsin would be suspect until they actually became citizens. Most opponents, however, contented themselves with the legalistic argument that giving aliens the vote might conflict with federal naturalization laws, therefore it might irritate Congress and might jeopardize Wisconsin's admission to statehood.²

Supporters of broad suffrage rebutted both of these arguments vigorously. A large number of convention delegates were foreign-born. Many of them (most notably Franz Huebschmann of Milwaukee) and many of the more idealistic Yankees (led by Charles Burchard of Waukesha) argued that when a foreigner left his old life behind and travelled thousands of miles to start a new life in Wisconsin, that effort alone was more than adequate to demonstrate his loyalty and commitment to Wisconsin. In late October 1846 the broad suffrage provision easily passed the convention by a vote of 68-16.³ The constitution created by the 1846 convention was rejected by the voters for reasons unrelated to alien suffrage, but a second convention in 1847-48 inserted the same provision without any significant change in the document that became the state constitution.⁴

The ebb and flow of Wisconsin's temperance laws

Wisconsin Yankees and Germans differed sharply in their attitudes toward liquor consumption and Sunday laws. Many Yankees and non-German immigrants were concerned about the prevalence of alcoholism in the early 19th century and the social ills that arose from it. They also believed that Sundays should be devoted strictly to worship and to rest at home. By contrast, beer consumption and the use of Sunday for recreation and entertainment were important parts of German culture.

During Wisconsin's early years as a state, the Yankees did not hesitate to enact their views into law. The Legislature did not outlaw the sale and consumption of liquor, but in 1849 it enacted a law that made liquor sellers liable for damages caused by intoxicated patrons. Sellers who "may have been in the habit" of supplying any drunkard with liquor were liable for any costs that the local municipality incurred in supporting the drunkard. In 1859 the Legislature prohibited the sale of liquor on Sundays.⁵

In 1872 the Legislature enacted a strengthened version of the 1849 anti-liquor law known as the Graham Law. The Graham Law required every liquor seller to post a bond of $2,000-a huge sum in those days-as security for its license. The law prohibited and criminalized both drunkenness and the sale of liquor to minors. It also declared establishments that sold liquor illegally to be public nuisances, and required that they be closed if their owners violated the law.⁶

Wisconsin Germans saw the Graham Law as a direct attack on their native culture. Milwaukee's city attorney challenged the law's bond requirement on the ground that it deprived liquor sellers of property without due process of law and operated as a penalty on lawful acts. The civil liability provisions of the law were challenged on similar grounds in a separate lawsuit. The Wisconsin Supreme Court rejected both challenges and held broadly that the Legislature could impose any terms it saw fit on the right to trade in liquor.⁷

Thwarted in the courts, the Germans shifted their attention to the ballot box. In 1873 they helped defeat the Republican administration that had passed the Graham Law, and in 1874 the Legislature replaced the Graham Law and the 1859 Sunday blue law with a considerably milder law. The 1874 law reduced the required bond amount to $500 and allowed Sunday liquor sales. Vendors were still civilly liable for damages caused by drunken patrons, but the new law allowed municipalities to help sellers avoid liability by arresting intoxicated persons even when they were not disturbing the peace, and by forbidding the sale of liquor to drunkards who were at risk of indigence or illness. The 1874 law turned out to be a workable compromise between German and Yankee sensibilities, and it remained in force for many years.⁸

Of Bibles and Bennetts: Immigrant culture in the schools

The subject of greatest debate between Wisconsin Yankees and immigrants was how extensively the state should regulate public and private schools and the extent to which schools should be used to assimilate immigrant children into mainstream American culture. The debate over these issues reached a flash point in 1890, when the Wisconsin Supreme Court decided the Edgerton Bible Case and the Legislature enacted the Bennett Law, one of the most controversial statutes in the state's history.⁹

The Edgerton Bible Case. Religious differences played a much larger role in late 19th century American society than they do now. Many German immigrants, Catholics and Protestants alike, held fast to their particular sects and their particular versions of the Bible as a means of preserving their cultural identity and of slowing assimilation. The state constitution prohibited "sectarian instruction" in the public schools, and in 1883 the Legislature prohibited the use of textbooks which had a tendency 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 part of the curriculum in many public schools.¹⁰

Good citizenship poster, 1880s

In 1890 Humphrey Desmond, a Catholic lawyer and editor in Edgerton, challenged such readings on the grounds that Catholics recognized only the Douay version of the Bible as the true Bible. In the past similar challenges had been mounted in other states but all of them had been rejected by the courts. The Wisconsin Supreme Court broke new legal ground and held, with qualifications, that Bible readings violated the sectarian instruction clause of the state constitution.

The court rejected the Edgerton school board's argument that Catholic students were protected because they could withdraw from religious exercises and Bible reading. The court was careful to hold that "fundamental teachings" in the Bible, such as the basic moral teachings of Jesus in the New Testament and passages of historic and literary value, were not sectarian and could be taught in the schools. However, purely "doctrinal portions" of the Bible could not be taught. The court did not base its decision on the First Amendment guarantee of separation of church and state, but it did note that:

"Many, perhaps most, of these immigrants came from countries in which a state religion was maintained and enforced ... What more tempting inducement to cast their lot with us could have been held out to them than the assurance that, in addition to the guaranties of the right of conscience and of worship in their own way, the free district schools in which their children were to be, or might be educated, were absolute common ground, where the pupils were equal, and where sectarian instruction, and with it sectarian intolerance ... could never enter?"¹¹

Although the court's decision irritated many Yankees, it soon became recognized throughout the United States as a landmark case.¹²

The Bennett Law. Many groups of immigrants, particularly Germans, established their own schools when they settled in Wisconsin. The schools conducted classes in German, not English because the Germans considered the schools essential to preserving their native language and culture.

What Wisconsin Germans saw as cultural preservation many Yankees saw as unpatriotic resistance to assimilation. In the 1880s many Yankees began to call for new laws holding parochial schools more accountable to state government and requiring them to conduct classes in English. In 1888 William D. Hoard made this call the central theme of his successful campaign for the governorship.¹³

At the next session of the Legislature, Assemblyman Michael Bennett of Dodgeville introduced a bill to put most of Hoard's program into effect. The bill required stricter enforcement of attendance in both public and private schools. Children could only go to parochial schools located in their public school district, and all public and parochial schools would be required to conduct classes in English.¹⁴

It took several months for the Germans to realize the full implications of the Bennett Law; but once they awakened to those implications, they staged a minor revolution in state politics. They denounced the law as a nativist assault on their culture and as an attempt by the Yankees to foist their language and values on all Wisconsinites, willing or not.

Some supporters of the Bennett Law praised it in blunt terms as a victory in "the war against bigotry, ignorance, and ... exclusive and pestilent foreignism." More temperate supporters argued that assimilation was inevitable, that learning English was essential to the future success of immigrant children and that the law would not destroy the Germans' heritage.¹⁵ But the opposition to the bill was overwhelming. In the 1890 election the votes of Germans and some other immigrant groups swept Gov. Hoard and the Republicans out of power for the first time in 20 years. The next session of the Legislature promptly repealed the Bennett Law and replaced it with a milder law that eliminated the English language requirement and the requirement that children attend schools located in their public school district.¹⁶

Ironically, the defeat of the Bennett Law turned out to be the first step toward the ultimate triumph of the assimilationists. Although the Germans had won, they also realized for the first time how strongly many Wisconsinites favored assimilation and supported English as the main vehicle of assimilation. As a result, many German schools began to implement English instruction. In 1898 the Legislature passed a law requiring English instruction in all schools and limiting foreign language instruction to one hour a day. Anti-German sentiment during World War I put more pressure on Germans and other immigrants to assimilate, and by the 1920s English was universally accepted in the German community.¹⁷

World War I: Anti-German sentiment and the assault on free speech

When World War I began in 1914, relatively few Americans had strong feelings about either Germany or the Allies. But from 1915 on, public sentiment tilted increasingly against Germany, and after the United States entered the war in April 1917 anti-German feeling rose to a point of near hysteria. Many Americans regarded any support of German culture and any criticism of the war as treason. As part of the war effort, Congress passed a series of laws that severely restricted freedom of speech. The most important of these was the Espionage Act of 1917, which made it a crime to interfere with the military or recruiting services or to mail materials "advocating treason, insurrection, or forcible resistance to any law of the United States." In 1918 the act was broadened to prohibit criticism of the flag, the armed forces, the Constitution and the American form of government.¹⁸

Wisconsin was less susceptible to war hysteria than most states. One reason for this was the state's large German population; but Wisconsin's political leaders also made a diligent effort to prevent persecution of German-Americans and war critics. In 1918 the Legislature passed a bill modeled on the Espionage Act that prohibited interference with military recruiting and prohibited speech encouraging resistance to the war effort. However, many legislators opposed the bill, and at the suggestion of Assemblyman William Evjue of Madison a sunset provision was added terminating the law at the end of the war. Gov. Emanuel Philipp signed the bill into law only on the understanding that it "must be strictly construed" and that it would not "in any measure interfere with the free discussion of the affairs of this government, whether they relate to the war or otherwise."¹⁹

Few if any cases were prosecuted under the Wisconsin law. The federal war acts were enforced more vigorously: a total of 105 cases were brought in Wisconsin's two federal district courts, resulting in 60 convictions and 45 acquittals or dismissals. The types of comments which most frequently triggered prosecution and conviction were praise of Germany, direct criticism of the United States, criticism of bond drives and characterization of the war as a "rich man's war."²⁰

There was a dramatic difference in enforcement between Wisconsin's two federal judicial districts. Although the Eastern District was more populous, it accounted for only about one-third of all federal prosecutions in Wisconsin; and Judge Ferdinand Geiger of the Eastern District imposed substantially lighter prison sentences and fines on convicted defendants than did Judge Arthur Sanborn of the Western District. It is difficult to say how much of this pattern of enforcement was due to the fact that the Eastern District was more German than the Western District, and how much was due to differing philosophies of the judges and U.S. attorneys in each district. Possibly both factors played a part.²¹

Several prominent Wisconsinites were prosecuted under the federal war acts. In 1917 Circuit Judge John Becker of Monroe was indicted under the Espionage Act, convicted and sentenced to a year in prison. Becker, like his constituents, strongly opposed the war: he described it as "a rich man's war" and warned farmers to "beware of war taxes." In 1920 the Seventh Circuit Court of Appeals reversed his conviction on the grounds that Becker's remarks were not prohibited by the Espionage Act. In the meantime, however, Becker was forced to vacate his judgeship and he did not get it back.²²

The Nagler and Berger cases. The most important Wisconsin war act cases involved Louis Nagler of Madison and Victor Berger of Milwaukee. The Nagler case was important because it was one of a series of cases around the United States in 1917-18 in which federal district judges interpreted the Espionage Act as imposing sweeping restraints on speech and ignored or rejected arguments that the First Amendment favored a narrower construction.²³ When Nagler was asked to contribute to the YMCA war relief campaign in late 1917, he replied: "The YMCA and the Red Cross are a bunch of grafters ... Not over 10 or 15 percent of the money collected goes to the soldiers ... Who is running this war? A bunch of capitalists composed of the steel trust and munition makers." Nagler was then indicted and convicted under the Espionage Act for interfering with United States military operations.

Federal Circuit Judge Evan A. Evans of Baraboo was appointed special presiding judge over the case. Evans rejected Nagler's argument that the YMCA was not part of the armed forces and that the Espionage Act should be construed narrowly. He reasoned that because the YMCA and other relief agencies were associated with the government and were aiding in the war effort, they were part of the armed forces for purposes of the act. He stated that it was necessary to make an example of Nagler and sentenced him to 2&laqno; years in prison. Nagler appealed, however, and in 1920 the U.S. Supreme Court reversed the judgment at the government's request and the case was dropped.²⁴

Victor Berger was one of the leaders of the Wisconsin Social Democratic Party, which was then a major force in state politics. As the war progressed Berger published a series of editorials in his newspaper, the Milwaukee Leader, calling for the preservation of civil liberties and criticizing the military draft. Berger never counseled resistance to the war effort; in fact, he urged several times that his readers obey the war laws. In September 1917 Postmaster General Albert Burleson suspended the Leader's second-class mailing privileges on the ground that Berger's editorials violated the Espionage Act.²⁵

Berger appealed the Post Office's decision to the federal courts, but in 1921 the U.S. Supreme Court upheld the Post Office in United States ex rel. Milwaukee Social Democrat Publishing Co. v. Burleson.²⁶ The Court summarily rejected Berger's argument that his editorials, though critical of certain aspects of the war, did not hinder the war effort. Like the Nagler court and many other district courts that had interpreted the Espionage Act, the Supreme Court tacitly put the burden of proof on war critics to show that their remarks did not hinder the war effort, rather than requiring the government to prove hindrance. The Court was somewhat troubled by the fact that the Post Office had revoked mailing privileges for all issues of the Leader, even future issues which might not contain objectionable material. However, the Court concluded that it would be impractical for the Post Office to review every issue; therefore, it could suspend the Leader's mailing privileges until the Leader affirmatively showed that the offending conduct had ceased.

Justices Brandeis and Holmes dissented. Both recognized that "use of the mails is almost as much a part of free speech as the right to use our tongues," and argued that giving the Postmaster General the right to deny mailing privileges to future issues of a paper on the basis of an informal hearing amounted in many cases to denial of the right to publish without due process and without a jury trial. One leading First Amendment scholar has described the Burleson case as the low point of freedom of the press in American history, and as "utterly foreign to the tradition of English-speaking freedom."²⁷

Joseph A. Ranney, Yale 1978, is a trial lawyer with DeWitt Ross & Stevens S.C., Madison. He is the author of several articles on legal and historical topics.

The Burleson case was not Berger's only source of trouble. In early 1918 he was the Social Democratic candidate in a special election to fill one of Wisconsin's U.S. Senate seats. Shortly before the election, federal authorities indicted Berger and several other prominent Socialists under the Espionage Act. The charges against Berger were based mainly on his Leader editorials. The trial took place in the Chicago federal district court in early 1919 before Judge Kenesaw Mountain Landis, who was famous for his outspoken conservative views and his autocratic courtroom style.

Berger's attorneys asked Landis to recuse himself based on statements he had made in other cases that the hearts of all German-Americans "are reeking with disloyalty" and that pacifists had "the interest of the enemy at heart." Landis denied the request, and the trial proceeded amid heavy publicity. Berger argued that the First Amendment allowed him to criticize the war as long as he did not actively hinder the war effort. However, the jury convicted Berger, and Landis promptly sentenced him to up to 20 years in prison. The Seventh Circuit allowed Berger to remain free on bail pending his appeal, and in 1921 the Supreme Court reversed his conviction. The Court held that because Berger's claim of prejudice against Landis had been made in good faith and was not frivolous, under governing law Landis had no choice but to recuse himself. The Court did not reach the merits of Berger's conviction. The government did not take any further action against Berger.²⁸

The Burleson and Berger cases are important mainly for their place in the history of free speech in America, but they also marked the end of the legal struggle between Wisconsin's Yankees and immigrants. Wisconsin Yankees accepted equal political and economic rights for immigrants from the beginning, and that never changed. But World War I and the postwar period marked the triumph of a concomitant belief in assimilation which had been advocated by the Yankees since the 1870s and had won increasing support from many immigrants themselves since the 1890s. The wartime assault on free speech and German culture was a shabby episode in Wisconsin's legal history, but it and the intensive Americanization efforts that followed in the 1920s substantially completed the assimilation process. Ethnic tensions ceased to play an important part of Wisconsin's legal history after that time.

Photo: State Historical Society of Wisconsin

Endnotes

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¹ Brown, The Making of the Wisconsin Constitution, 1949 Wis. L. Rev. 648, 689-90; but see K.W. Duckett, Frontiersman of Fortune: Moses M. Strong of Mineral Point (Madison, 1955), 85-86.

² Madison Argus, Oct. 27, 1846, reprinted in M.M. Quaife, The Convention of 1846, State Historical Society of Wisconsin Collections Vol. 27 (Madison, 1918) (hereinafter Convention of 1846), 243.

³ Edward G. Ryan of Racine, an Irish immigrant who later became chief justice of the Wisconsin Supreme Court, argued that by giving the vote to aliens, Wisconsin was merely exercising its inherent power of determining who its "denizens" would be, and was not usurping the federal government's power to confer citizenship. Madison Argus, Oct. 27, 1846 (reporting Huebschmann's and Ryan's remarks) and Madison Express, Oct. 27, 1846 (reporting Burchard's remarks), reprinted in Quaife, Convention of 1846, 231-35, 246-47, 252-65.

⁴ Const. (1848) Art. III, § 1.

⁵ R.S. 1849, c. 29; L. 1859, c. 115.

⁶ L. 1872, c. 127.

⁷ State ex rel. Henshall v. Ludington, 33 Wis. 107 (1873); Wightman v. Devere, 33 Wis. 570 (1873).

⁸ L. 1874, c. 179. The Legislature enacted a series of local option laws in the 1880s, but few communities enacted local prohibition because liquor license fees made up an important part of their revenue. L. 1885, c. 438; L. 1889, c. 521; R.C. Nesbit, The History of Wisconsin, Vol. III: Urbanization and Industrialization, 1873-1893 (Madison, 1985) (hereinafter History of Wisconsin, 1873-1893), 350.

⁹ State ex rel. Weiss v. District Board of School Dist. No. 8 of the City of Edgerton, 76 Wis. 177, 44 N.W. 967 (1890); L. 1889, c. 519.

¹⁰ Const. (1848) Art. X, § 3; L. 1883, c. 251; Kellogg, The Bennett Law in Wisconsin, 2 Wis. Mag. Hist. 3, 25-29 (Sept. 1918); Nesbit, History of Wisconsin, 1873-1893, 610-15.

¹¹ 76 Wis. at 198. Justice John Cassoday wrote a separate opinion, apparently at the request of Chief Justice William P. Lyon, stressing the point that use of the Bible in the schools can constitute worship and that it does implicate constitutional concepts of freedom of religion. See the accompanying sidebar on Cassoday.

¹² See Chief Justice John Winslow's discussion of the case in Hayes, William Penn Lyon, 9 Wis. Mag. Hist. 251, 275-79 (March 1926).

¹³ Kellogg, The Bennett Law in Wisconsin, 2 Wis. Mag. Hist. 3, 4-10 (Sept. 1918); Nesbit, History of Wisconsin, 1873-1893, 605-11.

¹⁴ L. 1889, c. 519.

¹⁵ Kellogg, The Bennett Law in Wisconsin, 5-7, 21-24; Whyte, The Bennett Law Campaign in Wisconsin, 10 Wis. Mag. Hist. 363, 387 (June 1927).

¹⁶ L. 1891, c. 187.

¹⁷ Kellogg, The Bennett Law in Wisconsin, 24-26; L. Rippley, The Immigrant Experience in Wisconsin (Boston, 1985), 92, 116-22.

¹⁸ 40 Stats. 217, 553 (1917). In addition, the Selective Service Act of 1917 made it a crime to discourage men from registering for the draft or serving in the armed forces. 40 Stats. 76 (1917). Under the Trading With the Enemy Act of 1917, publishers of foreign language articles about the war were required to file English translations of the articles with local postmasters before publication. 40 Stats. 425 (1917). This created a heavy expense for foreign-language newspapers and forced many of them to close down.

¹⁹ L. 1918 (Spec. Sess.), c. 13; R.S. Maxwell, Emanuel L. Philipp: Wisconsin Stalwart (Madison, 1959), 158-59.

²⁰ Stevens, When Sedition Laws Were Enforced: Wisconsin in World War I, 58 Wis. Acad. Sci. Arts & Letters 39, 48 (1970).

²¹ Stevens, When Sedition Laws Were Enforced, 59-60. many U.S. attorneys were concerned about the threat to free speech which the federal war acts posed; some of them enforced the acts reluctantly or not at all. Z. Chafee Jr., Free Speech in the United States (Cambridge, Mass., 1941), 59-60.

²² Stevens, When Sedition Laws Were Enforced, 42-43, 51-53; Becker v. United States, 268 F. 195 (1920). At the other end of the political spectrum from Becker, a county judge in Rhinelander on one occasion led a crowd in burning an effigy of Kaiser Wilhelm of Germany in the Rhinelander courthouse square. Rippley, The Immigrant Experience in Wisconsin, 113. In 1917 Congressman John Nelson, an opponent of the war, was charged with helping his son to avoid registering for the draft. Nelson argued that because his son was working in Canada he was not required to register. In early 1918 Judge Sanborn accepted this argument and quashed the indictment; however, the publicity which the case generated played a part in Nelson's defeat for reelection later in the year.

²³ See Chafee, Free Speech in the United States, 51-60. The issue of how to reconcile the Espionage Act with the First Amendment came to a climax in Schenck v. United States, 249 U.S. 47 (1919). In Schenck the U.S. Supreme Court upheld the act. Justice Holmes, writing for the Court, created one of the most famous formulations of the scope of the First Amendment: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." 249 U.S. at 52.

²⁴ United States v. Nagler, 252 F. 217 (W.D. Wis. 1918); Nagler v. United States, 254 U.S. 661 (1920); see also Stevens, When Sedition Laws Were Enforced, 54; Crownhart, The Nagler Case (pamphlet, 1918, State Historical Society of Wisconsin archives).

²⁵ Muzik, Victor L. Berger: Congress and the Red Scare, 47 Wis. Mag. Hist. 309, 310 (Summer, 1964); S. Miller, Victor Berger and the Promise of Constructive Socialism, 1910-1920 (Westport, Conn., 1973), 198-202. The Espionage Act specifically authorized the Postmaster General to withhold mailing privileges for materials that violated its provisions. When asked to set a standard for what statements would trigger suspension of mailing privileges and what statements would not, Burleson would say only that "the instant you print anything calculated to dishearten the boys in the army or to make them think this is not a just or righteous war-that instant you will be suppressed and no amount of influence will save you."

²⁶ 255 U.S. 407 (1921). The Supreme Court affirmed a previous decision of the District of Columbia Circuit Court of Appeals, which had also upheld the order. United States ex rel. Milwaukee Social Democrat Publishing Co. v. Burleson, 258 F. 282 (D.C. Cir. 1919).

²⁷ 255 U.S. at 429-31, 437; Chafee, Free Speech in the United States, 298-305.

²⁸ Berger v. United States, 255 U.S. 22 (1921). For a more detailed description of Berger's trial, see Miller, Victor Berger and the Promise of Constructive Socialism, 207-15.

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