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
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
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
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
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
Fair Play for Non-Yankees: The Edgerton Bible
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.
Joseph A. Ranney, Yale 1978, is a trial lawyer with
DeWitt Ross & Stevens S.C., Madison. He is the author of Trusting
Nothing to Providence: A History of Wisconsin's Legal System (1999) and
has taught as an adjunct professor at Marquette University Law
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
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
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
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.
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
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.
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
5 Id. at
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.
supra note 3, at 83-84, (quoting Anne Bradstreet,
The Tenth Muse, Lately Sprung Up in America, 4 (London, 1650,
reprint Gainesville, Florida, 1965.)
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.,
supra note 10, at 252.
12 In the
Matter of the Motion to Admit Miss Lavinia Goodell, 39 Wis. 232,
13 Wis. State J.,
Feb. 22, 1876, quoted in Cleary, supra note 10, at
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,
supra note 3, at 75-82.
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).
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).
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,
McBride, supra note 24, at 199-229.
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).
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.
supra note 27, at 50-55; Higham, supra note 27, at
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.
art. I, § 18.
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).
at 205-06, 213.
29 Am. L. Reg. (N.S.) 321 (1890).
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).
Ranney, supra note 18, at 259-358.
id. at 359-90.
Joseph A. Ranney, Concepts of Freedom: The Life of Justice Byron
Paine, 75 Wis. Law. 18 (November 2002).
Ranney, supra note 18, at 663-66.