Sunday Dancing in Milwaukee 1870
Two Cultures Collide
John W. Krueger
When Franz Bader and Peter Crass opened the doors of the Turner Hall in Milwaukee and prepared to take tickets for a dance on a Sunday afternoon early in June 1870, the men were doing what their employer expected. They were also breaking a local ordinance. The Common Council of the City of Milwaukee on May 25, 1870, passed “an ordinance to prohibit and punish public dancing on Sunday.” The ordinance reflected previous discussions in Milwaukee and had several sections. Section One of the ordinance stipulated that a person with a Milwaukee liquor license should not open a place of business or any garden “on the first day of the week, commonly called Sunday, for the purpose of dancing, or shall suffer or permit any dancing in any such place on the said day.” Section Two expanded the ban beyond those holding liquor licenses and stipulated that “no person shall open any building, garden, grounds, or premises for the purpose of public dancing or permit any public dancing in any such place on Sunday.” The third section imposed a fine of “not less than twenty-five nor more than one hundred dollars” for anyone who violated either one of the first two sections. The fourth section went on to state that anyone convicted of violating either the first or second provision would automatically have their license revoked without any further proceeding.i
Milwaukee in 1870 was a growing city, with a population of 71,440.ii Some of the inhabitants came to Wisconsin from the eastern states of New England and New York, and many of them made their home in a section of Milwaukee known as Yankee Hill. Other inhabitants of Milwaukee came from foreign countries, England, Ireland, and Scotland, as well as from various German states and Scandinavian and Eastern European countries. Immigrants from these regions brought with them their own customs and observances, some of which were differed from the cultural values and practices of the Yankees in Milwaukee.
One such variance was noticeable in Sunday observances. In the seventeenth century Scottish Presbyterians and English Puritans came to the colonies in America and honored the Sabbath by promoting regular attendance at church worship services and prohibiting all but some necessary kinds of work on Sunday. Several New England colonies enacted rigorous “blue laws” and several of these laws and practices survived in nineteenth-century New England states. Early Wisconsin settlers who came from these states tended to favor a strict observance of Sunday as a day of worship and somber reflection. Immigrants from some European countries where such laws and practices were not common instead favored a more relaxed view of the Sabbath. In their view, on Sunday people were free to attend worship, but a portion of the day could also be set aside as a time for recreation with family and friends. German immigrants in particular frequently attended their church services in the morning if they were members of a parish or congregation, but in the afternoon those who were religious and those who were freethinkers both frequently enjoyed the rest of the day with music, singing, dancing, smoking, and drinking beer and wine.iii This clash of cultures in early Milwaukee was a driving force behind the passage of the ordinance to prohibit and punish public dancing on Sunday.
In 1870, how people observed the Sabbath was not a new issue in Milwaukee or elsewhere in Wisconsin. The Wisconsin State Legislature in 1867 passed and then later in 1868 reconsidered and revoked a statute regarding Sunday observances. Despite the legislative action, the debate over proper observance continued in some communities. In Milwaukee, some clergy preached sermons on the topic emphasizing the need for a strict observance of the Sabbath.iv
Then in the spring of 1870 the newly elected mayor of the City of Milwaukee, Joseph Phillips (1825–1906), made comments urging the Common Council to act on the subject. When he was sworn into office on April 19, 1870 before a joint group of incoming and outgoing aldermen Mayor Phillips addressed what he saw as the needs of the city. After outlining plans for various city departments, he concluded by saying:
Last but not least, I desire to call your attention to what, in common with a very large number of our citizens, I regard as an evil which requires a prompt and efficient remedy. I allude to those establishments where people of both sexes are allowed to congregate for dancing on Sunday, both day and evening. This practice is believed to be highly detrimental to public morals and to the peace and good order of the city and ought therefore to be prohibited. I recommend that an ordinance be passed, prohibiting under proper and effective penalties, the opening or use of any house, saloon, hall or other place for dancing on Sunday.v.
The following weeks saw various attempts to introduce an appropriate ordinance prohibiting dancing on Sunday in Milwaukee. An ordinance on the subject was brought to the Common Council early in May; it was referred to a committee which then added some sections involving a proper license application process for places where dances might be held.vi When this was discussed again later by the Common Council the members noted that the ordinance was attempting to do two things at the same time, both prohibit dancing and define license procedures for dancing establishments.vii After some further discussion the additional sections regarding licensure were dropped and an ordinance prohibiting dancing on Sunday in Milwaukee was approved by the mayor on May 24 and then passed by the Common Council on May 25.
Developments in the Common Council debates regarding Sunday dancing in Milwaukee were published in various editions of The Daily Milwaukee News, making the public aware of the discussion. Even before passage of the ordinance the same newspaper on May 11, 1870, also published news about a petition being circulated in Milwaukee remonstrating against the ordinance as “violating personal and religious liberty . . . unwarranted by anything contained in the constitution of the state or our city charter . . . (and) contrary to the wishes of the people of our state.” The newspaper editor noted that the petition was circulated both in English and in German and was obtaining signatures by the scores and hundreds.viii
German language newspapers in Milwaukee were also following the story. On May 28 and 29,1870 they carried advertisements and notices reporting that various localities and resorts in the city of Milwaukee were making arrangements to avoid the ordinance and hold dances and musical events on Sunday. ix
After the passage of the ordinance, the Milwaukee Turners took some time to consider the situation. With roots in the German Turnverein associations first begun in Germany by Ludwig Jahn, the Milwaukee Turners received their charter from the Wisconsin State Legislature in 1855. Their motto, “a sound mind in a sound body,” reflected their dual emphasis on physical exercise and intellectual development.x While insisting that they were law-abiding people, the Turners nevertheless decided to test the legality of the Sunday dance ordinance. They saw the new ordinance as encroaching on their religious and civil rights. The New York Times newspaper noted in an article published on June 4, 1870, that in Milwaukee the Turners “are now raising the necessary money. When everything is ready, they will get up a dance (to) furnish the evidence against themselves.” xi
On a Sunday afternoon in early June 1870 the Milwaukee Turners did open their hall for the purpose of holding a dance. Franz Bader (1846–1906), a young immigrant from Germany, was at the door of Turner Hall, and another German immigrant, Peter Crass (1824–1880), was responsible for taking tickets. The Turners had notified Milwaukee city authorities in advance that the dance would be held and on the designated Sunday witnesses from those authorities were present to observe and prove the fact.xii
Events followed rapidly after the Sunday infraction of the new ordinance. On the Monday after the dance, Franz Bader and Peter Crass were arrested along with another member of the Turnverein and all subsequently paid bail and agreed to appear at their trial. On the 17th of June 1870 two complaints were filed in the Milwaukee Municipal Court. The first complaint charged Franz Bader and Peter Crass with violating the second section of the ordinance, and the next complaint went on to charge the Milwaukee Turnverein with breaking the provisions of the first section. Legal counsel for the defendants Bader and Crass appeared with them in court on June 20 to file a motion to dismiss the complaint against them. Then on June 22 the same legal counsel appeared again representing the Turnverein and filed a motion to dismiss the charges against the Turners, with the attorneys agreeing to argue both cases together in court.xiii
Representing the defendants were two distinguished Milwaukee lawyers, the Honorable James S. Brown and R. N Austin, Esq. Attorney James S. Brown (1824-1878) served as the first Attorney General of the State of Wisconsin beginning in 1848. After two years in that office he returned to Milwaukee where he continued his legal practice and was elected the mayor of Milwaukee, serving from 1861 to 1862. From 1863 to 1865 he was a member of the U. S. House of Representatives from Wisconsin’s 1st district. Not only was he distinguished and capable; he could also speak German after learning that language as a teenager working in Cincinnati.xiv His associate, Robert N. Austin (1822–1901), was admitted to the bar in New York state in 1848, coming to Milwaukee the same year where he practiced law and became well-regarded “as one of the solid practitioners of the city.”xv
Charged with prosecuting the case for the City of Milwaukee was the recently elected city attorney, Edward G. Ryan (1810 – 1880).xvi Four years later he would be appointed to serve as the Chief Justice of the Wisconsin Supreme Court, but in 1870 Ryan’s task was to ensure compliance with Milwaukee city laws, including the ordinance against Sunday dancing. He presented the case against the defendants and covered a number of points, although as noted later by the attorneys for the defense he did acknowledge that Bader and Crass were acting on instructions from their employer and therefore somewhat less culpable.
Attorney R.N. Austin began arguing the case for the defendants, concentrating on the moral and religious concerns underlying the new ordinance. He wondered why the Milwaukee Common Council had chosen to prohibit and punish public dancing on Sunday and not on any other day of the week. “If public dancing is wrong, then it ought to be prohibited and punished on every day in the week,” he argued. Public dancing was not deemed so offensive that it should be prohibited or punished on other days so therefore the moral ground for the Sunday Dance Ordinance was weak.xvii
With regard to Sunday, Austin noted a diversity of opinion and belief about the character and observance of the first day of the week He reviewed Jewish and Christian perspectives and Sabbath practices, arguing that the general practice of observing Sunday as a sacred day was a human invention stemming from the Council of Nicaea convened by Emperor Constantine. Referring to the Bible and certain religious authorities he concluded that from the example and teaching of Christ “no warrant can be had for special regard for Sunday because of its sacredness.”xviii Since there were differences of opinion and conscience regarding the observance of Sunday, Austin argued that it was an interference with the “right of conscience to legislate on matters of religious faith.” xix
Taking up the argument for the defendants, Attorney James S. Brown noted that the City Attorney had conceded in his argument “that the mere act of a servant having no control or power to prevent the infraction of the ordinance, (such act) would not subject him to its penalty.” Bader and Crass, the two defendants in the first case, were the door keeper and ticket vender, and both acted as employees of the Turnverein. As employees “having no power over the premises” they should not be liable to the penalty.”xx
Attorney Brown next reviewed some constitutional history and noted that the ordinance in question violated both the U. S. Bill of Rights and Section 18 of the Wisconsin State Constitution.xxi He cited the Constitution of the State of Wisconsin, which in section 18 said (in part):
The right of every man to worship Almighty God according to the dictates of his own conscience shall never be infringed. . . Nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishments or mode of worship.xxii
Arguing against the validity of the new ordinance passed by the Milwaukee Common Council, Attorney Brown maintained “It is only when you allow the religious views of the majority to dictate by law to the minority the mode of enjoying this rest from labor that there is a violation of the Constitution.” xxiii
Brown argued that the Milwaukee Sunday Dance ordinance was not a general rule for the suppression of vice and disorder but rather “a mere proscription by one class of the mode in which another class . . . think Sunday should be celebrated.” xxiv He alleged that it was clearly giving preference to one religious perspective about Sunday, allowing the religious views of the majority to dictate by law to the minority. The recently declared policy of the state of Wisconsin was against this class of Sunday laws. As an incorporated city subject to Wisconsin law, Milwaukee had no power to interfere with or annul the laws of the state. In support of these arguments Attorney Brown cited legal cases and precedents and then concluded by saying “For all these reasons, your Honor, I insist that this ordinance is void”xxv. At the end of their arguments on June 23 the attorneys for the defense reiterated their motion to dismiss the charges against the two sets of defendants.
Milwaukee Municipal Court Judge James A. Mallory (1822 – 1899) noted that he would take some time to consider the case and return with his decision on Monday, June 27th. On Monday when the court next convened he revealed that he would not review all the points presented by the counsel for the defense in their motion to dismiss the charges. He did however review two major points. First, he agreed that the Ordinance Prohibiting Sunday Dancing did violate the First Amendment to the U. S. Constitution, interfering with religious freedom and rights of conscience. Second, he considered and agreed with the argument that the ordinance violated the declared policy of the Wisconsin state legislature, which had recently repealed all state statutes prohibiting dancing on Sunday. He summarized these findings by stating:
The consideration which I have given this subject has brought my mind clearly to the conclusion that this ordinance is against the recently declared policy of the state; and that neither the legislature or the common council can authorize or pass such an ordinance without violating the constitution of this state and disregarding the complete freedom of religious opinion and worship embodied in our American system of government.xxvi
As a result of his decision the Milwaukee ordinance prohibiting Sunday dancing was declared to be invalid and the charges against the defendants were dismissed.
The day after Judge Mallory announced his decision in court, the Daily Milwaukee News on June 28, 1870, reported “Judge Mallory Decides the Sunday Ordinance Invalid” and printed the text of his decision in two columns of the newspaper. Other newspapers in the state and region had been following the case for some time and some also summarized the decision for their readers. In Janesville, Wisconsin the Janesville Daily Gazette noted on June 28th that the question of how Sunday was to be observed in Milwaukee had been discussed by attorneys on both sides of the issue. After Judge Mallory’s decision “dancing will continue to be indulged in on Sunday in the city of bricks …what next?”xxvii The North Iowa Times from MacGregor, Iowa had earlier shown interest in the proceedings and after the decision carried a summary of the case and Judge Mallory’s opinion in the June 29, 1870 edition of that newspaper.xxviii In Madison, The Wisconsin State Journal on June 30, 1870, reviewed the decision in a brief article entitled “Dance House Religion.”xxix Somewhat later on July 9, 1870 The Weekly Herald from Chippewa Falls, Wisconsin printed a review of the case and also included in their article some comments from the Chicago Post, where the editor of that paper had opined that this development was “certainly a novel view of law and private rights … but will give to every man the greatest individual freedom consistent with the personal rights of others.”xxx
In Milwaukee some of the civic leaders were also wondering “what next?” They approached the City Attorney raising the possibility of appealing Judge Mallory’s decision before the next session of the Wisconsin Supreme Court. When the Milwaukee Common Council met on July 5, 1870, Councilman Prentiss moved that the order of business before them be suspended so that they might hear from the City Attorney regarding the recent case. Attorney Ryan was allowed to address the council and commented that an appeal to the Wisconsin Supreme Court, even if made very soon, would not be decided before the winter. Acting as the City Attorney, Ryan was hesitant to pursue such an appeal without further instructions from the Common Council. Apparently, no such instructions were forthcoming, for none were mentioned when the Daily Milwaukee News reported on the meeting the next day in the July 6, 1870 edition of their paper.xxxi
Grateful for the decision which upheld their rights, the members of the Milwaukee Turnverein printed the arguments of attorneys Brown and Austin and the opinion of the court relating to the ordinances of the city against Sunday dancing. At the direction of the Turnverein, printed copies of the 52-page document were made available to interested persons.
The Milwaukee Turners also proceeded with plans to invite members of other Turnvereins and sharpshooting clubs to a Turn und Schuetzen Fest in Milwaukee later in August. The event lasted for five days, from August 17 to August 21, 1870. There were sharpshooting contests and other contests in which members of the various Turnvereins competed in athletic performances and tests of skill. When the contests were over, Franz Bader from the Milwaukee Turnverein was reported to have won the prize for class turning, indicating that he was the best overall competitor at several exercises. Sunday, August 21, was the last day of the Fest and the Daily Milwaukee News later commented about the events, noting that “throughout the city from the beginning to the ending a spirit of harmony and good fellowship” prevailed. The climax of the event came on Sunday with immense crowds enjoying music by several German bands at the Milwaukee Gardens. “In the evening there was a grand illumination of the Gardens, with a ball.”xxxii Sunday dancing in Milwaukee was then obviously permitted and enjoyed by many.
In the years after these events German immigrants continued to stream into Milwaukee, where they formed a large part of the population. Participating in events with the Turnverein, drinking and dancing remained part of the cultural mix in the city, but the immigrants also made other important contributions. Many of them brought with them significant aspects of their German culture, including a love of fine music, literature, theater, and art. Because they felt welcome in the city and could freely share their culture Milwaukee became known as the “German Athens on Lake Michigan.”xxxiii The decision about Sunday dancing in Milwaukee in 1870 reinforced not only the religious freedom and rights of conscience guaranteed both in the United States Bill of Rights and the Wisconsin State Constitution, it also indicated that people of different backgrounds and cultures were welcome and free to share their talents and traditions in this American city.
The Rev. John W. Krueger is a retired Lutheran chaplain in Appleton, WI., a member of MKI, and enjoys researching family and regional history.
i An Ordinance to Prohibit and Punish Public Dancing on Sunday, The Daily Milwaukee News (Milwaukee, Wisconsin), Wednesday, May 25, 1870, page 8, column 2. and Thursday, May 26, 1870, page 7, column 3.
ii United States Federal Census, 1870, City of Milwaukee.
iii Arguments of Hon. Jas. S. Brown and R. N. Austin and Opinion of the Court Relating to Ordinances of the City Against Sunday Dancing, printed at the Direction of the Turn-Verein, (Milwaukee: Krogh and Corbitt, Book and Job Printers), 1870. Attorney Brown reviewed the different practices relating to Sunday observance in his oral argument printed in pages 9-12 of this document.
iv Arguments, pp. 18-19.
v Address of Mayor Phillips, The Daily Milwaukee News (Milwaukee, Wisconsin), Wednesday, April 20, 1870, Page 5, column 4.
vi The So-called Sunday Ordinance, The Daily Milwaukee News (Milwaukee, Wisconsin), Sunday, May 22, 1870, Page 5, column 3.
vii Regular Meeting of the Common Council, The Daily Milwaukee News (Milwaukee, Wisconsin), Tuesday, May 24, 1870, Page 5, Column 5.
viii Sunday Dance Ordinance, The Daily Milwaukee News (Milwaukee, Wisconsin), Wednesday, May 11, 1870, Page 5, column 4.
ix Sunday Amusements, The Daily Milwaukee News (Milwaukee, Wisconsin), Sunday, May 29, 1870, Page 5, Column 2.
x Wikipedia contributors, “Milwaukee Turners: History,” Wikipedia, The Free Encyclopedia, https://en.wikipedia.org/w/index.php?title=Milwaukee Turners, (accessed May 23, 2020).
xi The Sunday Dance Question in Milwaukee, The New York Times, (New York, New York), Saturday, June 4, 1870. page 7, Column 3.
xii Sunday Dancing, The North Iowa Times (Macgregor, Iowa) ·Wednesday, June 29,1870, Page 2.
xiii Arguments, op. cit., p.48.
xiv Wikipedia contributors, “James S. Brown,” Wikipedia, The Free Encyclopedia, https://en.wikipedia.org/w/index.php?title=James_S._Brown&oldid=932573224 (accessed May 23, 2020).
xv Parker McCobb Reed, The Bench and Bar of Wisconsin, (Milwaukee: P. M. Reed, Publisher) 1882, p. 229.
xvi Alfons J. Beitzinger, Edward G. Ryan, Lion of the Law (Madison, Wisconsin: The State Historical Society of Wisconsin) 1960, p. 100.
xvii Arguments, op. cit., p, 33
xviii Arguments, p. 43.
xix Arguments, p. 44.
xx Arguments., pp. 3 – 4.
xxi Arguments, p. 12.
xxii Constitution of the State of Wisconsin, Section 18.
xxiii Arguments, op. cit., p. 13.
xxiv Arguments, p. 14.
xxv Arguments, p. 30.
xxvi Justice Mallory Decides the Sunday Ordinance Invalid, The Daily Milwaukee News (Milwaukee, Wisconsin) Tuesday, June 28, 1870, Page 4, columns 4 – 5.
xxvii Sunday Dance in Milwaukee, Janesville Daily Gazette (Janesville, Wisconsin) Tuesday, June 28, 1870, Page 1.
xxviii The Sunday Dance, The North Iowa Times (Macgregor, Iowa), Wednesday, June 29, 1870, Page 2.
xxix Dance House Religion, Wisconsin State Journal (Madison, Wisconsin) Thursday, June 30, 1870, Page 1.
xxx The Sunday Ordinance, The Weekly Herald (Chippewa Falls, Wisconsin), Saturday, July 9, 1870, Page 2.
xxxi Regular Meeting of the Common Council, The Daily Milwaukee News (Milwaukee, Wisconsin) Wednesday, July 6, 1870, Page 2.
xxxii Turn and Schuetzen Fest, The Daily Milwaukee News (Milwaukee, Wisconsin) Monday, August 22, 1870, Page 5.
xxxiii H. Russell Austin, The Milwaukee Story: Making of an American City (Milwaukee, Wisconsin: the Milwaukee Journal Company) 1946, p. 140.