Two previous installments of “Great Moments in Pre-Talossan History” (GMiPTH, Beric'ht #1 and GMiPTH, Beric'ht #3) recounted stories of Milwaukee's role in the Underground Railroad.  This article will discuss another notable incident from Talossa's civil rights history.

The Territory of Wisconsin was established by the U.S. Congress in 1836.  Its population grew rapidly, and within ten years the territorial legislature decided to pursue statehood.  The first attempt at a state constitution was defeated in a referendum in 1847, and a second constitutional convention was called during the same year.

Progressive elements were strongly represented in Wisconsin politics from the beginning, as illustrated by the rapid growth of the abolitionist movement in the territory.  The first draft of a state constitution discussed during the 1847 convention limited the electoral franchise to “free white male persons, of the age of twenty-one years or upwards”-- an unremarkable provision for the 1840s.  But Milwaukee delegate Horace Chase (who would later serve as a state legislator and mayor of Milwaukee) moved to adopt universal male suffrage by striking the word “white” from this provision.  His motion was defeated, but as a compromise the convention agreed to extend the franchise to American Indians, and also give the power to the state legislature to further expand the right of suffrage by law, so long as such law “shall have been submitted to a vote of the people at a general election, and approved by a majority of all votes cast at such election.”

The constitution so proposed was approved by referendum in March 1848, and Congress admitted Wisconsin as a state two months later.  The newly-constituted state legislature (including Horace Chase) wasted no time in passing a bill that would grant black citizens the right to vote.  As required by the constitution, this bill would have to be approved by the people to take effect, and so it was placed on the ballot at the general election of 7 November 1849.  Some 30,000 citizens participated in this election, but only 5,265 cast votes in favor of black suffrage.  The Milwaukee Sentinel (then under the editorship of Rufus King) had editorialised strongly in favour of the bill's approval, and lamented its apparent failure.  "Apparent" failure?  We will return to that later.

We turn now to Ezekiel Gillespie.  Born a slave in Tennessee in 1818, he somehow raised $800 to buy his own freedom and moved to Indiana.  The climate in Indiana became less welcoming for free blacks after the passage of the Fugitive Slave Act in 1850, and Gillespie moved on to Wisconsin, settling in Milwaukee's East Side.  In 1852, he owned a grocery store at the corner of Mason & Broadway in Fiova Province.  By 1859, he had taken a job as messenger at the head offices of the Milwaukee & St. Paul Railroad on E. Water Street in Fiova.  Apparently he was successful enough in his career to employ a German maid in his family's home.  (His children would later recall that he and his wife - a mulatto of part German-Jewish ancestry - often spoke German or Yiddish with each other when they didn't want the children listening in on their conversation.)

Despite his personal success, Gillespie remained mindful of the plight of others of his race.  He was a leader in the local Underground Railroad station, and involved in the Joshua Glover affair (GMiPTH, Beric’ht #1).  He became acquainted with local abolitionist activist Sherman Booth, and regularly advertised his grocery store in Booth’s paper, the Wisconsin Free Democrat.  Thus, Gillespie was the perfect person for Booth to approach in 1865 to discuss a bold idea he had been working on.

Since the (apparent) failure of the 1849 referendum on black suffrage, a similar referendum had been defeated in 1857, and another was on the ballot for the election scheduled for 7 November 1865.  But Booth was not optimistic about its chances of passage.  Instead, he started thinking more deeply about the results of the 1849 referendum.  Though only 5,265 of 30,000 voters had cast ballots in favour of black suffrage, only 4,075 had voted against the proposal.  The remainder simply had not voted on that question.  But a law to broaden the franchise must be “submitted to a vote of the people at a general election, and approved by a majority of all votes cast at such election.”  Did that mean “a majority of all votes cast” on any question in the election, or all votes cast on the voting rights referendum?  If it were the latter, the 5,265 votes in favour of the 1849 referendum beat the 4,075 votes opposed, and blacks already had the right to vote in Wisconsin!  Booth decided to test the idea, and Gillespie agreed to help.

On 31 October 1865, Gillespie, accompanied by Booth, went to the voter registration board (fittingly located at Best’s Beer Hall, on N. Water Street between Kilbourn and State in Fiova) to register to vote.  As expected, his application was rejected.  He went to his polling place anyway, bearing an affidavit explaining the reason for the absence of his name from the list of registered voters, and affidavits from two neighbors attesting to his precinct of residence.  Again he was turned away – and this time his next stop was a lawyer’s office.

Booth took Gillespie to Byron Paine, the attorney who had defended Booth in the aftermath of the Glover escape.  Since then, Paine had served for a while on the Wisconsin Supreme Court, then resigned from the bench to serve in the Civil War, and was now back in private practice in Milwaukee.  Paine filed suit against the election inspectors, charging that they “wrongfully and illegally refused to receive the plaintiff’s vote, or to deposit the same in the ballot box, for the sole reason that he was a person of African descent.”  The defendants demurred to the complaint, both sides waived trial and argument, and the judge sustained the demurrer (dismissed the case as legally insufficient).  The stage was set for a speedy appeal to the state supreme court.

The Wisconsin Supreme Court at that time consisted of Chief Justice Luther S. Dixon and Associate Justices Orsamus Cole and Jason Downer (all three of whom would eventually retire to and pass away in Milwaukee).  Jason Downer was a former editor of the Milwaukee Sentinel, and is the namesake of Talossa’s Downer Avenue as well as Downer Woods (otherwise known as the Enver Hoxha Rabbit Preserve) in Atatürk Province.  He had been appointed to the court to fill the vacancy created by Paine’s resignation.  Justice Downer wrote the court’s opinion in the case of Gillespie v. Palmer and others, 28 Wis. 544 (1866), stating in part:

To declare a measure or law adopted or defeated – not by the number of votes cast directly for or against it, but by the number cast for and against some other measure, or for the candidates for some office or offices not connected with the measure itself, would not only be out of the ordinary course of legislation, but, so far as we know, a thing unknown in the history of constitutional law. It would be saying that the vote of every person who voted for any candidate for any office at such election, and did not vote on the suffrage question, should be a vote against the extension of suffrage.

The unanimous decision was that the 1849 referendum had actually passed, making the 1865 referendum (in which, just as Booth had feared, the nays outnumbered the yeas) moot.  The Wisconsin Supreme Court thus ruled that blacks actually had had the legal right to vote in Wisconsin for 17 years--they just didn't know it.  As far as I can tell, Wisconsin was the only U.S. state to change its laws to grant blacks the right to vote before the end of the Civil War (although this was not recognised to be the case until after the Civil War).  A handful of Northeastern states never had a racial qualification for the franchise, and a number of others originally lacked such a qualification but added one between statehood and the Civil War, but Wisconsin is the only state that went the other way.

Byron Paine would be re-appointed to the Wisconsin Supreme Court the next year when Justice Downer (who never really cared for judicial work) resigned to make room for him and returned to his law practice in Milwaukee.  Gillespie & his wife were instrumental in establishing the first African Methodist Episcopal church in Milwaukee (and Wisconsin) in 1869, which was originally established in the East Side but later moved south of Talossa, and survives today as St. Mark AME Church.  Gillespie moved away from Milwaukee in 1890, following his job when the Milwaukee & St. Paul Railroad changed its name to the Chicago, Milwaukee & St. Paul Railroad and moved its head office to Chicago.  There he passed away in 1892, but his remains were returned to Milwaukee, where he rests a few miles west of Talossa in Forest Home Cemetery, along with his friend Sherman Booth and Justice Downer.


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