USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 45
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*It is said in the notice of Mr. Cary's career in the report of the American bar association, which notice was written, the editor understands, by Burton Hanson, that at one term of the supreme court of the United States Mr. Cary argued fourteen cases and won them all against such men as Caleb Cushing, Matt. H. Carpenter, Henry A. Cram and other eminent lawyers.
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task, so rare would be the answers of 'Adsum.' The names, however, will always shine on the pages of the constitutional journals and the early statute books of the state as well as the reports of this court. High up on this great roll stands the name of John W. Cary. It is true that he came to the state just after its admission to the Union; it is true, also, that his legislative career was comparatively short, but he at once took a deservedly high rank in the profession, and the influence that he thus exerted was unquestionably great. He became a member of a bar at Racine, than which none in the state was then more brilliant. It in- cluded either at that time or soon after such great names as Ryan, Strong, Doolittle, Lyon, Sanders and Fuller. Among such men it is high praise to say that as a lawyer Mr. Cary was their peer. While not as brilliant as some of them, none was more evenly balanced, none possessed more of the qualities of the great lawyer. In this bar Mr. Cary's progress was steadily onward and upward. Before many years the logic of events drew him to Milwaukee and placed him in charge of the legal interests of the greatest corporation of the state, if not of the west. In this capacity his ability as a lawyer and advocate was fully tested and his fame was fully and fairly earned. There were no breaks, no disappointing lapses in his career; it was steady, consistent and satis- factory from beginning to end.
"His last appearance in this court was in December last (1895), when he stood at this bar and argued two very important cases, reported in the 89th Wisconsin under the titles of Combes vs. Keyes and Chicago, Milwaukee & St. Paul Railway Company vs. Hoyt. It was then gen- erally remarked that his thought was as clear, his grasp as vigorous, his diction as lucid as it had ever been. Time seemed to have dealt very gently with him, and there seemed no reason why he should not yet enjoy years of activity and usefulness. But it was not to be. Three months later the end came. It was sudden, but not untimely. Both body and brain were undoubtedly weary after a long, eventful and busy life. His tasks were finished; his work was done; the record was made up; the book. closed. 'God's finger touched him, and he slept.'"
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DEWITT DAVIS.
Dewitt Davis, who was for many years an active member of the bar, and who is still a much esteemed citizen of Milwaukee, located there originally in 1857 to accept a position in the public schools, but with a well defined purpose to engage in the practice of law later on. He was a well educated, well balanced young man, who came of rather notable New England ancestry, and who had received in early life that careful industrial and economic training which has always been a prominent feature of the social system in rural New England.
His ancestors on the paternal side were of Welsh origin, but family records fail to disclose the exact date at which the family tree took root in this country. The earliest record obtainable shows that John Davis was born in Derby, Connecticut, about 1650, and it is probable, there- fore, that the immigrant ancestor of the family was among the earliest colonists of New England. Descendants of this John Davis were Cap- tain Joseph Davis and Colonel John Davis, whose names figure in revo- lutionary annals, Colonel John Davis having commanded for a consid- erable time the second regiment of Connecticut militia. Joseph W. Davis, a descendant-five generations removed of John Davis, of Derby, married Henrietta Newton, and Dewitt Davis is one of the children born of this union.
The Newton family history dates back to 1647, when Roger New- ton, who married a daughter of the famous Rev. Thomas Hooker, founder of the Connecticut colony, settled at Farmington, Connecticut, to become the first minister of the gospel in that colony. At a later date he went to Milford, Connecticut, and was the second clergyman who located in that place.
Dewitt Davis was born in the town of Woodbridge, a few miles dis- tant from New Haven, January 31, 1833. He was brought up on a farm of the typical New England kind, which could only be made to support a family when industry and economy on the part of all the members of the household were recognized as cardinal virtues. In early boyhood,
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and until he was about eighteen years of age, his time was divided be- tween farm labor and attendance at the public schools of his native town. Having an ambition to obtain what in those days was termed "a liberal education," he left the farm to become a student at Wesleyan university, and being partially dependent upon his own resources, he taught school at intervals to obtain the means necessary to defray his expenses while in college. Before completing the full college course he quitted the university to become principal of an academy at Warren, Pennsylvania. He remained at Warren a year, and while there began the study of law under the preceptorship of Glenni W. Schofield, who achieved distinc- tion during the war period as a representative in Congress from Penn- sylvania, and later as a judge of the court of claims at the national capital. From Warren, Mr. Davis went to Milwaukee at the instance of C. K. Martin, with whom he had been intimately acquainted as a student at Wesleyan university. Martin, who had come here a year or two earlier, retired at that time from the position of principal of the old fourth ward school, and Mr. Davis became his successor. His connec- tion with the city schools in this capacity continued three years, and at the end of that time he entered the law office of Butler, Buttrick & Cott- rill, where he completed the course of study necessary to qualify him for admission to the bar. He was admitted to practice in the fall of 1861, and at once formed a partnership with Frederick W. Pitkin-at a later date governor of the state of Colorado-under the firm name of Pitkin & Davis. In 1863 Walter S. Carter, who has since achieved unusual dis- tinction as a lawyer in New York city, became a member of the firm, and this co-partnership continued until 1865, when Mr. Pitkin retired from the association. The firm of Carter & Davis continued in existence until 1869, when Mr. Carter withdrew, and Mr. Davis associated with himself as junior partner, James G. Flanders, then a young lawyer of rare promise, who has since fully realized the expectations of his friends. In 1875 A. R. R. Butler became a member of the firm, the style of which was changed to Butler, Davis & Flanders, and this association continued a year or more, the partnership being dissolved in 1876. Mr. Davis con- tinued the practice alone for a time, and then with one or two changes
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of partners until 1881, when the impairment of his health, resulting from close application to professional work, caused him to retire from active practice. His professional career may be said, therefore, to have cov- ered a period of twenty years, and during that time no member of the Milwaukee bar devoted himself more faithfully and conscientiously to the interests of his clients. A capable, well-read and well-informed lawyer, he was especially successful in the conduct and management of commercial law business, and during the later years of his practice he had a large patronage of this character. Regarded always as a candid, judicious and safe counselor, he took rank among the abler lawyers of the bar also in the careful preparation of his cases and comprehensive knowledge of the law involved in litigation with which he was identi- fied. Honorable in his methods of practice, and courteous in his treat- ment of his fellow practitioners, his relation to the bar during his long connection with it has been such as to leave a pleasing impress upon his professional associates and contemporaries.
In all the other relations of life, as well as in the field of professional labor, his career has been such as to win for him the kindly regard and high esteem of the community with which he has been so long identified. Never an active partisan, he has been a pronounced republican in his political affiliations since the organization of that party. The first office he ever held was that of member of the school board in the early sixties, and in 1864 he was elected a member of the assembly. He was the only republican elected to any office of consequence in Milwaukee county that year, and the result was a somewhat flattering testimonial to his personal popularity. At a later date he was prominently mentioned in connection with one of the local judgeships, but the condition of his health at that time prevented him from giving serious consideration to this suggestion of his friends.
As president of the young men's library association and chairman of the lecture committee for a period of two years, Mr. Davis rendered a valuable service to the city, through his activity in promoting two suc- cessful lecture courses which were not only important educational enter- prises, but brought to the association considerable funds with which
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books were purchased for its valuable library which constituted the nucleus of the present public library.
In 1863 Mr. Davis made a unique trip across the Atlantic, sailing from Milwaukee on the "Hanover," a vessel built and loaded there. He sailed on this vessel as super cargo, and was six weeks making the voyage to Liverpool. After spending some time abroad he came back by steamer, the trip being a most enjoyable one and one to which some historic interest attaches.
During the later years of his life he has devoted much of his time to travel and literature. He is much interested in educational matters, and is at present the president of the trustees of Milwaukee-Downer college. 1
DON A. J. UPHAM.
Don A. J. Upham came to Milwaukee, a scholarly and accomplished young man, to begin the practice of his profession, in 1837, and his pro- fessional and public life covered a period of more than thirty years. He was born in Weathersfield, Windsor county, Vermont, on the 31st day of May, 1809. His father, Joshua Upham, occupied the homestead and farm in the valley of the Connecticut river that was first located by his grandfather, William Upham, at the close of the revolutionary war, and which now has been in possession of the family for over one hundred years. The family is one of the oldest in New England. About twenty years ago the late Dr. Albert G. Upham, of Salem, Massachusetts, com- piled and published the genealogy of the Upham family, in which he distinctly traced the ancestors of William Upham back to John Upham, who emigrated from the west of England and settled in Malden, near Boston, about sixty years after the first landing of the Pilgrims at Plymouth Rock.
The Upham genealogy, edited by Captain F. K. Upham, and pub- lished in 1892, contains a full history of this family, and shows the descent from John Upham of nearly all persons bearing the name of Upham in the United States.
The father of D. A. J. Upham, when he became sixteen years of age, asked him if he could determine on what business or profession he would
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select, with a determination to follow it for life. After some deliberation he chose the profession of law. He was then immediately sent to the preparatory school at Chester, Vermont, and afterward to Meriden, New Hampshire, and at the age of nineteen he entered the sophomore class at Union college, New York. The late Dr. Eliphalet Nott was then president of that institution. -
He graduated in 1831 with the highest standing in a class of about one hundred. In the September following he entered the office of Gen- eral James Tallmadge, in the city of New York, as a law student. After remaining in this office about six months he found that it would be necessary in some way to raise means to complete his education as a lawyer. On the recommendation of President Nott he was appointed assistant professor of mathematics in Delaware college, at Newark, in the state of Delaware. He held this position for three years, during which time he wrote editorials for the Delaware Gazette, then the lead- ing democratic paper of Delaware, and at the same time he had his name entered as a law student in the office of the Hon. James A. Bayard, of Wilmington, Delaware, late United States senator from that state.
In 1835, after attending a course of law lectures in the city of Balti- more, he was admitted to the bar and commenced the practice of law in the city of Wilmington. He was elected city attorney of Wilmington in 1836. From 1834 to 1837 he was editor and proprietor of the Dela- ware Gazette and American Watchman, published at Wilmington. In the meantime his attention had been called to the growing settlements in the far west.
After the close of the Black Hawk war, it was said a place called Chicago would soon be a commercial point of importance. In 1836 the territory of Wisconsin was organized, containing within its limits the territory now comprising the states of Wisconsin, Iowa and Minnesota. He determined to explore the western country, and seek a location in which to pursue his profession.
In the spring of 1837 he started for the west, and in June arrived in Chicago by the route of the upper lakes. Chicago was then a very small village and seemed to be located in an extensive marsh, the only high
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ground being a few acres on the lake shore, where the old fort was located.
He was not pleased with Chicago. In company with two friends he traveled through Illinois in a farmer's wagon by the way of Dixon's ferry, camping out as occasion required, and arrived at the Mississippi near the mouth of Rock river. He visited Burlington and Dubuque, now in the state of Iowa, and also the mineral regions in western Wis- consin, and endeavored to find some conveyance east through Wiscon- sin to Milwaukee, but was unable to do so, and was obliged to return by way of Galena to Chicago, and from there by steamer to Milwaukee. The first settlement in Milwaukee of any importance was made the year before. The situation and prospects pleased him, and he finally deter- mined to locate there.
The difficulties attending the practice of the lawyers who first set- tled in the territory can hardly be appreciated at this day. His first case of any importance was in the supreme court of the territory. At the fall term of the district court a judgment for a large amount had been obtained against one of the most extensive dealers in real estate in Milwaukee, and his new dwelling house and a large amount of prop- erty were advertised for sale on execution. He applied to the young lawyer to take the case to the supreme court and enjoin the pending sale. It was necessary that one of the judges should allow the writ of injunction. Judges Frazer and Irwin were out of the territory, and there was no person who could allow the writ except Judge Dunn, who resided at Elk Grove, in the western district, about one hundred and sixty miles from Milwaukee. There were no stage coaches or means of conveyance through the territory. The only practical way was to go on horseback through what is now Rock and Green counties, and the only track for a considerable portion of the way was an Indian trail across the prairies. He accordingly started to make the trip in this way late in November, with barely time to accomplish it.
Mr. Janes had already settled in Janesville, and the miners from the west had a settlement at Sugar river diggings in Green county. These points he reached after having been delayed one day in crossing Rock
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river, from the ice and high water. He reached Mineral Point and Elk Grove without difficulty, had his writ allowed by the judge, and on his return to Sugar river found he had but two nights and one day in which to reach Milwaukee before the sale, a distance of about one hundred miles. He started east for the James settlement early in the evening, and as he reached the prairie he found that in places it was on fire, and with difficulty he pursued his route. As the night advanced, it became dark and cloudy, and toward midnight the wind arose and a scene pre- sented itself that baffled description. On reaching high ground the view was extensive, and the fire with the increasing wind spread in every direction. The low grounds, where the vegetation had been rank, appeared to be on fire. As far as the eye could reach, and in every direc- tion, the flames seemed to shoot up to the clouds with increasing vio- lence. The night was dark and not a star to be seen. It seemed as if the last day had arrived, and that the final conflagration of the world was now taking place. The young lawyer found himself surrounded with difficulties of which his knowledge of Blackstone and Coke afforded no solution, and he had at last to bring in his knowledge of other sciences in order to effect an escape. He was lost on the prairie. After diligent search he could find no trace of the trail or track he wished to pursue. He was near half a day's ride from any habitation, and he could not ascertain in what direction he was going. By keeping on the high por- tions of the prairie where. the vegetation had been light, and which was mostly burnt over, he could remain in comparative safety, but to cross the ravines or low ground was impossible, or attended with the greatest danger. For several hours he wandered in various directions, without knowing where he was going. At last the clouds seemed to break away at one point and stars became visible.
The question was to determine to what constellations they belonged. He was not long in doubt, for two clusters of stars appeared, which he recognized as well known southern constellations. He knew these stars must now be near the meridian, and at the extreme south. By keeping them at the right he was now able to pursue a course as far as practicable
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in an easterly direction, and at last reached Rock river, about two miles south of Janesville.
He now had one day and night in which to reach Milwaukee, a dis- tance of about sixty miles. With a worn out and jaded horse, this was accomplished with great difficulty. He arrived about one hour before the sale, to the astonishment of the opposing counsel and great joy to his client, who had long been anxiously awaiting his arrival.
Such are some of the incidents that attended the practice of the pro- fession in the early settlement of Wisconsin.
The following year the government lands were brought into market, and the most important business of the lawyers was in proving up pre- emptions to important locations, the sites of future towns and cities. He was employed in the important case of Gilman vs. Rogan, before the land office, in proving up a pre-emption to the land where the city of Beloit is located. After the settlers had obtained titles to their land the practice was not essentially different from that in the older states.
An examination of the territorial court records at Milwaukee shows that Mr. Upham was one of the most active and industrious lawyers of his day, and that his services as counsel and advocate were constantly sought after in the litigation of that period. It has been asserted by some who are acquainted with the early territorial litigation that for .many years the practice of Mr. Upham exceeded that of any other Mil- waukee lawyer.
Mr. Upham was not a politician in the true sense of the word. He had no taste for the bitterness, animosity and personal abuse that pre- vailed in the party contests at that time. He filled, however, some im- portant positions. He was several times a member of the territorial council at the earliest sessions of the legislature at Madison. He was a member of the first convention that was called to form a constitution for the state of Wisconsin, and was elected president of that convention. He was nominated by the democratic party for governor of the state as the successor of Governor Dewey. He took no active part in the can- vass. The contest was very close and bitter, from dissensions in the party, and the result doubtful, but the state canvassers then at Madison
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declared his opponent elected by a small majority .. He was twice elected mayor of the city of Milwaukee, being the successor of Juneau and Kilbourn. He was afterward appointed United States attorney for the district of Wisconsin, an office he held for one term of four years. After thirty years' successful practice in Milwaukee he was compelled by ill- health to retire from the profession.
In justice to the memory of Mr. Upham it should be stated that he and many of his friends believed that he was actually elected governor of the state of Wisconsin, but was counted out by means of spurious returns which were made to the state canvassers, similar in many ways to the spurious returns which were made public at a later day in the contest and trial between Bashford and Barstow. The thinly set- tled condition of the state at that time, the method of conducting elec- tions and conveying the returns made it possible for the unscrupulous to impose false and fictitious returns from distant precincts upon the state canvassers, and lack of means of communication with the remote parts of the state rendered it impossible immediately to discover the impositions. The friends of Mr. Upham later on believed that they had obtained satisfactory evidence showing the errors in votes as counted by the state canvassers, but as this evidence was not obtained until about the close of the term for which the friends of Mr. Upham believed him to have been elected, nothing could be done. The political history of the state by the late A. M. Thompson has information upon this subject.
He was married in 1836 to Elizabeth S., daughter of Dr. Gideon Jaques, of Wilmington, Delaware. The Jaques family was one of the oldest in New Jersey, and descended from the first French Huguenots that came to this country. Mr. and Mrs. Upham left five surviving children, the eldest of whom is Colonel John J. Upham, of the United States army. His eldest daughter, Carrie J., is married to Colonel George H. Raymond, of Smyrna, Delaware; the second daughter, Addie J., is the wife of Henry B. Taylor, Esq., merchant, of Chester, Penn- sylvania; and the youngest, Sallie J., is the wife of Chief Engineer George B. Ransom, of the United States navy, who served on the United States cruiser Concord, May 1, 1898, in the battle at Manila. The
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youngest son, Horace A. J. Upham, is a graduate of the university of Michigan, and a member of the law firm of Fish, Cary, Upham & Black, of Milwaukee.
At the close of the late war, Colonel Upham, on his return from a trip to Europe, brought home and presented to his father an astro- nomical telescope of large power that had just been introduced into England. It is portable, and intended for private libraries. With the aid of this instrument his father for several years thereafter, as his health and time would permit, reviewed his early astronomical investigations, informing himself of the progress made in that science during the last forty years, and verifying to some extent the computations made annually at the astronomical observatory at Washington. Mr. Upham's life, although not characterized by any remarkable events or achieve- ments, was a useful and honorable one, and noted for great industry and activity. He discharged all the duties devolved upon him as a lawyer and legislator with marked ability and integrity. As a citizen he was public-spirited and patriotic. In his social relations, as husband, father and neighbor, his conduct was not only exemplary, commanding re- spect, but it was characterized by affection and kindness and by genial intercourse with friends and neighbors. He was in all respects a well- bred, accomplished gentleman, and his impress is visible in his family. Mr. Upham died in Milwaukee, July 19th, 1877, and rests in Forest Home cemetery.
WALTER S. CARTER.
Walter Steuben Carter, formerly of the Milwaukee bar, now of New York city, was born in Barkhamsted, Litchfield county, Connecticut, February 24, 1833, son of Evits and Emma (Taylor) Carter. His ances- try is mainly English and Welsh, a single line extending into France. His earliest American ancestor was Elder William Brewster, of the May- flower, from whom he is eighth in lineal descent. He is also descended from Thomas Gardner, overseer of the first colony of emigrants that landed at Cape Ann, Massachusetts colony, in 1624. Others of his ancestors were of the distinguished companies that came to that colony
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