USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 44
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HENRY MARTYN FINCH.
The subject of this sketch was born in the state of New York, De- cember 15, 1829. At an early age he removed to Michigan, and in 1850 to Milwaukee. He studied law in the office of Smith & Palmer,
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a firm composed of Abram D. Smith, subsequently an associate justice of the supreme court, and H. L. Palmer. In 1853 Mr. Finch was ad- mitted to the bar and in 1857 became a member of the then firm of Finch & Lynde, the name of which was changed to Finches, Lynde & Miller. His connection with that firm continued until his death, March 27, 1884.
In presenting to the supreme court the testimonial of the Milwau- kee bar concerning Mr. Finch (which was signed by James G. Jenkins, David S. Ordway, G. W. Hazelton, D. H. Johnson and G. H. Noyes) Mr. Jenkins said that soon after Mr. Finch became connected with the firm of Finches, Lynde & Miller he "attained to distinction in his pro- fession." At the early age of thirty years there was cast upon him much of the responsibility of important litigation of an established business; a burden sufficient to have daunted the spirit of one of much greater ex- perience. With the indomitable will and unflagging energy which, above all other qualities, characterized him, Mr. Finch devoted himself to the heavy labor so cast upon him; and from thence to the day of his death consecrated all vigor of mind and physical energy to the due per- formance of the duty thus imposed. For upwards of a quarter of a cen- tury he was an important factor in much of the weighty litigation in the state. The extent of his labor and his successes are in part preserved in the reports of this court from the fifth to the fifty-ninth volumes of the reports. In much of the important litigation in the federal courts he was a prominent actor; the reports of the supreme court of the United States alike testifying to the assiduous industry and ability which char- acterized the presentation of his cases. Those of us who were accus- tomed to meet him in opposition best realized how dangerous a legal adversary he was; how invincible must be the cause, how impenetrable the armor of defense, that could withstand his mighty attack. He was all lawyer. He suffered himself to entertain no ambition for public distinction. He deliberately avoided the ways of political preferment. He devoted his life and all manly ambition to the cause of that jealous mistress, the law, who permits no divided allegiance, who suffers no indifferent devotion.
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In many respects his career was remarkable, his success phenomenal. Without early academic or literary culture, without special gifts or grace as an orator, he went to the front and achieved high rank in the pro- fession, overcoming any disadvantages from want of early training by the assiduous labor and constant study of his. later years. His zeal for his client never suffered abatement, and knew no limit of honorable en- deavor. He seemed to clothe himself with the cause of his client, making that cause his own, defending it with all his powers and against all comers. And so he battled until the end, taking leave of the profes- sion, of courts, and of client, reluctantly, in the midst of an important trial, almost upon compulsion, and only when physical weakness could no longer permit the performance of duty. He dragged his tired body to his home and lay down and died.
He spent his life in the service of others, in devotion to his chosen profession, leaving to his family the noble legacy of a splendid name as an able lawyer and an honest man.
And so ends a life that battled against odds and won; an enduring example to the young of what may be overcome and what may be at- tained by earnest, plodding study, by unselfish devotion to duty, by un- flagging zeal, by indomitable perseverance.
The occasion relates only to the professional life of Mr. Finch. I may, however, be permitted, without trespassing upon propriety, to bear testimony to his high character in private life. As husband, father, and friend, he was loyal, devoted, indulgent, steadfast-"without fear and without reproach." Such a life is never wasted. Such an example is never lost. They bear fruit in that immortality of influence that, for good or for evil, flows from every life. Happily, here, that life and ex- ample go in aid of what is honest, what is noble, what is faithful, what is of good report. Such life and example ennoble human nature; dig- nify and glorify our noble profession.
Justice Cassoday, responding for the court, said that "the presenta- tion so appropriate and the remarks so fitting are heartily endorsed by the court.
"However sad, yet it is true that a strong, vigorous, and full-
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grown man, occupying a very high position in the very front rank of professional life, has fallen. He had been there and on duty for more than a quarter of a century. Hence the breach in the column has cre- ated a vacancy which necessitates a readjustment of the whole line. For twenty-seven years he had been a member of a firm which has be- come historic in the legal controversies of Wisconsin. That firm, from the beginning, contained two very learned, able, and experienced law- yers, who had been recognized as leaders in the profession almost from the organization of the territory (Asahel Finch, Jr., and William P. Lynde). Pressed and overwhelmed with the burdens and duties inci- dent to the career of such lawyers in a rapidly growing metropolis in a young and growing state, they wisely sought relief by taking into part- nership two young men, including the deceased (the other was B. K. Miller, Jr.), each peculiarly adapted to furnish and render aid in the di- rections most needed. Neither shrank from the position assigned, but each boldly and eagerly volunteered for the entire war. To the de- ceased was assigned the more active and public duties of trying cases in any and all the courts. This, of course, gave him, from the start, great opportunities, but necessarily forced upon him great responsibilities and labors. To meet and to discharge all these acceptably to his clients and with credit to himself, required great natural abilities and immense resources, accompanied by unremitting study and application. These considerations must, necessarily, have awakened in him a most lofty ambition and a commendable professional pride-ever pressing him for- ward to greater endeavor; for every lawyer who publicly tries a case is himself on public trial. But Henry M. Finch did not enter the profes- sion as a mere amateur. He meant business from the start, and never meant anything else. He frequently met those better furnished with ornate learning and the wisdom of the schools, but seldom any who more thoroughly studied and mastered the case in hand. To him the facts, the principles involved, and the decisions in support of them, were of far more importance than any mere oratorical performance. Hence, while others were studying to embellish their speech and to grace their diction, he was busy studying the law and the evidence. To him every
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lawsuit was a prospective battle, and the pleadings and preliminary motions were but skirmishes for strategic positions in the final strug- gle. Being, to his mind, an expected battle, he prepared himself in ad- vance to fight it out, and to force victory by superior fighting. Fully armed and equipped, and with no expectations of anything but a con- test, he was never taken by surprise, except when his opponents volun- tarily surrendered.
"He was bold, ardent, energetic, zealous, sanguine, exacting, severe, self-reliant, intense, and indomitable. These qualities gave him con- victions without doubts, impetuosity without weakness, courage with- out wavering, earnestness without dissimulation, and pertinacity with- out remission. With such a make-up, he necessarily believed in himself, his clients, and the causes of his clients, and made them his own because they were his clients'. Thorough in preparation, quick in perception, clear in statement, forcible in utterance, logical in argument-he was always strong, even when in the wrong, and almost irresistible when in the right. He never thought of defeat in advance, except as a possibil- ity, and then only to retrieve in the appellate court such a calamity in the trial court; and for that purpose he was in that court always prolific with objections. This made him appear to some as excessively tech- nical, and at times narrow, but it was the reserve force of a general wherewith to recapture the field in case he should be driven from it. As defeat was always unexpected, it was always unwelcome, and with him frequently unaccountable on the theory of an honest difference of opin- ion. To him every cause had two sides, and the right side was his side. Mistaken he might be, but it was an honest mistake, forced upon his convictions by the very laws of his being. He not only believed in his clients, but they believed in him, and well they might, for he vigilantly discharged every responsibility and conscientiously performed every duty, and his life was devoted exclusively to their interests. For them he was willing to spend and be spent, to sacrifice and be sacrificed, and by slow degrees the tragedy was completed. In this he was grandly heroic, but in so far as he was excessive he was unwise. It has been aptly said that his life was spent in the courts. It may be added that
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the courts always listened with interest, frequently with instruction, and generally with profit.
"There certainly have been but few, if any, lawyers in this state, who have in the same number of years tried and argued a greater num- ber of important cases. His practice was immense, his responsibilities numerous, his duties at times burdensome; but there was no flagging of interest, no abatement of application, no neglect of duty, even for that relaxation and recuperation so essential to the overworked lawyer. He had a large measure of professional success, and he has left memor- ials of his work among the records of most of the higher courts of the northwest, the supreme court at Washington, and many others.
"But mere professional success is not a sure test of manhood and character. That may be attained by one without sympathy, without friendship, without benevolence, without charity, without love, without virtue, without faith, without hope of immortality. To know the real man we must know something of his inner life. Public utterances can- not always be relied upon. Such utterances are usually made for an occasion, and with circumspection, and hence are more the revelation of a subject, or of other men, or of a cause, than of a speaker. It is in un- guarded moments that the heart makes its truest revelations. Then it reveals the hidden purposes of life, the spirit which moulds the character, tempers the disposition, shapes the conduct, gives direction to the in- tellect, and controls the will.
"I first met 'Matt.,' as we all called him, at Elkhorn, when we were both young in the profession. His boldness of speech, his clearness of perception, his aggressive manner, and his complete mastery of the question involved drew me toward him as one having an engaging and promising professional future. That acquaintance ripened into profes- sional intercourse, that intercourse into familiarity, that familiarity into friendship, which, I trust, continued to the end. When at the bar we often met while attending court, especially here at the capitol, and fre- quently walked about the park, about the city, and talked as lawyers loving their profession only talk. His motives always seemed to be pure, his utterances sincere, his dislikes undisguised, his friendships gen-
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uine, his integrity irreproachable, his beliefs earnest and emphatic, his hope of immortality permanent, his faith in Christianity unalterable. There was nothing negative in his make-up, no one ever charged him with being non-committal or with having any duplicity in his nature. All agree that he was genial, open-hearted, kind, social, benevolent, and generous. He was not always without a grievance, real or imaginary, and as to the supposed causes of such grievances his criticisms were often severe, sometimes unwarranted, and occasionally unjust and un- reasonable; but he was too bold and aggressive to remain silent, too honest to conceal, too exacting to overlook, too faithful to his own promptings to disregard or to allow to go unrebuked.
"Of his home life I have but little personal knowledge; but careful inquiry of those who know, and whose statements to me are always verities, reveals the fact that in that home no angry word had ever been spoken, no unkind remark ever uttered, no companionable urbanity ever neglected, no parental tenderness ever omitted; but, on the contrary, it was always pervaded by a spirit of mutual sympathy, mutual forbear- ance, mutual confidence, mutual trust, mutual love. Perhaps no higher praise can be given than to quote the language of one who knew him from early boyhood, but had for years been estranged from him by a bitter personal controversy and litigation, and yet who, upon his death, voluntarily wrote and published this touching tribute:
"'He made his way by dint of untiring labor and persevering will to a place among the foremost lawyers in the state. While this may be said of Mr. Finch's career as a lawyer. there was a brighter side to his character, and that was best exhibited in his own home. He was devotedly attached to his own family, and no father could be more considerate to his children, and no husband more tender and more thoughtful for the welfare of his wife, than he.'"
JOHN W. CARY.
John Watson Cary, for forty-five years a lawyer in Wisconsin, and for nearly all that time among the greatest of Wisconsin's lawyers, was born February II, 1817, at Shoreham, Vermont; his early life was passed
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on his father's farm and in attendance at school, including two terms at an academy. In 1831 the family removed to Sterling, Cayuga county, New York; the next year the subject of this sketch tried clerking in a store, but, not finding that employment agreeable, he returned to the home farm. Soon afterward he was enabled to gratify his ambition for learning by attending an academy at Hannibal, Oswego county, for two terms, when the exhaustion of his funds compelled him to return home, where he remained until 1837, engaged on the farm in summer and in teaching school in the winter. August, 1837, he entered the lyceum at Geneva, New York, and devoted his time to the study of Latin and Greek, boarding himself while there; subsequently he obtained private instruction; in September, 1838, he entered Union college, whence he was graduated in 1842. During the last year of his college course he studied law and later completed his preparation for admission to the bar by reading in an office at Auburn, New York. In January, 1844, he was admitted to the bar of the supreme court at Albany, Judge Nel- son presiding, and the next day became a solicitor in chancery, having been admitted by Chancellor Walworth. The following month he be- gan practice at Red Creek, Wayne county, New York. Here he served as postmaster.
In 1850 Mr. Cary removed to Wisconsin, locating at Racine; the fol- lowing year he formed a partnership with the late James R. Doolittle, which continued until 1853, when the latter became judge of the first circuit; in 1857 and 1858 he had partnership relations with A. W. Farr and Lewis M. Evans. During his residence in Racine Mr. Cary was state senator, 1853, 1854; mayor, 1857. In January, 1859, he removed to Milwaukee; his partners in the practice there were, successively, Wal- lace Pratt, A. L. Cary and J. P. C. Cottrill. He was a member of the city council in 1868 and of the popular branch of the legislature in 1872.
Soon after becoming a member of the Milwaukee bar Mr. Cary was employed as counsel by the trustees in the foreclosure mortgages upon the La Crosse & Milwaukee railroad, which resulted, after years of liti- gation, in the organization of the corporation now known as the Chi- cago, Milwaukee & St. Paul Railway company, which, by the enlarge-
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ment of its powers and the acquirement of various railway properties in several of the states and territories, became one of the great arteries of commerce in the northwest. At the time of his death, which oc- curred in Chicago on the 29th of March, 1895, and for many years pre- vious, he was at the head of the law department of that great corpora- tion. In the language of the memorial of the Milwaukee bar associa- tion, Mr. Cary, as the leading counsel of that corporation, "rose to a commanding position as one of the first corporation lawyers of the country, and his name and efforts are associated with as great contro- versies in connection with the establishment of the rights, powers and franchises of his client as were ever brought to judgment in the courts of this country. The record of his labor is preserved in the highest . court in the land. In those controversies he encountered some of the most brilliant intellects in the ranks of the profession, and single-handed conducted the combats in which he became engaged to successful is- sues. In the reports of the supreme court of this state, his argument of causes began with the third and extended to the eighty-ninth vol- ume. Held in the highest esteem by all courts before which he ap- peared, his rank and position as a lawyer was most enviable and crowned with deserved distinction. His advocacy of a cause was al- ways sincere and earnest, and no blemish appears on his professional escutcheon. Sometimes slow in processes of thought and reasoning, he was sure and steadfast in his conclusions. Each man is said to have his own vocation, and with our friend 'there was one direction in which all space was open to him. He had faculties silently inviting him thither to endless exertion.' This made him a lawyer par excellence. In his espousal of a cause he was true to his convictions and always honest with himself and the court, as well as with his client. Once reaching a firm conclusion, he answered the description of the poet: 'He stood four square to all the winds that blew.'
"Highmindedness was with him a controlling characteristic. In- flexible and incorruptible integrity distinguished his whole career. He never could be otherwise than manly and brave and true, for one of his chief possessions was that high nobility of nature which is the chief
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jewel of a truly great character. As he advanced in years he seemed to toss away 'the spoils of wrinkled age,' and moved on to the end with the same serenity of mind and persistent determination in the perform- ance of duty which characterized him in the vigorous years of earlier life.
"In his intercourse with his fellow-men and with his associates in professional labor he was always considerate and gentle. No unkind or reproachful word ever passed his lips. He was true and faithful in friendship, magnanimous in his dealings with others, and every act was prompted by the highest sense of honor. He was modest and un- assuming, simple and unaffected in manner, and admired, trusted and loved by all who knew him.
'In his family and home life He was all sunshine; In his face The very soul of sweetness shone.'
"Macaulay has said that there are a few characters which have stood the closest scrutiny and the severest tests; which have been tried in the furnace and proved pure; which have been weighed in the balance and have not been found wanting; which have been declared sterling by general consent, and which are visibly stamped with the image and superscription of the Most High.
"The friend whose death we deplore was one of those characters."
The memorial from which liberal quotation has been made was pre- sented to the Milwaukee bar association by a committee appointed for that purpose, viz .: A. R. R. Butler, Ephraim Mariner, Jerome R. Brig- ham, James A. Mallory, John J. Fish, David S. Ordway and Joshua Stark; gentlemen whose personal and professional characters have been approved by the test of almost a half century's active life in this state. Surely, he of whom such men would pen such a portrait must have closely corresponded to the portrayal, and been a model lawyer and man. The memorial was presented to the supreme court by J. V. Quarles, who did not make an address. H. H. Field read the tribute of Burton Hanson, who was associated with Mr. Cary in the legal depart-
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ment of the great corporation referred to. Mr. Hanson said: "It was my privilege to be associated with Mr. Cary during the last twelve years of his life, and I desire to pay my tribute of respect, and to bear testimony to his calm, strong mind, his stately equipoise, his broad equity, his inspiring truth, his breadth of view, his great and constant humanity, his tenderness as a husband and father, his constancy as a friend, his fairness, his honesty, his patience, his loyalty, and his good- ness. Each one of these qualities he not only possessed in a high de- gree, but he exemplified them all in that every-day life whose burdens we bear and whose vicissitudes are to us such a mystery. All who knew Mr. Cary are in accord in saying that he was a man greatly beloved."
At the time the supreme court was formally notified of Mr. Cary's death, like notice was given of the death of Moses M. Strong. In ad- dressing the court in memory of the latter, William F. Vilas digressed so far as to say of Mr. Cary that he was a massive and powerful lawyer, whose professional greatness has always seemed to me far beyond its measure in the common world. "Unostentatious, unpretending, with- out one single art to win attention or applause, he stands to me an ideal of sturdy, masterful, crushing, intellectual power in the law. Like the mills of the gods, he ground slowly, but he ground exceeding fine. When some great cause roused him to a full exertion and, summoning his forces, he bent himself to an analysis and exposition with the untir- ing constancy of which he was capable, I believe no advocate, whatever his gifts, could put him down before a court which recognized address to intellect as superior to the appeal to feeling. Amid all the brilliant achievements of the profession in this country, notable and admired as so many have been, I doubt if any should be ranked more able in con- duct, more complete in victory, more richly fruitful to interests in- trusted, than his preservation to his clients of the original properties of what is now the great Chicago, Milwaukee & St. Paul system of rail- roads, by his successive argument of eighteen successive cases, charged with varied and interesting questions, in continuous hearing before the supreme court of the United States, with resulting judgment in his favor ยท in every one. He was matched against the learned and brilliant Car-
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penter,* whom none could overthrow by any mere art or skill, and the contest was desperate. Cary's triumph was one which only a great lawyer could have won, equal in powers of mind to the greatness of his cause. Much more would I gladly add, were it needful, to set forth in clear remembrance the excellence of that calm, massive, steadfast char- acter, never moved from its fidelity to every-day duty of life by any trial, by storm or tempest, by temptation or by fear. From my earliest boy- hood I knew him as my father's friend, as, in my maturer years, I re- joiced in him as mine; and with the respect and honor which his quali- ties command in revered remembrance, I would lay on his grave the sweetest flower of tender regard."
Mr. Justice Winslow responded to the memorial, and Mr. Hanson's tribute (that of Mr. Vilas was made subsequently) on behalf of the court: "The death of John W. Cary closed a legal career which was not only distinguished and successful, but long, well-rounded and complete. It was a career such as is given to few lawyers. There came to him naturally and easily nearly all the great rewards which the profession holds out to its faithful members. These rewards came not through mere good fortune or chance of circumstance, but as the result of ability, industry and integrity; they came because they were deserved and earned.
"It has been justly observed that the state of Wisconsin was pecu- liarly fortunate in its early bar. There came to the state in territorial days and in the days of early statehood a band of educated lawyers, strong mentally and physically, combining the refinement of the scholar with the vigor and ambition of the sturdy pioneer. They came at the formative period of the state, when manners and customs were yet plastic, and when strong characters were certain to leave their impress for years and perhaps for all time. The roll of this early bar is indeed a brilliant one; but to call that roll now would be a melancholy
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