SOME NOTABLE SCOTCH LAWYERS-
JOHN HOPE.

IN

N the legal annals of Scotland the families of Hope and Dundas have a remarkable record in the number of judges they have given to the bench of the Court of Session. Of the Dundases five attained the judicial dignity; this, however, is outdone by the Hopes, who can claim six representatives as senators of the College of Justice, and of this number three were brothers. These three were the sons of Sir Thomas Hope, of Craighall, the founder of the legal dynasty, who for many years held the office of lord advocate in the reign of Charles I. With Sir Thomas was initiated the cus

tom which long prevailed for the lord advocate to plead in court with his hat on, this privilege being granted to him, as it appeared unfitting that a man should plead uncovered before his sons. In connection with our present sketch we are concerned only with Sir Thomas' third son, Sir James Hope, of Hopetoun. This Sir James was the grandfather of the first Earl of Hopetoun, from whom was descended Charles Hope, of Granton, for many years lord president of the Court of Session; he married his cousin, a daughter of the second Earl of Hopetoun, and of that union John was the eldest son.

through life, and more than once got him into difficulties. So early as 1822, while still an advocatedepute, he came into collision with the House of Commons. Mr. Abercromby (afterwards speaker) had brought under the notice of the House the relations of the lord advocate and certain of his subordinates with two newspapers in Scotlandthe Beacon and the Sentinel - which, in a very short time, achieved an unenviable notoriety by the number and virulence of their attacks on political opponent; and, in the course of his speech, Abercromby animadverted in severe terms on Hope's conduct as advocate-depute in connection with a prosecution relating to the affairs of these newspapers-conduct which, it was alleged, was intended to prejudice the trial of Stuart of Duncan, who, in a duel arising out of libellous productions in the Sentinel, had killed Sir Alexander Boswell. Part of the attack on Hope was based on a misapprehension, but Hope was naturally indignant, and, in a letter which he addressed to Abercromby, he gave vent to his indignation in strong terms. This letter, being brought before the House, was voted a breach of privilege, for which its author was ordered to attend at the bar, and give an explanation of his conduct. In obedience to this order Hope attended, and, in a speech marked by a good deal of spirit, he explained that, while he regretted having been guilty of a breach of the House's privileges, he had felt compelled to adopt the course he had, to vindicate his honor as a professional man and as a gentleman. The House was favorably impressed with his speech, and, accord

Mention has been made, in the sketch of Sir James Moncreiff in this series, of Hope's protest that he, as solicitor-general, was entitled to take precedence of Moncreiff as dean of faculty, and of Moncreiff's answer to the protest. Both on this occasion and in 1829, when Jeffrey was elected dean, Hope be

John Hope was born on the 26th May, 1794, and was educated at the High School and University of Edinburgh. Following in the footsteps of his distinguished father, he entered the Faculty of Advocates on the 23d Nov., 1816. With a lord president for his father, closely connected with the noble family of Hopetoun, with opinions on politi-ing to Hansard, he withdrew "amidst loud and cal affairs in harmony with those of the govern- continued cheers." Some discussion followed, and ment of the day, and with powers of no mean or- eventually it was resolved that no further steps der, Hope might be classed among those who have should be taken in the matter, in view of the exgreatness thrust upon them. His rise was extra-planation which had been offered. ordinarily rapid. Three years after his admission to the faculty he became an advocate-depute under Sir William Rae; and when only of seven years' standing he obtained the office of solicitor-general. From the first he appears to have been somewhat impetuous. Scott, writing in his Journal," thus refers to him: "Walked home with the solicitor-haved with much magnanimity. At that time it decidedly the most hopeful young man of his time; was not unusual for the offices of lord-advocate or high connections, great talent, spirited ambition, solicitor-general and dean of faculty to be combined a ready elocution, with a good voice and dignified in one person; the rule securing a fair distribution manners, prompt and steady courage, vigilant and of honors being of a much later date. In those circonstant assiduity, popularity with the young men cumstances, and considering that the conservatives and the good opinion of the old, will, if I mistake were still in the ascendant in the faculty, Hope, had not, carry him as high as any man who has arisen he chosen to push his claim, might easily have got here since the days of old Hal Dundas. He is hot, the deanship for himself. Some had put him forthough, and rather hasty; this should be amended. ward in 1829 to oppose Jeffrey, but he waived his They who play at single-stick must bear with claims in deference to his opponent's seniority and pleasure a rap over the knuckles." An inability high standing at the bar; not only so, but he moved to beau raps over the knuckles accompanied him | Jeffrey's election. He lost little by waiting; for, in

being announced to Hope he blazed up in a great fury and declared that such conduct was dishonorable. Inglis was not present at the moment, but on being told what had taken place, he rushed into the court in a great rage, flung down his papers and told Hope that as long as he sat on the bench he (Inglis) would never plead before the court again. Moncreiff (the late lord justice clerk, then at the bar) endeavored to bring about a pacification, but Inglis would have none of it until Hope wrote a letter apologizing for what he had said; and this be

the following year, on the accession of the Whigs to power, Jeffrey-thus anticipating the later practice-resigned the deanship on becoming lord advocate, and he was succeeded in office by Hope, who thereafter held it during the whole of his subsequent career at the bar. According to Cockburn, whose estimates-however picturesque and amusing -were, it must be remembered, apt to be colored by political feeling, Hope's style of oratory was of the foaming, declamatory style; "our high-pressure dean," he writes, screams, and gesticulates, and perspires more in any forenoon than the whole baring done matters were smoothed over. Besides his of England (I say nothing of Ireland) in a reign." Scott's estimate, already given, differs radically from this; he, of course, saw Hope with more friendly eyes.

In the great Auchterarder case, which aroused so much excitement throughout Scotland, and which led eventually to the secession of 1843, Hope was leading counsel for the patron and intruded minister. The case was argued before the whole court, the argument extending over ten days, and the delivery of the judgments occupying a further seven days. Hope was successful, judgment being given for the pursuers both in Scotland and in the House of Lords. This appears to have been about the only memorable cause in which Hope was engaged while at the bar. He, however, always had a very large practice, to which he devoted himself with extraordinary intensity. Late at night and early in the morning he was at his papers; and no client could ever complain that the dean had not made himself master of his facts; yet in his busiest years he could find time, as only the busiest men it seems can find time, to keep up his reading in general literature. | Gifted with a tenacious memory, it is said he never forgot even the smallest details of old cases or the books he had perused.

impetuosity he had other failings: he would take strong dislikes to particular members of the bar, and this is always a serious failing in a judge, although unfortunately, it is by no means uncommon. As to his judgments, the matter of most of them was very mediocre; his powerful memory was here rather a drawback than a help, for it made him cling too tenaciously to precedent. Yet, making every deduction, Hope was still a notable man, and a judge who endeavored to do his duty conscientiously and

well.

In the Court of Justiciary he presided at the trial of Madeline Smith in 1857 for poisoing her lover, and his summing up was generally considered a very impartial presentation of the facts. verdict, it will be remembered, was "Not proven."

The

He continued to discharge his various duties with his accustomed energy till very shortly before his death, which took place suddenly at his house in Moray-place, Edinburgh, on the 14th June, 1858. He had been engaged in his library between seven and eight o'clock, and by 11.30 he had breathed his last.-Law Times.

THE LAW OF THE VENEZUELAN CASE.

In 1841 his father resigned his office as lord presi-A

dent, being succeeded by Boyle, the lord justice clerk, the vacancy occurring in the latter office being filled by Hope, who, at the same time, was sworn of the Privy Council. Of his career on the bench there have been varying accounts. His industry he undoubtedly carried with him; that was accompanied, however, by his old impetuosity and hasty speech. An instance of this is related in the biography of Lord President Inglis. In one case in which Inglis was engaged Hope took a very strong view adverse to Inglis' contention sooner than perhaps he ought to have done, that is, without hearing the whole of the argument. Inglis, seeing this and feeling that it was of no use to go on then, strategically asked for a continuation of the case in accordance with the forms then in vogue. Before the case came on again an appeal had been taken to the House of Lords on another point, and on this

CAREFUL study of executive document No. 226 of the Fiftieth Congress, first session, wherein the President transmits to Congress the correspondence relating to the pending boundary dispute between Venezuela and British Guiana, discloses only a single issue; and this, in the clear light of international law, proves to be a very simple one, upon which no two intelligent arbitrators will be likely to disagree. The single issue is whether Spain, by merely discovering, without settling or occupying, the disputed Guiana coast, acquired such a title to the back-lying territory that every subsequent actual settlement of such territory by the Dutch became wrongful, and that only occasional armed protests by Spain, at intervals of years or centuries, were necessary to maintain her title, without any interval of permanent occupation by the Spanish from 1531 until to-day. In short, does discovery without occupation give title

against those who permanently occupy, but had not the good fortune originally to discover?

government and established boundaries, within which some places are left unoccupied. Vattel places in another category a newly discovered continent in which rival countries are obtaining title by occupancy. Of such a country he says (Book II, ch. vii):

that has not a master, and be little desirous of possessing the whole country. In this case another may take what the first has neglected,” etc.

The Venezuelan lawyers declare that what is expedient is not necessarily just, and plead that the Spanish could, without occupancy themselves, treat the occupancy by the Dutch as usurpation for an indefinite period. Vattel, on the contrary, expressly bases the doctrine that territorial titles between nations can arise by prescription — i. e., by lapse of time with possession adverse to the right— on the inexpediency of allowing old possessions to be ripped up, and settled populations to be compelled either to give up their settled homes or to come under a new allegiance. He says (p. 289):

In order to be assured that this is all there is of the Venezuelan question, it is to be observed that the diplomats who have at various times had charge of the case of Venezuela, do not deny the continu"If two or many nations discover and possess at ous possession of the disputed territory by the the same time an island, or any other desert land, Dutch alone for three centuries, but actually charge without a master, they ought to agree between it upon them as part of their fault, under the names themselves and make an equitable partition; but if of usurpation, intrusions and aggressions. Nor do they cannot agree, each will have the right of emthe Venezuelan diplomatists allege, except in the pire and domain of the parts in which they first case of a few missionaries to the Indians between settled. It may happen that a nation may be con1531 and 1580, that any Spanish residents or per-propriating to itself certain rights, in a country tented with possessing only certain places, or apsons rendering allegiance to Spain have ever gone into the disputed territory, except as small armed expeditions coming by land or sea merely to drive out or capture the Dutch. The sole tendency towards settlement of the country in dispute has been from the direction of Georgetown and the Essequibo river. The historians, geographers, mapmakers and publicists, from Raleigh to Humboldt, if they have carried the Dutch boundary westward to the Orinoco and Moroco, or the Barima, have talked about the Dutch possession or occupation; if they have carried the Spanish line eastward to the Essequibo, have in no case declared it to be a Spanish occupation, but only a domain or sovereignty or supposed abstract right. And when (Ex. Doc. 226, p. 34) Lord Salisbury in 1880 writes to Senor Rojas that to recognize Venezuelan "proprietorship to the Essequibo would involve the abandonment of a province inhabited in 1880 by 40,000 British subjects, and which has been in the uninterrupted possession of Holland and Great Britan successively for two centuries" - we find Venezuela replying in 1882, through Senor Seigas (p. 32), that "to deliver up territories in which populations have been founded cannot help producing griev-long space of time, under all the appearances of auces; in that, all the world is in accord. But the convenient is not the right, neither can it be confounded with it. He who has occupied a thing not his own, remains with the obligation to restitute it whenever it is demanded of him, and to indemnify al' the damages consequent upon the illicit act."

Inasmuch as the Venezuelan lawyers do not instance the building of a single town, or fort, or trade agency, or the occupancy by any Spanish settlers of the territory in dispute at any point, but confine themselves to recounting the encroachments and intrusions of the Dutch, the inference from the record is that no Spanish settlements occurred, and hence that the question is one between occupancy by one nation and naked claim of right to occupy without actual occupancy by another. The Venezuelan lawyers show that they cannot fortify their case by actual acts of occupancy, for they make a strained citation of Vattel, to the point that a country need not occupy the whole of its own territory, but can suit itself as to how much of it it will use. But this text (Vattel, Book II, ch. vii.) clearly refers to the case of a country having a master or

"Nature has not herself established property, and in particular with regard to lands. She only approves this introduction for the advantage of the human race. It would be absurd, then, to say that domain and property being once established, the law of nature can secure to a proprietor any right capable of introducing disorder into human society. Such would be the right of entirely neglecting the thing that belongs to him, of leaving it during a

being property abandoned, or that does not belong
to him, and of coming at length to deprive an hon-
est possessor of it, who has perhaps acquired a title
to it by burdensome conditions.
Were it permitted to have constantly recourse to
ancient times, there are very few sovereigns who
would enjoy their rights in security, and there
would be no peace to be hoped for on earth.”

What Vattel here condemns, namely, having recourse to ancient times to upset the effect of centuries of possession adverse to their claim of sovereignty, is exactly the case of the Venezuelans. During all the reigns from Philip II. to Philip V. of Spain, the Netherlands, which owned Dutch Guiana, were themselves under Spanish domination, as was also the present Venezuelan dependency. If Spain, when in full control of both parties to the contention, did not think it worth while to require the Dutch to retire behind the Essequibo, it would be a marvellous stretch of authority for the United States to disturb three centuries of possession, by the Dutch and their successors, at this late day. - The Nation.

The Albany Law Journal.

ALBANY, DECEMBER 14, 1895.

Current Topics.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

ONE

given upon your trial, it must be clear to any impartial mind that the jury were absolutely warranted and justified in finding against you the verdict they found. Even upon the testimony of the girl herself, if there could have arisen a reasonable doubt, you dispelled that doubt yourself—you and some of your witnesses, you particularly.

"Your own testimony dispelled any doubt. that could possibly arise upon this record as to

on the ground that they would tend to incriminate or degrade or disgrace you; your palpable exaggeration; your statement of occurrences, which to the mind of any man manifestly were false.

NE of the most sensational trials which has your guilt. Your refusal to answer questions taken place in many years has been that of Langerman, who was accused by Barbara Aub of criminal intimacy, and who was found guilty by a jury last week. The trial, in all its unfortunate details, has been fully published. There are many lessons which, as ministers would say, might be learned from this trial and its results, It shows, in the first place, that men are more inclined to believe the testimony of a woman who claims she has been wronged than to place credence in the evidence of one of their own sex. We doubt not but that many innocent men have suffered for acts for which they no more responsible than the guilty woman. The fearfulness of such a situation is apparent, and appeals most strongly to men who, though they respect the members of the gentler sex, must admit that women succumb to their passions as well as men. The case is

were

also an illustration of the kind of evidence which is given in many cases before a jury, where, as in this case, after a confession is made, it is shown by the party confessing that the testimony of those who were opposed to her is at least partly untrue. Naturally, all this is reflective on human nature. It only again shows its frailty and increases our mistrust. Perhaps the most important part of the case is the action of Recorder Goff after he received the confession of the complainant, Barbara Aub. For several days he took no action, and after what the daily papers call "a denouncement of the prisoner," the recorder sets him free on his own recognizance, grants a new trial and holds him as a witness against his complainant in the former trial. Criticism has come from various quarters in regard to the action of the recorder. His address to the prisoner, in discharging him,

was:

"Your statement of occurrences there were such as could scarcely in human reason be believed of the most abandoned woman. Had you confined yourself to the truth, even though you may have contended, and you may from your standpoint have believed yourself justly contending that you obtained the girl's consenthad you confined yourself to that, the jury might have acted and thought differently. But you did not confine yourself to that. You went beyond that, and you testified to a series of occurrences which upon their face carried with them their own refutation, because of their exaggeration and absolute improbability.

"And then, again, what contributed most to your conviction was your evil repute. Had you been a man of good character-could you have shown good character-and whose reputation was fair and good and upright and honest, you might never have had the verdict of guilty rendered against you which you have. It is only an illustration of how valuable a good character is in time of need and in the hour of peril. And I am satisfied that your evil repute, probably more than anything, placed you in the position you are.

"Since the rendering of the verdict I have, as the law gives me authority to do, inquired as to circumstances that would tend to mitigate your punishment as well as to circumstances that would tend to aggravate your offense. Those are the words of the statute.

"I have received a great many communications both for and against you. The peculiar

"Upon a careful review of the testimony | character of these communications is that those

VOL. 59 No. 24.

speaking in your favor have without an excep- I would allow a verdict of a jury to be thus tion been anonymous, and some of them have challenged. been disreputable. Those against you have been signed by reputable men and women who have offered to come forward and make affidavit -and some of them have done so-of former transaction of yours when nothing but the modesty of the woman prevented your being arraigned at the criminal bar then. And your life, it will appear, has been one not of loose morals, because this court is not going to be a censor of morals, but of unbridled lust, committed by violence, and you have even kept a diary as to the acts of your successful transactions. The wonder is you have escaped from being arraigned at the criminal bar so long.