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SOME NOTABLE SCOTCH LAWYERS - through life, and more than once got him into diffiJOHN HOPE.
culties. So early as 1822, while still an advocate
depute, he came into collision with the House of N the legal annals of Scotland the families of Commons. Mr. Abercromby (afterwards speaker)
Hope and Dundas have a remarkable record in had brought under the notice of the House the the number of judges they have given to the bench relations of the lord advocate and certain of his of the Court of Session. Of the Dundases five at- subordinates with two newspapers in Scotland tained the judicial dignity; this, however, is out- the Beacon and the Sentinel – which, in a very done by the Hopes, who can claim six representa- short time, achieved an unenviable notoriety by tives as senators of the College of Justice, and of the number and virulence of their attacks on this number three were brothers.
These three were political opponent; and, in the course of his the sons of Sir Thomas Hope, of Craighall, the speech, Abercromby animadverted in severe terins founder of the legal dynasty, who for many years on Hope's conduct as advocate-depute in held the office of lord advocate in the reign of nection with a prosecution relating to the affairs Charles I. With Sir Thomas was initiated the cus
of these newspapers-conduct which, it was altom which long prevailed for the lord advocate to leged, was intended to prejudice the trial of Stuart plead in court with his hat on, this privilege being of Duncan, who, in a duel arising out of libellous granted to him, as it appeared unfitting that a man productions in the Sentinel, had killed Sir Alexshould plead uncovered before bis sons. In con- ander Boswell. Part of the attack on Hope was nection with our present sketch we are concerned based on a misapprehension, but Hope was naturally only with Sir Thomas' third son, Sir James Hope, | indignant, and, in a letter which he addressed to of Hopetour. This Sir James was the grandfather Abercromby, he gave vent to his indignation in of the first Earl of Hopetoun, from whom was de- strong terms. This letter, being brought before the scended Charles Hope, of Granton, for many years House, was voted a breach of privilege, for which lord president of the Court of Session; he married its author was ordered to attend at the bar, and his cousin, a daughter of the second Earl of Hope- give an explanation of his conduct. In obedience toun, and of that union John was the eldest son, to this order Hope attended, and, in a speech marked
John Hope was born on the 26th May, 1794, and by a good deal of spirit, he explained that, while was educated at the High School and University of he regretted having been guilty of a breach of the Edinburgh. Following in the footsteps of his dis House's privileges, he had felt compelled to adopt tinguished father, he entered the Faculty of Ad- the course he had, to vindicate his honor as a provocates on the 230 Nov., 1816. With a lord fessional man and as a gentleman. The House was president for his father, closely connected with the favorably impressed with his speech, and, accordnoble family of Hopetoun, with opinions on politi- ing to Hansard, be 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 | Mention has been made, in the sketch of Sir James to the faculty he became an advocate-depute under Moncreiff in this series, of Hope's protest that he, Sir William Rae; and when only of seven years' as solicitor-general, was entitled to take precedence standing he obtained the office of solicitor-general. of Moncreiff as dean of faculty, and of Moncreiss's From the first he appears to have been somewhat answer to the protest. Both on this occasion and impetuous. Scott, writing in his “ Journal,” thus in 1829, when Jeffrey was elected dean, Hope berefers 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 bere since the days of old Hal Dundas. He is bot, 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
the following year, on the accession of the Whigs being announced to Hope he blazed up in a great to power, Jeffrey-thus anticipating the later prac- fury and declared that such conduct was dishonortice--resigned the deanship on becoming lord ad-able. Inglis was not present at the moment, but on vocate, and he was succeeded in office by Hope, being told what had taken place, he rushed into the who thereafter held it during the whole of his sub-court in a great rage, flung down his papers and sequent career at the bar. According to Cockburn, told Hope that as long as he sat on the bench he whose estimates—however picturesque and amusing (Inglis) would never plead before the court again.
- were, it must be remembered, apt to be colored Moncreiff (the late lord justice clerk, then at the by political feeling, Hope's style of oratory was of bar) endeavored to bring about a pacification, but the foaming, declamatory style: our high-pressure Inglis would have none of it until Hope wrote a letdean," he writes, screams, and gesticulates, and
ter apologizing for what he had said; and this beperspires more in any forenoon than the whole bar ing done matters were smoothed over. Besides his of England (I say nothing of Ireland) in a reign.” | impetuosity he had other failings: he would take Scott's estimate, already given, differs radically strong dislikes to particular menibers of the bar, and from this; he, of course, saw Hope with more
this is always a serious failing in a judge, although friendly eyes.
unfortunately, it is by no means uncommon. As to In the great Auchterarder case, which aroused so
his judgments, the matter of most of them was very much excitement throughout Scotland, and which mediocre; his powerful memory was here rather a led eventually to the secession of 1843, Hope was draw back than a belp, for it made him cling too leading counsel for the patron and intruded minis- tenaciously to precedent. Yet, making every deter. The case was argued before the whole court, duction, Hope was still a notable man, and a judge the argument extending over ten days, and the de- who endeavored to do his duty conscientiously and livery of the judgments occupying a further seven well. days. Hope was successful, judgment being given
In the Court of Justiciary he presided at the for the pursuers both in Scotland and in the House trial of Madeline Smith in 1857 for poisoing her of Lords. This appears to have been about the only lover, and his summing up was generally considered memorable cause in which Hope was engaged while
a very impartial presentation of the facts. The at the bar. He, however, always bad a very large verdict, it will be remembered,
“Not proven.” practice, to which he devoted himself with extra- He continued to discharge his various duties ordinary intensity. Late at night and early in the with his accustomed energy till very shortly before morning he was at his papers; and no client could his death, which took place suddenly at his house ever complain that the dean had not made himself in Moray-place, Edinburgh, on the 14th June, 1858. master of his facts; yet in his busiest years be could He had been engaged in his library between seven find time, as only the busiest men it seems can find and eight o'clock, and by 11.30 he had breathed his time, to keep up his reading in general literature. last.-- Law Times. Gifted with a tenacious memory, it is said he never forgot even the smallest details of old cases or the
THE LAW OF THE VENEZUELAN CASE. books he had perused. In 1841 his father resigned his office as lord presi
CAREFUL study of executive document No. dent, being succeeded by Boyle, the lord justice 226 of the Fiftieth Congress, first session, clerk, the vacancy occurring in the latter office being wherein the President transmits to Congress the filled by Hope, who, at the same time, was sworn of correspondence relating to the pending boundary the Privy Council. Of his career on the bench dispute between Venezuela and British Guiana, there have been varying accounts. His industry he discloses only a single issue; and this, in the clear undoubtedly carried with him; that was accom- light of international law, proves to be a very simpanied, however, by his old impetuosity and hasty ple one, upon which no two intelligent arbitrators speech. An instance of this is related in the bio- will be likely to disagree. The single issue is graphy of Lord President Inglis. In one case in
whether Spain, by merely discovering, without which Inglis was engaged Hope took a very strong settling or occupying, the disputed Guiana coast, view adverse to Inglis' contention sooner than per acquired such a title to the back-lying territory haps he ought to have done, that is, without hear that every subsequent actual settlement of such ing the whole of the argument. Inglis, seeing this territory by the Dutch became wrongful, and that and feeling that it was of no rise to go on then, only occasional armed protests by Spain, at intervals strategically asked for a continuation of the case in of years or centuries, were necessary to maintain accordance with the forms then in vogue. Before her title, without any interval of permanent occupathe case came on again an appeal had been taken to tion by the Spanish from 1531 until to-day. Iu the House of Lords on another point, and on this short, does discovery without occupation give title
against those who permanently occupy, but had not government and established boundaries, within the good fortune originally to discover?
which some places are left unoccupied. Vattel In order to be assured that this is all there is of places in another category a newly discovered contithe Venezuelan question, it is to be observed that
nent in which rival countries are obtaining title by the diplomats who have at various times had charge
occupancy. Of such a country he says (Book II,
ch. vii): 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 tiine 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 bave 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 that has not a master, and be little desirous of posinto the disputed territory, except as small armed sessing the whole country. In this case another expeditions coming by land or sea merely to drive may take what the first has neglected." etc. out or capture the Dutch. The sole tendency The Venezuelan lawyers declare that what is extowards settlement of the country in dispute has pedient is not necessarily just, and plead that the been from the direction of Georgetown and the Spanish could, without occupancy themselves, treat Essequibo river. The historians, geographers, map- the occupancy by the Dutch as usurpation for an makers and publicists, from Raleigh to Humboldt, indefinite period. Vattel, on the contrary, exif they have carried the Dutch boundary westward pressly bases the doctrine that territorial titles beto the Orinoco and Moroco, or the Barima, have tween nations can arise by prescription — i. e.,
by talked about the Dutch possession or occupation; lapse of time with possession adverse to the rightif they have carried the Spanish line eastward to the on the inexpediency of allowing old possessions to Essequibo, have in uo case declared it to be a be ripped up, and settled populations to be comSpanish occupation, but only a domain or sover-pelled either to give up their settled homes or to eignty or supposed abstract right. And when (Ex. come under a new allegiance. He says (p. 289): Doc. 226, p. 34) Lord Salisbury in 1880 writes to “Nature has not herself established property, Senor Rojas that to recognize Venezuelan “proprie- and in particular with regard to lands. She only torship to the Essequibo would involve the aban- approves this introduction for the advantage of the donment of a province inhabited in 1880 by 40,000 human race. It would be absurd, then, to say that British subjects, and which has been in the uninter- domain and property being once established, the rupted possession of Holland and Great Britan suc- law of nature can secure to a proprietor any right cessively for two centuries we find Venezuela capable of introducing disorder into human society. replying in 1882, through Senor Seigas (p. 32), that Such would be the right of entirely neglecting the "to deliver up territories in which populations thing that belongs to him, of leaving it during a have been founded cannot help producing griev- long space of time, under all the appearances of ances; in that, all the world is in accord. But the being property abandoned, or that does not belong convenient is not the right, neither can it be con- to him, and of coming at length to deprive an honfounded with it. He who has occupied a thing est possessor of it, who has perhaps acquired a title not his own, remains with the obligation to restitute to it by burdensome conditions. it whenever it is demanded of him, and to indemnify Were it permitted have constantly recourse al' the damages consequent upon the illicit act.” ancient times, there are very few sovereigns who
Inasmuch as the Venezuelan lawyers do not in- would enjoy their rights in security, and there stance the building of a single town, or fort, or would be no peace to be hoped for on earth." trade agency, or the occupancy by any Spanish set- What Vattel here condemns, namely, having retlers of the territory in dispute at any point, but course to ancient times to upset the effect of cenconfine themselves to recounting the encroachments turies of possession adverse to their claim of soveand intrusions of the Dutch, the inference from the reignty, is exactly the case of the Venezuelans. record is that no Spanish settlements occurred, and During all the reigns from Philip II. to Philip V. of hence that the question is one between occupancy Spain, the Netherlands, which owned Dutch by one nation and naked claim of right to occupy Guiana, were themselves under Spanish domination, withont actual occupancy by another. The Vene- as was also the present Venezuelan dependency. zuelan lawyers show that they cannot fortify their If Spain, when in full control of both parties to the case by actual acts of occupancy, for they make a contention, did not think it worth while to require strained citation of Vattel, to the point that a the Dutch to retire behind the Essequibo, it would country need not occupy the whole of its own terri- be a marvellous stretch of authority for the United tory, but can suit itself as to how much of it it will States to disturb three centuries of possession,
But this text (Vattel, Book II, ch. vii.) clearly by the Dutch and their successors, at this late day. refers to the case of a country baving a master or - The Nation.
The Albany Law Journal.
given upon your trial, it must be clear to any impartial mind that the jury were absolutely
warranted and justified in finding against you ALBANY, DECEMBER 14, 1895.
the verdict they found. Even upon the testi
mony of the girl herself, if there could have Current Lopics.
arisen a reasonable doubt, you dispelled that
doubt yourself-you and some of your wit(All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. nesses, you particularly. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW
“Your own testimony dispelled any doubt JOURNAL COMPANY.)
that could possibly arise upon this record as to NE of the most sensational trials which has your guilt. Your refusal to answer questions taken place in many years has been that of
on the ground that they would tend to incrimiLangerman, who was accused by Barbara Aub nate or degrade or disgrace you; your palpaof criminal intimacy, and who was found guilty ble exaggeration; your statement of occurby a jury last week. The trial, in all its unfor rences, which to the mind of any man mani. tunate details, has been fully published. There festly were false. are many lessons which, as ministers would say,
“ Your statement of occurrences there were might be learned from this trial and its results, such as could scarcely in human reason be beIt shows, in the first place, that men are more
lieved of the most abandoned woman. Had you inclined to believe the testimony of a woman
confined yourself to the truth, even though you who claims she has been wronged than to place may have contended, and you may from your credence in the evidence of one of their standpoint have believed yourself justly conown sex. We doubt not but that many inno- tending that you obtained the girl's consentcent men have suffered for acts for which they
confined yourself to that, the jury no more responsible than the guilty might have acted and thought differently. But
The fearfulness of such a situation is you did not confine yourself to that. You went apparent, and appeals most strongly to men beyond that, and you testified to a series of who, though they respect the members of the occurrences which upon their face carried with gentler sex, must admit that women succumb them their own refutation, because of their exto their passions as well as men. The case is aggeration and absolute improbability. also an illustration of the kind of evidence “And then, again, what contributed most to which is given in many cases before a jury, your conviction was your evil repute. Had you where, as in this case, after a .confession is been a man of good character-could you have made, it is shown by the party confessing that shown good character-and whose reputation the testimony of those who were opposed to her was fair and good and upright and honest, you is at least partly untrue. Naturally, all this is
Naturally, all this is might never have had the verdict of guilty renreflective on human nature. It only again dered against you which you have. It is only shows its frailty and increases our mistrust. an illustration of how valuable a good characPerhaps the most important part of the case is ter is in time of need and in the hour of peril. the action of Recorder Goff after he received
And I am satisfied that your evil repute, probathe confession of the complainant, Barbara Aub. bly more than anything, placed you in the poFor several days he took no action, and after sition you are. what the daily papers call "a denouncement of “Since the rendering of the verdict I have, the prisoner,” the recorder sets him free on his as the law gives me authority to do, inquired as own recognizance, grants a new trial and holds to circumstances that would tend to mitigate him as a witness against his complainant in the your punishment as well as to circumstances former trial. Criticism has come from various that would tend to aggravate your offense. quarters in regard to the action of the recorder. Those are the words of the statute. His address to the prisoner, in discharging him, “I have received a great many communica
tions 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
“But considering the peculiar character of been signed by reputable men and women who the crime charged against you and all the surhave offered to come forward and make affidavit rounding circumstances, I am satisfied that -and some of them have done so-of former even without the light of judicial precedent transaction of yours when nothing but the upon this matter, for I doubt if there has ocmodesty of the woman prevented your being curred a case in the history of criminal jurisarraigned at the criminal bar then. And your prudence in this or any other country to equal life, it will appear, has been one not of loose this, and without the light of precedent or judimorals, because this court is not going to be a cial opinion to guide me, I have had simply to censor of morals, but of unbridled lust, com- rely upon what I consider to be the principles mitted by violence, and you have even kept a of right and justice and to exercise that indiary as to the acts of your successful trans-herent power that a court has over its own recactions. The wonder is you have escaped from ords, over its own transactions. being arraigned at the criminal bar so long.
“I have taken from this girl, after having "You may bear now upon your person marks had many conversations with her, after exhausof violence inflicted upon you by women in de tive questioning and examination, a full confense of their honor.
fession. In justice to the unfortunate creature, “And you have been found with your face she yet persists in denying the frightful and recovered with blood in a certain well-known
pulsive accusations which you have made house in this city, and your record is a very un- against her on the witness stand, and which I savory one. “But notwithstanding that, Langerman, no
before referred to as carrying with them their
own refutation. matter what you have been and no matter what
“I have urged her and I think she has recogyou may be, you are entitled to strict justice and impartial justice, and that justice demands nized the fact, and she says so in her confes
sion here, that she has done a grievous wrong, that you be not punished under this verdict.
“I have since the verdict was pronounced and that she is willing to undo that wrong now. instituted on my own responsibility—actuated She has suffered, the unfortunate girl, very by some motive, or at least by some spirit that much, and what with her sufferings of conI cannot now account forman investigation
science and her homeless, houseless and friendinto this matter, and the result of my investiga- less condition, her lot is indeed a sad one. tion is that I am fairly and reasonably con
“I have no word to say as to your act in vinced—that is, as far as human testimony is taking advantage of her visit to your chambers concerned, and keeping in mind its fallibility that morning so long as she says that she conI am convinced you are innocent of this crime." sented. A court of law has no right to pass an
“This girl has confessed to me that she con- opinion or to express an opinion one way or sented to the act."
the other as to the generosity of your conduct, For long and many hours of anxiety and but she does state in her confession that she was perplexity, I must say covering some days and angered by your cruel and cold-hearted treatnights, since your conviction, I have struggled ment of her when she went back to you the secwith this case, and I trust that during the rest ond time and told you that she feared she would of my judicial life nothing of the kind will ever become a mother, and you, knowing that she present itself to me again.
had no home, no friends, that she was, practiStrictly speaking, there might be a grave cally speaking, destitute, and that as soon as her question whether or not I should arrest judg- unhappy condition would become apparent she ment, whether I should permit a solemn ver- would be cast out on the street as a foul and dict of a jury to be challenged, and were the unclean thing. crime of a different nature, the alleged crime of "And when she told you of her condition, a different nature, than the one it is, I would she says you sneered at her and you treated it have grave doubts and hesitancy as to whether | lightly; you told her that she need not be