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 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.

A

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

In 1841 his father resigned his office as lord president, 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 accom-light of international law, proves to be a very simpanied, 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

ple 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 government and established boundaries, within the good fortune originally to discover?

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 IL ch. vii):

"If two or many nations discover and possess at the same time an island, or any other desert land, without a master, they ought to agree between themselves and make an equitable partition; but if they cannot agree, each will have the right of em pire and domain of the parts in which they first settled. It may happen that a nation may be contented with possessing only certain places, or appropriating to itself certain rights, in a country 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 righton the inexpediency of allowing old possessions to be ripped up, and settled populations to be com

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 continuous possession of the disputed territory by the Dutch alone for three centuries, but actually charge it upon them as part of their fault, under the names of usurpation, intrusions and aggressions. Nor do the Venezuelan diplomatists allege, except in the case of a few missionaries to the Indians between 1531 and 1580, that any Spanish residents or persons 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 sover-pelled either to give up their settled homes or to eignty 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 grievauces; 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

come under a new allegiance. He says (p. 289):

"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 long space of time, under all the appearances of being property abandoned, or that does not belong to him, and of coming at length to deprive an honest 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 ad

ddressed 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

were

NE of the most sensational trials which has 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 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,

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 your guilt. Your refusal to answer questions 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.

"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

was:

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.

"You may bear now upon your person marks of violence inflicted upon you by women in de

fense of their honor.

"And you have been found with your face

covered with blood in a certain well-known house in this city, and your record is a very unsavory one.

"But notwithstanding that, Langerman, no matter what you have been and no matter what you may be, you are entitled to strict justice and impartial justice, and that justice demands that you be not punished under this verdict.

"I have since the verdict was pronounced instituted on my own responsibility-actuated by some motive, or at least by some spirit that I cannot now account for an investigation into this matter, and the result of my investigation is that I am fairly and reasonably convinced that is, as far as human testimony is concerned, and keeping in mind its fallibilityI am convinced you are innocent of this crime." "This girl has confessed to me that she con

"But considering the peculiar character of the crime charged against you and all the sur rounding circumstances, I am satisfied that even without the light of judicial precedent upon this matter, for I doubt if there has oc curred a case in the history of criminal jurisprudence in this or any other country to equal this, and without the light of precedent or judi cial opinion to guide me, I have had simply to rely upon what I consider to be the principles of right and justice and to exercise that inherent power that a court has over its own records, over its own transactions.

"I have taken from this girl, after having had many conversations with her, after exhaustive questioning and examination, a full confession. In justice to the unfortunate creature,

she yet persists in denying the frightful and repulsive accusations which you have made against her on the witness stand, and which I before referred to as carrying with them their own refutation.

"I have urged her and I think she has recog nized the fact, and she says so in her confession here, that she has done a grievous wrong, and that she is willing to undo that wrong now. She has suffered, the unfortunate girl, very much, and what with her sufferings of conscience and her homeless, houseless and friendless condition, her lot is indeed a sad one.

"I have no word to say as to your act in taking advantage of her visit to your chambers that morning so long as she says that she con sented. A court of law has no right to pass an opinion or to express an opinion one way or the other as to the generosity of your conduct, but she does state in her confession that she was angered by your cruel and cold-hearted treatment of her when she went back to you the sec ond time and told you that she feared she would become a mother, and you, knowing that she had no home, no friends, that she was, practically speaking, destitute, and that as soon as her unhappy condition would become apparent she would be cast out on the street as a foul and unclean thing.

"And when she told you of her condition, she says you sneered at her and you treated it lightly; you told her that she need not be

pecti

troubled, that she had now a way of making a living much better than by book canvassing.

"She absolutely denies your assertion that she again submitted to you on the second visit, "I will not read this confession. It is very thorough. She goes into everything that ocult curred, but, to sum it up, she says that the going from house to house and from place to place and from person to person looking for a sympathetic friend, and not finding any, discouraged her, and that finally, when she visited this : lady, to whom she first made the complaint, she, having been rebuked, and having failed to see other persons she sought, had the thought in her mind of going to the doctor, this doctor who met with an untimely death, Dr. Burnett. And the doctor examined her and he told her he could not tell her condition. The thought in her mind was maddening. She saw nothing before her but a life of shame and degradation, and in order to protect herself from that life of shame and degradation she told Miss Smedley that you had outraged her.

acter to recede one step from the position which she had taken. And even after that, and in the police court, the girl states in her confession, she wished to withdraw without giving any reason, she wished to discontinue the prosecution without stating her reason, but her friend would not permit her to do so, inasmuch as her honor was involved.

"I may be permitted to say here that it is the experience of all lawyers that it is a very unwise thing for counsel to relentlessly and mercilessly cross-examine a young woman unless he have the proofs of her guilt so conclusive that she cannot get away from them. And your counsel for five hours plied this girl with questions, making her his own witness, and her answers became conclusive upon him and during those five honrs she withstood that attack successfully.

"Under the condition of affairs, while a formal motion has not been made, but exercising the inherent power of this court on account of its most extraordinary situation, justice dictates to me to do one thing, and only one thing, and that is to set aside this verdict and to grant you a new trial.

"I shall not commit you to prison, holding you for a new trial, because it is manifest that on a new trial, with this testimony in my possession, or at least in the possession of the court and of the law officer of the court, you could

not be convicted."

"And Miss Smedley, acting on the feelings of an indignant virtuous woman, and a good We print this statement of the recorder's as woman, immediately caused complaints to be made by bringing her to the police court, and we believe that not only is he thoroughly justionce there the girl had not the strength of char-fied in every word he spoke, but was entirely correct in every respect in the action which he took. It was most proper that the recorder should take cognizance of the statements made by parties as to the former actions of the defendant. It was right that he should consider all the statements which were made as to the former acts of the same kind of the defendant. A judge's duty is to aid in the protection of so"And the girl goes on to say then that if she ciety, and the first crime of any man is recoghad withdrawn she would have been cast out nized by the law as one which should not be by these friends and looked upon as a liar or punished as severely as a second offense. Soan abandoned woman, either one or the other.ciety must be protected from the continuance “And she says in her own pathetic language: of crime and from habitual criminals, and, in 'What was easy at first became easy as the case went on, and the story I told at the commencement became to me as if it were true.'

So the poor, unfortunate one lied, and she sat here on this witness stand for five hours undergoing a most excruciating examination at the hands of your counsel, and I venture to say it is not usual at least to find a female witness withstanding all attempts made to cast a blemish upon her reputation and find a flaw in her life so successfully as that poor girl did.

view of all these circumstances, the recorder showed the greatest judgment and good faith in properly deciding as to the effect of Langerman's past career. Although the recorder was convinced that the defendant had not committed the crime with which he was charged, yet the so-called denunciation of Langerman was prompted by a proper sense of the propriety of the recorder's position and of the functions which he was obliged to exercise. It is well to appreciate that sound judgment, even after a