Memoirs of James Robert Hope Scott, Volume 2 by Robert Ornsby

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On first undertaking to write this memoir, the idea naturally suggested
itself whether it might not be possible to give something like a connected
history of Mr. Hope-Scott's practice at the bar, especially considering the
great social interest of the whole subject of railway construction in these
countries, of which it really forms part. But I was assured by those
thoroughly conversant with the matter, that such a task was not to be
thought of. Legal arguments, occupying many hours for days together,
however extraordinary they no doubt were as efforts of talent, and however
important to those concerned at the time, who, perhaps, might be seen
expecting, with white faces, the long-pending decision of committees for or
against them, cannot, after the lapse of a generation, nay, after a far
shorter interval than that, be even understood without an amount of labour
which few would be inclined to devote to them. It may, indeed, be said that
railway law is the creation of such great advocates as Mr. Hope-Scott, who
reigned supreme in their own province at the time of its formation; and no
doubt suggestions of counsel may have been adopted into law. But how to
assign to each his share in the mighty structure? or guess to whom any
particular change may have been due? It would at all events be the office,
not of the biographer, but of the historian of jurisprudence. I shall
nevertheless so far venture to deviate from the advice to which I have
referred as to notice five or six cases, not as being in every instance of
special and remembered celebrity, but merely as specimens of the kind of
practice in which Mr. Hope was engaged. Two of these will also give me the
opportunity of quoting some clever articles from the contemporary newspaper
press, serving to show what the opinion about Mr. Hope-Scott was at the
time, as the criticisms of his professional friends already given convey to
us a distinct idea of the impression which he produced on his brethren of
the Bar. I take first a case in which the Caledonian Railway Company were
concerned, as it is very clearly and concisely explained by Mr. Hercules
Robertson (better known as Lord Benholme, his title as Lord of Session),
one of the counsel associated in it with Mr. Hope-Scott, in a letter which
has been kindly communicated to me:--

1. _The Caledonian Railway_.--'We were associated together as counsel
for the Caledonian Railway Company in supporting several important bills
upon Parliamentary committees, involving difficulties of no ordinary
magnitude. One very important object that Company had to attain was leave
to alter their entrance into Glasgow by lowering their access by many feet
of perpendicular elevation. Their bill proposed to effect this by a tunnel
which had to be interposed between the canal above, on the surface, and the
Edinburgh and Glasgow Railway beneath. Our tunnel had to pass between these
hostile undertakings just at the point where the former of these lay above
the other with a very scanty space between. The difficulty was to induce
the committee to believe that the thing was possible--that it was in the
power of engineering to thread a way for the Caledonian Railway so as not
to bring down the water of the canal on the one hand, or to break into the
other railway by destroying its roof on the other. Mr. Hope-Scott had a
power of persuasion that owed its efficacy not more to his commanding
talents than to his straightforward ways and his honest and candid manner,
which seemed to afford a satisfactory pledge that he would not seriously
and anxiously advocate anything that was not true and possible. By his
powerful assistance the Caledonian Company carried their bill, and in the
course of the proceedings I had a full opportunity of estimating the
elements of success in Mr. Hope-Scott's career which made him one of the
most popular of Parliamentary counsel. I need hardly say that his kindness
and courtesy to myself were all that I could expect or wish from one with
whom I was otherwise so closely connected.--H. J. RORBETSON.'

2. _Award by Mr. Hope-Scott and Mr. R. Stephenson_.--In 1852 Mr. Hope-
Scott was associated with Mr. Robert Stephenson, the celebrated engineer,
in making an important award upon certain questions in difference between
the London and North-Western and North Staffordshire Railway Companies.
This document, dated October 6, 1852, appears in the newspapers of the day;
but either to quote from or analyse it would not be of the slightest
interest to my readers. A letter of Mr. R. Stephenson's to Mr. Hope-Scott
on some private business of later date is of more value for our purposes as
showing the opinion which this great engineer had formed of Mr. Hope-Scott
in his own field, and also that these two remarkable men were by that time
on the terms of intimacy that might be expected where minds of such
calibre, and so capable of understanding each other, met in the conduct of
affairs.

_Robert Stephenson, Esq., C.E. to J. R. Hope-Scott, Esq., Q.C._

24 Great George Street: 2 Feb. 1855.

My dear Hope-Scott,--I have a sketch, in hand for your bridge. Your
specification is excellent. I know what you want exactly. If I had not
finished my engineering career, I should certainly have been jealous of
your powers of specification. I do not know that it is sufficient to base a
contract upon that would hold water in law; nevertheless, it is sufficient
for me. I cannot offhand state the cost; but when the sketch and estimate
are made, you shall see them; and if the cost exceeds your views, there
will be no harm done; on the contrary, I shall have had the pleasure of
scheming a little for you by way of pastime.

Yours faithfully,

EGBERT STEPHENSON.

James Hope-Scott, Esq.

3. The Mersey Conservancy and Docks Bill.--The speeches delivered by Mr.
Hope-Scott in this case (June 23 and 24,1857) on behalf of the Corporation
of Liverpool against the Mersey Docks and Conservancy Bill, were considered
as among his greatest forensic efforts. His engagement in it was originally
due to an accident, the brief having been given in the first instance to
Mr. Plunkett, in whose chambers, as already mentioned. Mr. Hope had been a
pupil. Mr. Plunkett having been prevented by illness from taking the brief,
it was placed in the hands of Mr. Hope-Scott, who made a brilliant use of
the opportunity. To place the reader in possession of the main question, it
may be sufficient to state that the object of the Bill was to consolidate
the Liverpool and Birkenhead Docks into one estate, so as to vest the whole
superintendence of the Mersey in one body, principally elected by the Docks
Ratepayers for the time being. This was felt by the Corporation of
Liverpool as an unjust interference with their local rights, and the case
is argued by Mr. Hope-Scott (when he comes upon general grounds) as one in
which the commercial was being sacrificed to the jealousy of the
manufacturing interest, and the principle of local government to that of
centralisation. The reasonings as to matters of fact and business which
make up the great bulk of these speeches are quite outside of our range,
which can only deal with that which is more popular and rhetorical. Two
specimens in the latter style I venture to quote--one of them appearing an
excellent example of the genial humour he knew so well how to throw around
the driest of arguments; the other a highly coloured view of the history
and position of Liverpool in the commercial world, and of the danger of
disturbing it in obedience to the clamour of its manufacturing rivals. The
treatment of the subject rather reminds us of Burke's manner, and it is
easy to see that Mr. Hope-Scott's own political feelings, always
constitutionally conservative, would here assist his eloquence, as, in a
far higher degree, the same sympathies had added splendour to his early
display before the House of Lords. In the case before us it is hardly
necessary to say that millions of money were concerned. An exciting scene
is remembered in connection with it, the secretary of the Birkenhead Docks
fainting away during the proceedings. Mr. Hope-Scott is _said_ to have
received a fee of 10,000_l_.; but a friend, likely to be well
informed, thinks this is a fable.

THE PARLIAMENTARY HUNTING-DAY: A CHANGE OF MOUNT.

[After describing the provisions of an earlier centralising scheme proposed
by Government in 1856, Mr. Hope-Scott proceeds:]

Well, sir, all this set the game fairly afoot; and such a day's sport could
hardly have been anticipated since the days when--

Earl Percy of Northumberland
A vow to God did make,
His pleasure in the
Scottish woods Three summers' days to take.

The Queen herself had not indeed made a vow, but had announced the hunting
from the throne. The Royal Commissioners had driven the whole country for
game, and there was a large field, nearly all the counties of England being
interested spectators; the hounds in good condition--very skilful whips--
everything seemed to promise a fine day's sport: and what would have been
the issue is not very easy to foresee, had it not been for what I may be
allowed to term (pursuing the metaphor) the very unfortunate riding of the
gentleman who, upon that occasion, acted as huntsman. It appears from his
own statement at the outset that he had very little previous acquaintance
with the country; but he went off with very considerable confidence upon
'the shipping interest,' and there seemed to be every prospect of his
having a pleasant ride; but as he got along, he seems to have found the
ground deeper and the fences stiffer than he had reckoned upon, and,
moreover, that 'the shipping interest' had been a good deal exhausted in
the service of the department before.

So about the middle of the day (it is more easy to give a description of
personal events in the form of analogy than from direct representation)--
about the middle of the day he seems to have changed his mount; and when he
was next seen he was going at a tremendous rate across country, firmly
seated upon the 'natural rights of man.' As you may suppose, he very soon
made up for lost ground upon so splendid a creature. But the difficulties
began when he came up with the hunt; for the horse in question is a
desperate puller, very awkward to manage in old enclosures, and not at all
accustomed to hunt with any regular pack, least of all with her Majesty's
hounds. The consequence was what might have been expected. He was hardly up
with the hounds when he was in the middle of them, rode over half the pack,
and headed the whole; and so there was nothing for it but for the master of
the hounds to call them off, and declare he would not hunt that country
again until he had had a further survey made of it.

Now I have endeavoured to give, in as gentle a manner as I can, an account
of that which caused the principal disaster on this famous sporting day. It
was stated that further information was necessary. But another member of
the Government described the difficulty in a good deal broader terms. Mr.
Labouchere declared that 'the sons of Zeruiah had been too strong for
them.' However that may be, a select committee was appointed. [Footnote:
_Report: Mersey Conservancy and Docks_, Westminster, 1857, p.46.]

COMPARISON OF LIVERPOOL WITH MANCHESTER.

What has made Liverpool? Manchester says it has made Liverpool. Sir, the
East and West Indies, America and Africa and Australia have made Liverpool,
just as they have made Manchester. We know that for a long time that
western side of the kingdom was far behind the eastern portions of it; that
it had no wool trade, which was the old staple of the country; that South
Lancashire was covered with forests; that in Edward the Second's time there
was but one poor fulling-mill in Manchester: and what has been the eventual
result? After long waiting, after long delays, a new continent in the far
west, and a new British Empire founded in the far east, have come to the
relief of that portion of the country; that, concurrently with the
development of that system, a Brindley, a Watt, an Arkwright, a George
Stephenson arose. And so it is that Liverpool became what it is; and so it
is that Manchester became what it is. But who was watching this great
design of Providence in its small beginning? Who was fostering the trade?
Who was promoting the internal communications with Manchester? Who was
spending money and giving land for the benefit of the infant trade? It was
the corporation of Liverpool.... Where was representation and taxation
then, sir?... You cannot have it till the port is made. You cannot have it
till the risk has been run, till the ratepayers have been created. Then, no
doubt, you may turn round upon the body who have made the port, made the
ratepayers, made them what they are; and you may insist upon dethroning
them from that position which they have occupied, at so much risk and so
much labour, up to the time when the full development of the trade takes
place. Now, sir, that is the case with Liverpool. It is the case with
nearly all the remarkable ports of this kingdom. And then, forsooth, when
all this has been done, and when Liverpool has nursed from its infancy the
rising trade of the Mersey, watched it, developed it into a system which is
unequalled, I venture to say, in the habitable world, we are to have
gentlemen from Manchester coming down upon us to tell us that the true
nostrum to make a port is taxation and representation, and to turn out
those who, before there was any trade to tax, taxed themselves in order to
create it.

* * * * *

Apart from the Great Western Company's intervention this is a case of
Manchester against Liverpool; in other words, it is a struggle between a
manufacturing and a commercial interest. Now, sir, what is called the
balance of power in the British Constitution, meaning as it does the
equipoise caused by conflicting interests and passions, is a principle
which is not confined to constitutional forms, but works out throughout the
whole body of society; and we find a gradual tendency in latter days to
conflicts between classes, and classes which were before allied together
against other classes. We know the distinctions between land and trade,
speaking generally, and the conflicts which have ensued. In these latter
days we have had trade subdivided into manufactures and commerce.... What
you are asked to do now is to humble a commercial interest at the instance
of a manufacturing interest.... There can be no doubt, sir, that if we
contrast the habits of mind of different classes, commercial pursuits give
a different tone and a different feeling. I am not saying it is better, I
am not saying it is worse--that is not my question--but a different tone
and feeling from what manufacturing pursuits do. I will not even analyse
the cause of it; but I may state this much, that commerce has that which
manufacture has not. It has its traditions and its history upon a higher
and very different footing: it has even its romance and its poetry. A
profession exercised within a port which is associated with such names as
those of Tyre, of Byzantium, of Venice, of Genoa, of the Hanse Towns, and
many of the chief cities of history, may be said to have some liberal
features which I do not say are beneficial; I am merely saying that they
are different from those which arise out of the associations of
manufacture. Images of greatness and of splendour are connected with the
one much more than with the other, and the term 'merchant princes' is a
term which neither historians nor orators would treat as otherwise than
properly applied to many of the chief men of the cities which I have named
in former days, and many of the chief men of the cities with which we are
now dealing. Moreover commerce brings the parties engaged in it into
connection and contact with almost the whole known world. Liverpool is not
the Liverpool of Lancashire only, or of Cheshire only, or of England only;
Liverpool is the Liverpool of India, of China, of Africa, of North and
South America, of Australia--the Liverpool of the whole habitable globe;
and she has her features of distinction; she has her habits of thought and
feeling, her traditions of mind fostered by influences such as these. There
she sits upon the Mersey, a sort of queen of the seas; and Manchester, her
sister, looks at her and loves her not. _She_ too is great, and
_she_ too is powerful--but she is not Liverpool, and she cannot become
Liverpool. At Liverpool she is lost in the throng of nations and the
multitude of commerce; she is merely one of the many customers of the port.
Well, as she cannot equal Liverpool, what is the next thing? It is to pull
down Liverpool; to make Liverpool, forsooth, the Piraeus of such an Athens
as Manchester! That, sir, will suit her purpose, but will it suit yours?...
No commercial interests can act, sir, more than any other interests,
without some local association, without some united home, such as is
afforded in the constitution of our own port.... To found upon injustice,
and to proceed by agitation, to put down a rival whom they cannot help
admiring though they cannot love--that, sir, is a process neither worthy of
them nor likely to accord with the views of the constitutional politician,
who is willing indeed that, according to the natural force of circumstances
and the development of time, every interest should acquire its legitimate
position in the balance of power under the constitution, but who certainly
would not lend his aid to destroy by anticipation and violently any of
those great commercial landmarks which remain--and long may they remain--in
this country, standing monuments of the past, and affording in the present
working of different political passions and interests a counterpoise, the
loss of which would soon be felt, and would lead every one to regret the
legislation which had converted this bill into an Act. (Pp. 213, 214, 221-
4.)

4. _The L. B. & S. C. Company--the Beckenham Line_.--In this great
case Mr. Hope-Scott was retained by the London, Brighton, and South Coast
Railway Company to oppose a bill by which it had been sought to construct
a new and rival line by Beckenham, and, with his usual address, succeeded
in turning it out. The question was one of considerable local importance,
and on its decision a clever article appeared in the 'West Sussex Gazette,'
written by the editor of that paper, the late Mr. William Woods Mitchell,
in whose sudden death in 1880 the public press of England lost a most able
and talented journalist, who (I may remark in passing) had as considerable
a share as any one in carrying the principle of unstamped newspapers. His
description of Mr. Hope-Scott's style of pleading is interesting, as
conveying the impressions of a very sharp-sighted spectator, and, so to
speak, placing before our bodily vision what such refined criticism as that
of Mr. Venables has addressed rather to the eye of the mind.

To one of an impulsive temperament Mr. Hope-Scott's unconcern and _sang-
froid_ is perfectly irritating. It is amazing how he remembers minute
points and names. From the highest questions of policy down to Mr. Ellis's
cow and ladder case he was 'up' in detail, never lost for a word, and not
to be astonished at anything. If the House of Commons were on fire he would
ask the committee simply if he should continue until the fire had reached
the room, or adjourn on the arrival of the engines. Whilst he delivers his
speech he is keeping up a little cross-fire with the clerks behind, who
scratch out the evidences and papers as he requires them. Now he will drink
from the water-glass, now take a pinch of snuff, then look at his notes, or
make an observation to some one; but still the smooth thread of his speech
goes on to the committee: but it is smooth, and says as plainly as
possible, 'My dear friend, I am not to be hurried, understand that if you
please.' When, however, Mr. Scott has a joke against his learned friend he
looks round, and his dark eyes twinkle out the joke most expressively....
There was a slight twinkle as he said to the committee, 'Now I come to the
question of gradients.' It was amusing to see the five M.P.s twist in their
chairs, and how readily the chairman told Mr. Scott the committee required
to hear nothing further about gradients. Had the question of gradients been
entered upon, one might have travelled to Brighton and back ere it was
concluded. Mr. Hope-Scott had the advantage of a good case, and he
'improved the occasion.' He further had the advantage of the three shrewd
gentlemen at his elbow, Messrs. Faithfull, Slight, and Hawkins, who allowed
no point to slumber. The great features in favour of the Brighton Company
were--first, that their line was acknowledged by all to be well connected;
secondly, that Parliament had never granted a competing line of as palpable
a character as the Beckenham; thirdly, that it had been shown by a
committee of inquiry that competing lines invariably combine to the
detriment of the public; and lastly, that the opposition line was not a
_bona fide_ scheme, and not required for the traffic of the district.
Mr. Denison replied at a disadvantage. [The chairman announced:] 'The
committee are unanimous in their decision that the preamble of the bill has
_not_ been proved.' The B. and S. C. has won the race. Another victory
for _Scott's lot!_ [Footnote: _Scott's lot_. There was a
celebrated trainer of the day, named Scott; and this expression was very
familiar in the records of the turf.] The Beckenham project thrown out.
[Footnote: _West Sussex Gazette_, June 18, 1863.]

The same writer (I have been told) also remarked that Mr. Hope-Scott
succeeded with the committee by making an exceedingly clear
_statement_ of the case, thereby making them think that they knew
something about it--and that was half the battle. When it was over, Mr.
Hope-Scott observed to a friend, 'It is very likely I shall hear of that
again; and very probably I shall be on the other side.' In fact, the affair
got mixed up with the South-Eastern, from which company Mr. Hope-Scott
received a prior retainer, and carried the Beckenham line against the L.
and B. On that occasion he met the probable production by the opposing
counsel of the statement from his previous speech by showing that
circumstances alter cases, and that two or three years make a great
difference. These latter particulars, however, I only give as
conversational. To prevent any adverse impressions which might be given by
such random talk, I would remark in passing, that a case like the foregoing
is not a question of right or wrong, truth or falsehood, but of a balance
of _expediency_, which it is a counsel's business in each instance to
state, though certainly not to _overstate_. Further on (p.124) the
reader will find evidence of Mr. Hope-Scott's resolute conscientiousness in
the matter of fees.

5. _Scottish Railways: an Amalgamation Case_.--A bill for the
amalgamation of certain Scottish railways was one of the great cases in
which Mr. Hope-Scott was concerned in the Parliamentary Session of 1866. A
correspondent of the 'Dundee Advertiser' takes occasion from it to
contribute to that journal a sketch of Mr. Hope-Scott's personal history
and professional career, with sundry comments on his style as an advocate.
From this article I shall quote so much as refers in general to the
Scottish part of his practice, and particularly to the case above
mentioned. It will be perceived that the writer takes a comparatively
disparaging view of Mr. Hope-Scott's manner of pleading; but this only
shows the coarse drawing which those who write for the people often fall
into, like artists whose pictures are to be seen from a great distance. For
convenience of arrangement I make a transposition in the passage which I
now place before the reader.

Mr. Hope-Scott in pleading his cases has a peculiarly easy style of speech,
which can hardly be called oratory, because it would be ridiculous to waste
high oratory on a Railway or a Waterworks Bill. But he has an apparently
inexhaustible flow of language in every case he takes up, and every point
of every case. He has little gesture, but is graceful in all his movements.
He fastens on every point, however small--not a single feature escapes him;
and he covers it up so completely with a cloud of specious but clever
words, that a Parliamentary committee, composed as it is of private
gentlemen, are almost necessarily led captive, and compelled to view the
point as represented by him. It was eminently so in the Amalgamation case.
The specious excuses for unmitigated selfishness there put forth were
poured into the ears of the committee with such an air of innocent candour,
and with such a clever copiousness, that the committee was, as it were,
flooded and overwhelmed by his quiet eloquence; and though Mr. Denison with
the keen two-edged sword of his logic cut through and through the watery
flood in every case, it was just like cutting water, which immediately
closed the moment the instrument was withdrawn. I am not doing Mr. Scott
injustice when I say that in the Amalgamation case his tact was at least in
as much demand as his ability, and that for downright argument his speeches
could not for one moment be compared to those of Mr. Denison. But having a
bad case to begin with, and having to make a selfish arrangement between
two railway companies appear a great public advantage, he certainly, by his
quiet skilful touches, turned black into white before the committee with
remarkable neatness. His reply on the whole case was another flood of
rosewater eloquence, which rose gently over all the points in Mr. Denison's
speech, and concealed if it did not remove them. It was like the tide
rising and covering a rock which could only be removed by blasting. Mr.
Denison has the keen logical faculty which enables him to bore his way
through the hardest argument, and blast it remorselessly and effectually as
the gunpowder the rock. Mr. Scott, again, prefers to chip the face of the
rock, to trim it into shape, to cover it over with soil, and to conceal its
hard and rocky appearance under the guise of a flower-garden, through which
any one may walk. And with ordinary men this style of thing is very
popular. I do not mean that Mr. Scott is incapable of higher things. Far
from it. I believe that had he to plead before a judge few could be more
logical and powerful than he; but it is a remarkable evidence of the
'Scottishness' of his character, if I may coin a phrase, that when he has
to plead before a committee of private gentlemen who have to be 'managed,'
he should deliberately select a lower style of treatment for his subjects.

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