The beauties of biography: a selection of the lives of eminent men, carefully digested from correct and approved publications; ... Illustrated with several heads, ... [pt.1]

ALAND (SIR JOHN FORTESCUE). [Never before published.]

ALAND, Sir John Fortescue, LLD. R.S.S. baron of the Exche|quer, puisne judge of both benches to king George the First, and a peer of Ireland in the subsequent reign; was born 7th March, A. D. 1670. Being second son to Edmund Fortescue, of London, Esq. by Sarah his wife.

Our judge was descended from Sir John Fortescue, lord chief justice, and lord high chancellor of England, under King Henry the Sixth. [See Greg. Pref. ap. Fortesc. de Laud. Leg. Angl. V. Hickes' Pref. ap. Thesaur. XLVI.] Sir John Fortescue Aland added his latter name of Aland in compliment to his lady, who was the eldest daughter to Henry Aland, Esq. of Waterford, in our sister kingdom; and sure it was a very great compliment indeed (whether the same was paid to mental accomplishments, personal charms, or large fortune) to suffer any name to supersede that of Fortescue, in the honour of his descent from which ancestor he seems to have gloried very much.

Whether our judge was educated at a public school, or privately at home, we have not been able to learn, but that he was at college, seems not to admit a doubt; because Oxford complimented him with the ho|norary degrees of doctor of laws, as a member of that university, if the following extract from the diploma (which may be seen prefixed to his volume of Reports) authorizes us in the assertion, viz. "mirâ sem|per in has musarum sedes benevolentiâ propendentem, nec minorem inde reportantem."

Sir John Fortescue Aland, as an Oxonian, greatly improved his na|tural endowments, and deservedly had the reputation of being a general scholar [See Greg. Pr. ap. Fortescue de Laud. Leg. Angl. V.] and as he was intended for the profession of the Law, upon leaving the university, he, Sir John, became a member of the Inner Temple, where he was chosen reader in the year 1716, 2 Geo. I. as appears by a subscription to his arms, ("azure, a bend engrailed argent, cottises or;" crest "a plain shield argent." Supporters "two greyhounds argent, collar and lined gules;" motto "Forte scutum salus ducum;" they are in the par|liament chamber of that society, and in Guillim's heraldry; in allusion

to the connection between the family name "Fortescue" and the first two words of the motto "Forte scutum." Sir Walter Raleigh hath styled our judge's ancestor, the bulwark of the law. See Sir Walter's preface to History of the World.

He was called to the bar about the happy aera of the glorious Revo|lution; this we assert from conjecture, made on the following calculation: Sir John Fortescue Aland was born in the year 1670, and the Re|volution happened in 1690, so that our barrister was at that period twenty years old, the usual age at which young gentlemen are gene|rally called to the bar. For his arguments as pleader in the courts of justice, the reader is referred to the following authorities, to take them in alphabetical order, viz. The Reports of Mr. Justice Fortescue Aland; Mr. Serjeant Carthew, See Wor. bibl. Leg. Angl. ap. Br. Cases con|cerning Settlements; Mr. Recorder Comberbach, See Wor. Bib. Leg. Angl. ap. Br. Lord Chief Baron Comyn; Lord Chancellor (of Ireland) Freeman, See Wor. Bib. Leg. Angl. ap. Br. Mr. Thomas Farresly, or VII. Mod. Rep. Lord Chief Baron Gilbert's Cases; Mr. Justice Levinz; Mr. Justice Lutwyche; Modern Reports, III. IV. V. VI. VII. VIII. X. XI. XII. See Wor. Bib. Leg. Angl. ap. Br. Lord Chief Justice Ray|mond; Reports Tempore Holt, Chief Justice; Mr. Serjeant Salkeld; Sessions Cases; Mr. Serjeant Skinner, and Mr. Justice Ventris.

We may presume our barrister shone as an advocate with meridian lu••re, since the celebrated Pope hath recorded his name, by prefixing it to his Imitation of Horace [Sat. II. 1.] and distinguished his legal abili|ties, by therein asking his opinion, as to libels, in the following im|mortalizing lines:

"Tim'rous by nature, of the rich in awe, "I come to counsel learned in the law; "You'll give me, like a friend both sage and free, "Advice, and (as you use) without a fee."

The reader is informed in a note on the first line, that the delicacy of the address, does not so much lie in the ironical application to himself, as in seriously characterizing the person, for whose advice the poet ap|plies.

On Friday 22 October 1714, 1 Geo. I. our barrister was appointed solicitor general to his Royal Highness the Prince of Wales, after|wards king George the Second, and grandfather to his present Majesty [Lord Raym. Rep. II. 1318, 1319.]; and on 21 Decem|ber 1715, 2 Geo. I. or on 16 December 1716, 3 George I. he was constituted solicitor general to the king [Stra. Rep. Table of Barons, &c. at the end of Bunb. Rep.] In the room of Nicholas Lechmere, re|signed;

which arduous and important office, he executed so much to the satisfaction of his majesty, and the people, that he was pleased to think him deserving of an higher post; and accordingly promoted him the very next year, viz. 24 January, 1716-7, Hilary Term, 2 George I•• by appointing him one of the barons of his Exchequer [Bunb. 7•• 10.] in which court he succeeded Sir Samuel Dodd, the late lord chie•• baron there, deceased, and in the solicitorship to the king, by Sir Wil|liam Thomson the recorder of London; the reader is referred to the reports of the lord chief baron Comyns, and of the lord chief baron Gil|bert; [see Viner's preface to his Abridgement, vol. xviii.] Sir John Strange and Bunbury, for our baron's resolutions and opinions while he sat i•• this court.

Though there does not seem to be any particular account now extan•• of our baron's call to the state of a serjeant at law, yet he certainly was as that degree is necessary to be conferred, previous to the party's be|ing made a judge. [See Co. preface to x. Rep.]

William Wynne, serjeant at law, and who published a treatise thereon intituled "Observations on the Antiquity and Dignity of the Degree o•• a Serjeant at Law," which was edited from a manuscript of the said ser|jeant, by his son Edward Wynne, who did himself and the profession great honour by his writings. The treatise alluded to, was not intended for sale; the author having printed but a very few copies for particular friends [See Wor. Bib. Leg. Angl. ap. Br.] our apology we take leave to ad|duce from the above treatise, not being able to record any other ceremonies of the call in question, among which are—leaving the society, presen•• therefrom, speech thereto, procession to Westminster-hall, robing, counting, rings, and feast; most of which are now nearly abolished The times of the several omissions will be noticed under their prope•• articles in the course of this work.

"Perhaps nobody now living can ascertain with exactness, when the persons omitted in the lists of serjeants at law were called, and conse|quently their proper places cannot be assigned them. Some very pro|bably took their degree as serjeants, merely as a qualification for (which the serjeant considers as a turnpike to) the bench; and in those cases, their respective promotions will point out the times of their calls with tolerable precision." See the above observation, &c. 150, 166.

It is surprizing that a lawyer should make use of the word bench as a general description of courts of justice, when it peculiarly and em|phatically denotes the court of common pleas, Sir Co. Pr. to VIII. Rep. Hogarth's celebrated print of the bench, and our Article, Sir John Popham.

Our baron, on 15th May, 1718, Easter term, 4 Geo. I. being

within two years and an half after that promotion, constituted on•• of the justices of the court of king's-bench, in the place of Sir John Pratt, (father of the present Lord Camden) made lord chief justice, and our judge was succeeded in the baronship of the exchequer, by Sir Francis Page.

The learned serjeant, William Wynne, seems to have mistaken the ap|pointment of Sir John Fortescue Aland, in the exchequer, for that in the king's-bench, if we may presume to make the observation from the date (viz. 1718), which by the concurrent testimony of respectable authorities, was the year our baron was promoted to the king's-bench, and not to the exchequer; for the resolutions and opinions of our judge, while he sat in this court, see Lord Raymond's Reports, his own Reports, those of Lucas, [or X. Mod.] of Sir John Strange, and Sessions Cases. [See Wor. Bib. Leg. Angl. ap. Br.]

On Monday the 9th of June, 1727, Trinity term, 13 Geo. I. Mr. Justice Aland, in a very serious speech, pronounced sentence for the execution of Major Oneby, convicted on a special verdict, found at the Old Bailey, in February sessions, 12 Geo. I. for the murder of Mr. W. Gower; all the judges of England being unanimously of opinion that the prisoner was guilty of murder; because when the deceased said to him, "Though we have had hot words, and you was the aggressor, yet I think we may pass it over," and at the same time offered his hand to the major: to which he answered "No, damn you, I will have your blood." This ought to be a caution to people, not to make use of such sort of expressions, as many are apt to do, in heat, anger, vexation, and passion.

Upon the morning of Monday, July 3d, being the day appointed for the execution of Major Oneby, he opened a vein and bled to death, to avoid the infamy of a public execution.

Upon the trial of an information, filed ex officio by the attorney general, in the court of king's-bench, against Edmund Curl, of notori|ous memory for infamous publications, Mr. Justice Aland differed from the other three judges, viz. Sir Robert Raymond, chief justice, James Reynolds, Esq. and Sir Edmund Probyn, on that prosecution.

Our judge owned the charge against Curl, (which was for printing and publishing "Venus in the Cloyster, or the Nun in her Smock," Stra. Rep. XI. 788.) to be a very great offence, but knew of no law by which the court could punish it, that common law is common usage, and where there is no law, there can be no transgression; he observed, that at common law, drunkenness, or cursing and swearing were not punishable, and yet he did not find the spiritual court take notice of them; that Curl's offence was but a general solicitation of charity, and

〈1 page duplicate〉〈1 page duplicate〉

〈1 page duplicate〉〈1 page duplicate〉

not inditable; that the Lady Purbeck's case was for procuring men and women to meet at her house, and held not inditable, unless there had been particular facts to make it a bawdyhouse; that to make it in|ditable, there should be a breach of the peace, or something tending to it, of which there was nothing in Curl's case; that libel is a technical word at common law; and he owned he much doubted of the case o•• the King and Read, for there was a rule to arrest the judgment nisi; and in Sir Charles Sidley's case, was a force in throwing out the bottle upon people's heads. He thought the book was rather published o•• purpose to expose the Romish priests, the fathers confessors, and the popish religion.

Perhaps if our judge had risen to the fur previous to Pope's publi|cation of his imitations of Horace, the poet would not have paid that compliment to Aland's judicial capacity, which he did to his legal, as we have observed of Pope in the former part of this article, especially when the reader is informed, that the poet was of the Roman Catholic persuasion.

After the accession of his late majesty King George the Second, all the judges had new patents, [See Wynn. Serj. at Law, 102.] except Mr. Justice Fortescue Aland, whose commission was superseded. [Lord Raym. Rep. II. 1510.]

One Jewell was taken on an escape warrant, made by our judge, and the court of king's-bench was moved to discharge the defendant, and the warrant, because he was taken on 6 Jan. 1727-8, and Sir John Fortescue Aland was removed from his office of judge of the said court of king's-bench in October 1727, his patent being determined on the demise of the late King George the First, and accordingly the prisoner was discharged, and the warrant also. [R. Raym. II. 1513.]

Sir Francis Page was removed out of the court of common pleas, into that of the king's-bench, in the place of our judge.

Sir John Fortescue Aland was the only judge removed, and the reason generally assigned was, his opinion on the following grand question, viz.

"Whether the education and care of his majesty's (King George the First) grand-children in England, and of Prince Frederie (late father to his present majesty), eldest son of his Royal Highness the Prince of Wales, (late grand-father to King George the Third) when his majesty should think fit to cause him to come into England, and the ordering the places of abode, and appointing their governors, governesses, and other instructors, attendants, and servants, and the care and approbation of their marriages, when grown up, belonged of right to his majesty, as king of the realm, or not?"

Ten of the judges, viz. Thomas Lord Parker, Chief Justice of England, afterwards Lord Chancellor.

Sir Peter King, Chief Justice of the Bench, afterwards Lord Chan|••ellor, and a peer.

Sir Thomas Bury, Lord Chief Baron.

Sir Littleton Powys, senior Judge of the King's-Bench.

Sir John Pratt, (late father of the present Lord Camden) puisne Justice there, afterwards one of the Commissioners of the Great-Seal, and Chief Justice.

The Hon. Robert Tracy, senior Judge of the Bench, and afterwards Commissioner of the Seal.

Robert Dormer, second Judge there.

Sir John Blencowe, puisne Judge of the same court.

Sir James Montague, second Baron of the Exchequer, afterwards one of the Commissioners of the Seal, and Chief Baron.

Sir John Fortescue Aland, puisne Baron, afterwards Justice of both Benches.

The two dissenting judges were, Sir Robert Eyre, second Justice of the King's-Bench, afterwards Lord Chief Baron, and Lord Chief Justice of the Bench, and

Robert Price, senior Baron, afterwards a Judge of the Bench.

The opinions of all the judges, with their reasons, are inserted at large, in our article of the last-mentioned judge, viz. Sir Robert Price.

Ten judges were of opinion (which, with the reasons at large, may be seen in our judge's Reports) that their education and the approbation of their marriages did belong to his majesty; but we very much doubt the authenticity of the said general assertion of the cause for removing Sir John Fortescue Aland, because his Majesty King George the Second hath immortalized his fame as the first magistrate of the world in three memorable instances, viz. of Major Oneby, above mentioned, Admiral Byng, and Earl Ferrers, names that will ever secure his majesty in full possession of that transcendant character; for though the king admired the valour of his army, honoured the bravery of his navy, and revered the exalted rank of the nobility, yet his majesty at the same time abhorred the cruelty of a soldier, in the person of Major Oneby; detested a dastard seaman, in that of Admiral Byng; and execrated the baseness of a peer, in the person of Earl Ferrers; and, therefore, the first was to have been executed, had he not committed suicide; the next was shot for cowardice; and the third, though a baron of the realm, hanged for murder at Tyburn. But yet, though his majesty was pleased to execute the law with Roman strictness, he did it also with Roman justice, for he gave the two

honourable delinquents an opportunity, not only to vindicate their inno|cence, but also to avail themselves of every circumstance in point of law, and that too after judgment, condemnation, and sentence; for he respited the execution of the admiral, in order that he might have the opinion, not only of the twelve judges, but also of the high court of parliament, which he had. The judges were unanimous in confirming the sentence of the court-martial, and the parliament declined impeach|ing it, or otherwise to interfere in their public capacity on his behalf.

Earl Ferrers being tried before the House of Lords, where all the twelve judges attended during the whole trial, the justice, the integrity, the abilities, and the candor of the judicature, rendered it the most ho|nourable and fairest trial that man could possibly have here on earth.

Nothing appearing on these very extraordinary proceedings in favour of either the illustrious prisoners, they were both executed in the man|ner above related; as to all private intercession, his majesty told the friends of the admiral, that he could shew him no mercy, as a king; and to the latter, none as a man; and asked, "Whether if the earl's steward had murdered his lordship, the servant would have found even a single friend at court?"

Could a prince thus eminent for his regard to public justice, remove a judge, merely for giving his opinion in his judicial capacity, for exe|cuting his office faithfully, impartially, honestly, and according to the best of his skill and knowledge, without fear or affection, prejudice or malice, because his opinion happened to counteract the wishes of the heir apparent to the crown? incredible! especially since his predecessor, Sir William Gascoigne, chief justice of England, hath been universally admired for his courage in committing such heir, in the time of King Henry the Fourth; besides, his royal highness well knew, that the point was a public matter, a national concern, and there|fore that it would have been highly indecent in our judge to have suf|fered his own private personal satisfaction to have interfered; in that such conduct would militate against some of the most approved as well as ancient maxims of the law; such as, for instance, "Salus populi su|prema lex esto;" "Privatum commodum publico cedat, ne respub. periat, aut quid detrimenti capiat;" "Lex citius tolerare vult privatum dam|num, quam publicum incommodum," and the like: and this is not all, for the Prince of Wales could not but consider, that in time he might himself become king, and a grandfather in the lifetime of the father; so that taking our judge's opinion in this point of view, it was really asserting and supporting the prince's future authority, in a business of the very like nature.

If the prince, when sovereign, did supersede our judge actually for the reason assigned by the lord chief justice Raymond, he must, and de|servedly

too, have incurred the odium of an unjust, tyrannical despot; for it ought to be recollected, that Sir John Fortescue Aland was the youngest of the twelve judges at the time the opinion in question was given, which was in the year 1717, and that the prince did not accede to the throne till the year 1727, ten years after the supposed displeasure, for no abuse of language, no misconstruction of actions, can torture our judge's opinion into an offence.

George the Second was pleased not only to continue Sir Peter King (who was one of the ten judges that gave his opinion on the said question, which was called the grandest prerogative of the royal family), in fa|vour of King George the First, in his office of chief justice of the bench, but also made him lord high chancellor.

So that George the Second must have conceived an insuperable per|sonal antipathy to Sir John Fortescue Aland, and that too for ten years together, tantaene animis coelestibus irae! and have acted therein in direct opposition to the great example of his royal Sire, on the very same oc|casion of affront; it cannot be; for a king of the disposition of George the Second would, on the contrary, revere a judge of such Roman forti|tude, and blessed with all the cardinal virtues of his office, courage, integrity, and abilities; and who gave so convincing a proof of his being possessed of every qualification requisite for forming the complete character of a judge. But be our arguments well founded or not, and whether his late majesty did act from the unjust motive above suggested, he soon satisfied mankind and the judge that all resentment had subsided, and that he was resolved to pay to our judge the tribute due to his merit; for, upon the death of Spencer Cowper, (which happened the very next year after Sir John Fortescue Aland's removal) his majesty was pleased to constitute him one of the justices of his court of common pleas, viz. 27 January 1728, Hilary Term, 2 Geo. II.; and what is rather a sin|gular circumstance, he succeeded Spencer Cowper, who succeeded our judge, on being superseded in manner and for the cause abovementioned.

Viner hath inscribed the nineteenth volume of his Abridgement to Mr. justice Fortescue Aland, and his name appears to the imprimatur, in the professional rank of a judge of the court of common pleas.

We by no means approve of holding up characters in derision, by rea|son of natural or accidental corporeal defects, and therefore hope the hu|mour of the bench and bar, in the story we are about to relate for the momentary smile of the reader, may be offered in apology: Sir John Fortescue Aland was remarkable for a very small, short, flat nose: a ser|jeant, who had the misfortune of having lost one of his arms, arguing a cause rather aukwardly before our judge, the former observed to the ••latter, that he seemed to handle the cause somewhat lamely; whereupon

the coifed advocate replied, "However lamely I may handle my client•• cause, I trust I shall be able, by your Lordship's patience, to convinc•• you before I have done, that it is as plain as the nose on your Lordship's face." Both these severe reflections, we have been assured, were mad•• without any particular allusion, or malevolent intention, by either the•• one or the other.

The above personal deformity in our judge escaped the notice of Si•• Godfrey Kneller, the painter of his portrait, and consequently of Fabe•• and Vertue: perhaps we should be rather more correct, in saying, w•• designedly omitted by, instead of, escaped the notice of; for painters, as wel•• as the rest of mankind, think it their duty, when it becomes their interest, to misrepresent. Sir John Strange's Reports are the only juridical annal•• to which we can refer the reader for the resolutions and opinions of ou•• judge while he sat in this court; and we fear he will find very few (〈◊〉〈◊〉 any) of them there.

Sir John Fortescue Aland continued on the bench of the court o•• common pleas, from Michaelmas vacation, 2 Geo. II. 1728, until Trinity Term 19 and 20, A. D. 1746, when he resigned the same, [see table o•• judges, &c. prefixed to Wils. Rep. 1st vol.] having sat in the superio•• courts of Westminster for the long period of thirty years, and eightee•• of them in the court alluded to; and, within a few months after hi•• death, Sir John Fortescue Aland was succeeded in the last mentioned court of common pleas by Sir Thomas Birch.

His majesty, in further testimony of his conviction of the injustice h•• had done our judge, and in honour to his judicial integrity and abilities was pleased to create him a peer of Ireland, by the style and title of Joh•• Lord Fortescue Aland, Baron Fortescue of Credan, in the kingdom o•• Ireland, by privy seal, dated at Kensington, 26 June 1746. 19 Geo. I•• and by patent dated at Dublin, 15 August same year. See Lodge•• Peerage of Ireland, Collins's Peerage of England, and Beats. Pol. Ind. •• 47. II. 117.

Character.—The university of Oxford have declared to the world that our judge always had the happiness of imitating in every respect hi•• ancestor, Sir John Fortescue, as well in commending as recommendin•• the laws of England in his writings; as in preferring a limited to a•• absolute monarchy; as in being a rare instance of possessing the cardina•• virtues of a judge, patience to hear, knowledge to explain, and justice t•• determine; he equalled him in industry and application, and, perhap•• even exceeded him in learning; neither was he excelled by him in lov•• for his country, and in his loyalty to his prince. He attained as muc•• honour, in that he did not think it sufficient merely to maintain the glor•• and private virtues of his ancestors, but considered it also his duty to ad••

to the dignity of his own family. [See our judge's excellent and learned historical preface, prefixed to his Monarchy, and to his volume of Re|ports, in commendation of the laws and constitution of England; and see the above extract from the diploma granted our judge by the uni|versity of Oxford.]

The family and title of Sir John Fortescue Aland being now extinct, we think it enough to refer to those editions of Lodge and Collins, as were published previous to the present reign.

Francis Gregor, Esq. a late very able and professional writer, and the stupenduous Doctor George Hicks, have likewise declared, that our judge sat in the supreme courts of judicature with applause, and to general satisfaction; that he deservedly had the name of one perfectly read in the Northern and Saxon literature. [Sir Gregor's large historical preface ap. Fortesc. de Laud. Leg. Ang. V.; Hicks, Pref. ap. Thesaur.; and see Sir John Fortescue Al••••d's preface abovementioned, wherein the author shews the necessity of the profession being intimately connected with the Saxon tongue.]

The juridical writings of Sir John Fortescue Aland.

I. The Difference between an absolute and limited Monarchy, as it more particularly regards the English constitution; being a treatise written by Sir John Fortescue, knight, lord chief justice, and lord high chancellor of England, under King Henry the Sixth; faithfully transcribed from the MS. copy in the Bodleian library, and collated with three other MSS. [See our judge's preface, xxxvi.] published with some remarks by John Fortescue Aland, of the Inner Temple, Esq. F. R. S. London, 1714. Four shillings, octavo. Reprinted, with amendments and an index, 1719. Six shillings, same size. This was published (both editions) under the inspection of the editor.

II. Reports of Select Cases in all the courts of Westminster Hall, tempore William the Third and Queen Anne; also the opinion of all the judges of England relating to the grandest prerogative of the royal family, and some observations relating to the prerogatives of a queen-consort. London, 1784, one guinea, folio. This is a posthumous publication.

III. The preface above mentioned. This is prefixed to each of the above forensic works.