John Fortescue Aland, 1st Baron Fortescue of Credan

Sir John Fortescue Aland, 1st Baron Fortescue of Credan D.C.L., F.R.S.
A mezzotint of Fortescue Aland by John Faber, Jr., after a portrait by Sir Godfrey Kneller, in the collection of the British Museum. Dated 1733, this portrait was completed in the subject's lifetime.
Baron of the Exchequer
In office 24 January 1717 – Michaelmas term 1718
Justice of the Court of King's Bench
In office Michaelmas term 1718 – 10 June 1727 (day before George II's accession)
Justice of the Court of Common Pleas
In office 27 January 1728 – Trinity term 1746
Personal details
Born	John Fortescue 7 March 1670 England
Died	19 December 1746 (aged 76) England
Resting place	St Mary the Virgin, Stapleford Abbots, Essex, England 51°38′37.9″N 0°10′4.01″E / 51.643861°N 0.1677806°E
Political party	Whigs
Spouse(s)	Grace Pratt (c. 1707), Elizabeth Dormer (29 December 1721)
Children	Dormer Fortescue Aland, 2nd Baron Fortescue of Credan, and five others

Sir John Fortescue Aland, 1st Baron Fortescue of Credan (7 March 1670 – 19 December 1746) was an English lawyer, judge and politician. He was also a writer on English legal and constitutional history, and was said to have influenced Thomas Jefferson. A member of both the Middle Temple and Inner Temple, he became a King's Counsel in 1714 and was then appointed Solicitor General, first to the Prince of Wales (later George II) and then to his father George I in 1715. After a short stint as a Member of Parliament, Fortescue Aland was knighted and elevated to the Bench as a Baron of the Exchequer in 1717. He was subsequently a justice of the Court of King's Bench (1718–1727) and of the Court of Common Pleas (1728–1746), save for a brief hiatus between 1727 and 1728 which has been attributed to George II's displeasure with one of his legal opinions.

In 1714 Fortescue Aland produced a volume entitled The Difference between an Absolute and Limited Government based on a manuscript in the Bodleian Library by his distant ancestor Sir John Fortescue (c. 1394 – c. 1480), to which he added an extended preface. It has been said that this is the earliest work in English on constitutional history. Jefferson referred to Fortescue Aland's views in the 1719 edition of this work, and in another preface by Fortescue Aland to a collection of judicial decisions which he edited, entitled Reports of Select Cases in All the Courts of Westminster-Hall (1748).

Early life and education

John Fortescue Aland, born on 7 March 1670, was the second son of Edmund Fortescue of Bierton, Buckinghamshire,^[1] and his wife Sarah Aland, the eldest daughter of Henry Aland of County Waterford, Ireland. In 1704, upon succeeding to his mother's property in Ireland upon the death of his elder brother Edmund, he took Aland as an additional surname.^[1][2][3] It is unclear whether he was educated at home or attended a public school,^[4] but at any rate he studied law at the Middle Temple in 1688 and was called to the Bar in 1695. He was then called to the Inner Temple in 1712, and made a bencher of that Temple in 1716.^[1][5][6][7]

Legal, judicial and political career

A c. 1753 portrait of George II by Thomas Worlidge. Did the King dismiss Fortescue Aland as a judge in 1727 for a decision that displeased His Majesty?

Fortescue Aland, who was elected a Fellow of the Royal Society on 20 March 1712^[8] and became a King's Counsel in 1714,^[6] was appointed Solicitor General, first to the Prince of Wales (later George II) on 22 October that year,^[9] and to then to his father George I in December 1715. He succeeded his father-in-law Sir John Pratt as a Whig Member of Parliament for Midhurst in 1715, vacating his seat when he was knighted and raised to the Bench as a Baron of the Exchequer on 24 January 1717. He was a justice of the Court of King's Bench from the court vacation in the Michaelmas term of 1718 until 1727, and of the Court of Common Pleas from 1728 until the Trinity term in 1746.^[1][6][10]

Upon the death of George I and the accession of the Prince of Wales as George II on 11 June 1727, Fortescue Aland was not issued a fresh patent and was thus removed as a judge. One reason given for this was his response to the following question which had been referred by George I to the courts:^[11]

Whether the education and care of his majesty's (king George the First's) grandchildren in England, and of Prince Frederic [sic] (father to his present majesty [George III]), eldest son of his royal highness the prince of Wales (grandfather to king George the Third [George II]) 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 as of right to his majesty, as king of the realm, or not?

The referral arose from a quarrel between the King and the Prince of Wales, which led to the King banishing the Prince of Wales and his wife Caroline from St James's Palace, the King's residence, and preventing them for a time from seeing their children who remained in the care of the King.^[12] Fortescue Aland was one of the ten judges who held that George I did have the right to make decisions concerning the education and marriages of his grandchildren. On George II's accession, Fortescue Aland wrote to George Walpole, one of the new King's Gentlemen of the Bedchamber, asking for protection "if there should be any difficulty in renewing my patent" due to George II's dissatisfaction with his opinion. He pointed out: "His Majesty has all along approved of my services, when I was his solicitor-general, whilst Prince of Wales; and when I was solicitor-general to his father; and himself made me a baron of the Exchequer by your recommendation; for he was regent and present in council when that was done."^[1]

An 1800 stipple engraving of Fortescue Aland by Silvester Harding in the collection of The Royal Society. Fortescue Aland was elected a Fellow of the Society in 1712.

However, William Tooke, in his New and General Biographical Dictionary (1798), "very much doubt[ed] the authenticity of the said general assertion"^[11] as he did not see why George II, whom he regarded as "eminent for his regard to public justice", would have removed a judge "merely for giving his opinion in his judicial capacity, for executing 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".^[13] In any case, if the King had in fact acted for this unjust motive, he had a change of heart and reinstated Fortescue Aland as a judge on 27 January 1728.^[14] This was the last occasion on which a judge failed to have a patent renewed on a monarch's accession to the throne.^[15] The University of Oxford conferred on Fortescue Aland an honorary Doctor of Civil Law (D.C.L.) by diploma on 4 May 1733.^[5] Tooke notes that the writers Francis Gregor and George Hicks said Fortescue Aland had "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".^[16]

Following Fortescue Aland's resignation as a judge in 1746 at the age of 76, having served in that capacity for some 30 years, he was raised to the Peerage of Ireland as Baron Fortescue of Credan in the County of Waterford under the Privy Seal at Kensington on 17 June 1746, and by patent at Dublin on 15 August the same year.^[17] He died four months later on 19 December 1746.^[2][6]

Publications and influence

The title page of the first edition of Fortescue's The Difference between an Absolute and Limited Monarchy (1714),^[18] which Fortescue Aland arranged to be published

In 1714, Fortescue Aland produced a volume^[19] entitled The Difference between an Absolute and Limited Monarchy,^[18] based on a manuscript in the Bodleian Library by his distant ancestor Sir John Fortescue (c. 1394 – c. 1480).^[1][20] His own comments on the subject were in an extended preface. (The work was re-edited by Charles Plummer in 1885 as The Governance of England.)^[21] This has been claimed to be the earliest work in English on constitutional history.^[22]

A collection of judicial decisions edited by Fortescue Aland was published two years after his death as Reports of Select Cases in All the Courts of Westminster-Hall (1748).^[23]

Jefferson read the 1719 edition of The Difference between an Absolute and Limited Monarchy,^[24] and its recommendation of Anglo-Saxon for common lawyers, when he was studying under George Wythe.^[25] Later, in 1814, Jefferson mentioned the preface of Fortescue Aland's Reports of Select Cases with approval of his learning, when writing to Thomas Cooper.^[26] But he did not accept the way Fortescue Aland left the relationship of church law (in particular the Ten Commandments) to English common law an open question, preferring the analysis of David Houard.^[27]

Family

A 1750 line engraving of Fortescue Aland by George Vertue, also after the portrait by Kneller, with his coat of arms

Around 1707,^[28] Fortescue Aland married Grace Pratt, daughter of Sir John Pratt, the Lord Chief Justice of England and Wales. All of their five children predeceased him without issue.^[29] Following Grace's death, Fortescue Aland married Elizabeth Dormer (5 September 1691 – April 1794), daughter of Robert Dormer, also a judge of the Court of Common Pleas, on 29 December 1721 in St Bride's Church, London. They had one son, Dormer, who succeeded his father as the second and last Baron Fortescue of Credan upon Fortescue Aland's death. Fortescue Aland was buried in the chancel of St Mary the Virgin, Stapleford Abbots, in Essex, and his second wife was later buried alongside him.^[2][6] As Dormer died unmarried on 9 March 1780 the family and title of Fortescue Aland became extinct,^[16] and his estates passed to the heir of Earl Clinton who was Lord Fortescue of Castle Hill.^[2][30]

The blazon of Fortescue Aland's coat of arms was as follows: "Azure, a bend engrailed Argent, cottised Or", the crest "a plain shield Argent", the supporters "two greyhounds Argent, collar and lined Gules", and the motto "Forte scutum salus ducum" ("A strong shield is the salvation of leaders").^[31]

Notes

1. J. B. Lawson, FORTESCUE ALAND, John (1670–1746), of Stapleford Abbots, Essex, History of Parliament Online, Institute of Historical Research, School of Advanced Study, University of London, archived from the original on 5 January 2015, retrieved 5 January 2015, also published in Romney Sedgwick, ed. (1970), The History of Parliament: The House of Commons, 1715–1754 i, New York, N.Y.: Oxford University Press for the History of Parliament Trust, OCLC 127795.
2. Lord John FORTESCUE-ALAND of Credan, Fortescue.org, archived from the original on 5 January 2015, retrieved 5 January 2015.
3. There are two older alternative theories. William Tooke suggests that Fortescue Aland adopted his mother's surname in her honour (see William Tooke (1798), "ALAND (Sir John Fortescue)", A New and General Biographical Dictionary: Containing an Historical and Critical Account of the Lives and Writings of the Most Eminent Persons in Every Nation; Particularly the British and Irish; from the Earliest Accounts of Time to the Present Period, wherein their Remarkable Actions and Sufferings, their Virtues, Parts, and Learning are Accurately Displayed, with a Catalogue of their Literary Productions. i, London: Printed for G. G. and J. Robinson, J. Johnson, J. Nichols, J. Sewell, H. L. Gardner, F. and C. Rivington, W. Otridge and son, G. Nicol, E. Newbery, Hookham and Carpenter, R. Faulder, W. Chapman and son, J. Deighton, D. Walker, J. Anderson, T. Payne, J. Lowndes, P. Macqueen, J. Walker, T. Egerton, T. Cadell, jun. and W. Davies, R. Edwards, Vernor and Hood, J. Nunn, Murray and Highley, T. N. Longman, Lee and Hurst, and J. White, pp. 173–174, OCLC 220690286), while the Dictionary of National Biography (1885) states that it was Fortescue Aland's father who took his wife's surname upon their marriage (see Sidney James Mark Low (1885), "ALAND, Sir JOHN FORTESCUE", in Leslie Stephen, Dictionary of National Biography: From the Earliest Times to 1900. Volume 1: Abbadie–Anne. i, London; Oxford: Smith & Elder, p. 216, OCLC 644203643 ("DNB")).
4. Tooke surmises that Fortescue Aland attended the University of Oxford as later in life he was conferred an honorary Doctor of Civil Law (D.C.L.) by the University on the strength of once having been a member of it (Tooke, pp. 173–174), but the DNB states "he was probably not educated there" (DNB, p. 216, citing Thomas Fortescue, Lord Clermont (1869), A History of the Family of Fortescue in All its Branches ii, London: Printed by Whittingham and Wilkins, p. 73, OCLC 457292712).
5. Joseph Foster (1888), "Fortescue-Aland, Sir John", Alumni Oxonienses: The Members of the University of Oxford 1715–1886: Their Parentage, Birthplace and Year of Birth, with a Record of their Degrees; being the Matriculation Register of the University, Alphabetically Arranged, Revised and Annotated; Later Series. F–K. ii, Oxford: Parker & Co., p. 481, OCLC 635300818.
6. DNB, p. 216.
7. Tooke, pp. 173–174, states that he was a reader of the Inner Temple.
8. Thomas Thomson (1812), History of the Royal Society, from its Institution to the End of the Eighteenth Century, London: Printed for Robert Baldwin, p. xxxii, OCLC 3664389. He was subsequently admitted to the Society on 1 May 1712: ibid.
9. Tooke, p. 175.
10. Tooke, p. 180; The Concise Dictionary of National Biography: From Earliest Times to 1985. Volume I, A–F, Oxford; New York, N.Y.: Oxford University Press, 1992, ISBN 978-0-19-865305-9; Office-holders in Modern Britain: Household of Prince George 1721–27: Alphabetical List of Appointees, Institute of Historical Research, School of Advanced Study, University of London, archived from the original on 17 August 2002, retrieved 17 August 2002; Office-holders in Modern Britain: Household of Prince George 1721–27: List of Appointments 3, Institute of Historical Research, School of Advanced Study, University of London, archived from the original on 17 August 2002, retrieved 17 August 2002; John Hutchinson (2003) [1902], A Catalogue of Notable Middle Templars: With Brief Biographical Notices, London: Printed for the Society of the Middle Temple (reprinted by The Lawbook Exchange, Clark, N.J.), p. 2, ISBN 978-1-58477-323-8.
11. Tooke, p. 178.
12. Andrew C. Thompson (2011), George II: King and Elector, New Haven, Conn.; London: Yale University Press, p. 53, ISBN 978-0-300-11892-6.
13. Tooke, p. 179.
14. Tooke, p. 180.
15. David Lemmings (1993), "The Independence of the Judiciary in Eighteenth-Century England", in Peter Birks, The Life of the Law: Proceedings of the Tenth British Legal History Conference, Oxford, 1991, London; Rio Grande, Ohio: Hambledon Press, p. 125–149 at 137, ISBN 978-1-85285-102-6.
16. Tooke, p. 182.
17. Tooke, p. 181.
18. John Fortescue (1714), The Difference between an Absolute and Limited Monarchy: As it More Particularly Regards the English Constitution. Being a Treatise Written by Sir John Fortescue, Kt. Lord Chief Justice, and Lord High Chancellor of England, under King Henry VI. Faithfully Transcribed from the MS. Copy in the Bodleian Library, and Collated with Three Other MSS. Publish'd with some Remarks by John Fortescue-Aland, of the Inner-Temple, Esq; F.R.S. (1st ed.), London: John Fortescue Aland; printed by W[illiam] Bowyer in White-Fryars, for E. Parker at the Bible and Crown in Lombard-Street, and T. Ward in the Inner-Temple-Lane, OCLC 642421515.
19. Francis D. Wormuth (1949), The Origins of Modern Constitutionalism, Harper & Bros, OCLC 864152.
20. Tooke, p. 173.
21. John Fortescue (1885), Charles Plummer, ed., The Governance of England: Otherwise Called The Difference between an Absolute and a Limited Monarchy. By Sir John Fortescue, Kt. Sometime Chief Justice of the King's Bench. A Revised Text Edited with Introduction, Notes, and Appendices by Charles Plummer, M.A. Fellow and Chaplain of Corpus Christi College, Oxford., Oxford: Clarendon Press, OCLC 1342598.
22. Kemp Malone; Albert C. Baugh (1959), Literary History of England: Vol. 1: The Middle Ages (to 1500), London: Routledge, p. 305, ISBN 978-0-203-39273-7.
23. John Fortescue Aland (1748), Reports of Select Cases in All the Courts of Westminster-Hall; also the Opinion of All the Judges of England Relating to the Grandest Prerogative of the Royal Family, and some Observations Relating to the Prerogative of a Queen Consort. By the Right Honourable John Lord Fortescue, Late One of the Justice of the Common Pleas. With Tables of the Names of the Cases and Principal Matters., In the Savoy [London]: Printed for Henry Lintot, (assignee of Edw. Sayer, Esq;) and sold by W. Chinnery, in the Inner-Temple Lane, OCLC 173652942.
24. John Fortescue (1719), The Difference between an Absolute and Limited Monarchy: As it More Particularly Regards the English Constitution. Being a Treatise Written by Sir John Fortescue, Kt. Lord Chief Justice, and Lord High Chancellor of England, under King Henry VI. Faithfully Transcribed from the MS. Copy in the Bodleian Library, and Collated with Three Other MSS. Publish'd with some Remarks by Sir John Fortescue-Aland, Kt. One of the Justices of His Majesty's Court of Kings-Bench. (2nd ed.), London: John Fortescue Aland; printed by W[illiam] Bowyer in White-Fryars, for E. Parker at the Bible and Crown in Lombard-street, and T. Ward in the Inner-Temple-Lane, OCLC 642421151.
25. Stanley R. Hauer (October 1983), "Thomas Jefferson and the Anglo-Saxon Language", Publications of the Modern Language Association of America 98 (5): 879–898. See also Thomas Jefferson, Letter to Sir Herbert Croft, from Monticello, October 30, 1798, Founders Online, National Archives and Records Administration, archived from the original on 7 January 2015, retrieved 7 January 2015, I was led to set a due value on the study of the Northern languages, & especially of our Anglo-Saxon while I was a student of the law, by being obliged to recur to that source for explanation of a multitude of Law-terms. a preface to Fortescue on Monarchies, written by Fortescue Aland, and afterwards premised to his volume of Reports, developes the advantages to be derived, to the English student generally, and particularly the student of law, from an acquaintance with the Anglo-Saxon; and mentions the books to which the learner may have recourse for acquiring the language.
26. Thomas Jefferson (1994), "Letter to Thomas Cooper, from Monticello, February 10, 1814", in Merrill D. Peterson, Writings [Library of America; 17], New York, N.Y.: Literary Classics of the United States, pp. 1321–1329, ISBN 978-0-940450-16-5.
27. David Houard (1776), Traités sur les coutumes anglo-normandes : qui ont été publiées en Angleterre depuis le onzième, jusqu'au quatorzième siècle ; avec des remarques sur les principaux points de l'Histoire & de la Jurisprudence françoises, antérieures aux Etablissements de Saint Louis. Par M. Houard, avocat en Parlement, correspondant de l'Académie royale des Inscriptions & Belles-Lettres. Tome premier [-quatrième]. [Treatises on Anglo-Norman customs: Items published in England from the eleventh to the fourteenth century; with remarks on the main points of history and French jurisprudence, prior to the establishments of Saint Louis. By Mr. Houard, lawyer to Parliament, correspondent of the Académie des Inscriptions et Belles-Lettres. First [-fourth] volume.], Paris: Chez Saillant, Nyon & Valade, libraires, rue S. Jacques & à Dieppe, Chez Jean-B.-Jos. Dubuc, Imprimeur du Roi., OCLC 458119422. See H. Trevor Colbourn (1965), The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution, Chapel Hill, N.C.: Published for the Institute of Early American History and Culture at Williamsburg, Virginia, by the University of North Carolina Press, OCLC 426522.
28. The marriage licence was issued on 19 December 1707: History of Parliament Online.
29. They were a son, Hugh; a son, John (1712 – 9 December 1743); another son whose name is unknown (born 1714); another son named Hugh (christened 17 July 1715); and a daughter whose name is unknown (c. 1716 – 5 October 1731): John Lodge (1754), The Peerage of Ireland, or, A Genealogical History of the Present Nobility of that Kingdom. With their Paternal Coats of Arms, Engraven on Copper. Collected from the Publick Records; Authentic Manuscripts; Approved Historians; Well-attested Pedigrees; and Personal Information. By Mr. Lodge, Deputy Keeper of the Records in Bermingham-Tower. iv, Dublin: Printed for J. Leathley, G. and A. Ewing, W. Smith, J. Smith, G. Faulkner, A. Bradley, and A. Moore, booksellers, p. 311, OCLC 77754384.
30. Possibly "Hugh Fortescue, esq. a descendant of an elder branch of the same family, [who] was created a peer of England in 1746 by the title of lord Fortescue, baron of Castle-hill, co. Devon, and earl of Clinton": George Crabb (1833), "FORTESCUE (Her.)", Universal Historical Dictionary; or, Explanation of the Names of Persons and Places in the Departments of Biblical, Political, and Ecclesiastical History, Mythology, Heraldry, Biography, Bibliography, Geography, and Numismatics. Illustrated by Numerous Portraits and Medallic Cuts. By George Crabb, A.M. Author of the Universal Technological Dictionary, and of English Synonymes Explained. Enlarged Edition, Brought Down by the Author to the Present Time. In Two Volumes. i (Enl. ed.), London: Printed for Baldwin and Cradock, Paternoster-row, and for the new proprietor, J. Dowding, Newgate-street, pp. 539–540, OCLC 2831336.
31. Tooke, p. 174.

Further reading

• Foss, Edward (1848–1864), The Judges of England: With Sketches of their Lives, and Miscellaneous Notices Connected with the Courts at Westminster, from the Time of the Conquest viii, London: Longman, Brown, Green, and Longmans; John Murray (vols. vii–ix), p. 98, OCLC 60730318.
• Fortescue, Thomas, Lord Clermont (1869), A History of the Family of Fortescue in All its Branches ii, London: Printed by Whittingham and Wilkins, p. 67, OCLC 457292712.
• Walpole, Horace; Park, Thomas (1806), A Catalogue of the Royal and Noble Authors of England, Scotland, and Ireland; with Lists of their Works v, London: Printed for J. Scott, p. 290, OCLC 961680.