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NOTES AND ILLUSTRATIONS.
NOTE (A.) P. 12.
In the third volume of his Commentaries, sir William Blackstone observes, that the first king's counsel, under the degree of serjeant, was sir Francis Bacon, who was made so, honoris causa, WITHOUT patent or PEE; so that the first of the modern order, who are now the sworn servants of the crown, with a standing SALARY, seems to have been sir Francis North. For the first position reference is made to Bacon's own letter; for the second, to Roger North’s Life of the Lord Keeper. It is surprising that not one of the numerous editors of the Commentaries has ever animadverted on the erroneous statement in this passage. From the whole tenor of it, and especially from the manner in which the words "without fee' and 'with salary' are used-evidently placed in opposition to each other—it is plain that the illustrious Commentator designed to convey to his readers the impression that Bacon was the first king's counsel under the degree of serjeant who did not receive a fee or salary, and that North was the first king's counsel, under the degree of serjeant, who did receive a salary.
1. It is to be observed, that the only authority for the assertion that Bacon was the first king's counsel under the degree of serjeant, etc., is the scholastic expression 'individuum vagum,' used in the passage which we shall presently cite; but surely this of itself is of little weight, especially when we find lord Bacon's own chaplain, Dr. Rawley, asserting that the appointment was 'a grace, if I err not, scarce known before.'
2. If sir William Blackstone means, (as he evidently does,) that Bacon did not receive any fee or salary, as counsel extraordinary, then he is most certainly mistaken; for, in Rymer's Fodera, vol. 16, p. 596, there is a copy of the letters patent which settle upon Bacon, as counsel extraordinary, a salary or fee of forty pounds a year. He appears not to have been aware of this patent, and solely relied upon the following passage in one of Bacon's letters to the King :-'You formed me of the learned counsel extraordinary, without patent or fee, a kind of individuum vagum.'— (Bacon's Works, vol. 12, p. 402.) It might, with some plausibility, be argued, that, in this passage, Bacon means to say, that the King did not put him to the er
pense of a patent or fee,-not that he graciously abstained from settling a salary upon him-he being, in fact, at that time, (and indeed always,) much in need of money. Bacon, however, as already observed in the text, and as appears from a recital in the patent itself, had been previously appointed to the office of counsel extraordinary by King James, in the same way as in the previous reign, by Queen Elizabeth, i. e. without patent and without fee; and we entertain not the slightest doubt that, in the paragraph just cited, Bacon refers to this antecedent appointment.
3. The circumstances of North's appointment are rather interesting. He was made one of the King's counsel extraordinary,' in consequence of his having greatly distinguished himself, as counsel for the crown, in the celebrated case of the six members, then before the House of Peers on a writ of error. This important duty was imposed upon him by his cousin, the AttorneyGeneral, who could not himself argue for the King, as he was an assistant in the House of Lords, nor could he prevail on any of the serjeants, or other eminent practitioners, to do it; ‘for they said it was against the commons of England, and they dare not undertake it.' • This action and its consequences,' says his most interesting biographer, had the effect of a trumpet to his fame, for the King had no counsel at law then, except
serjeants.' The benchers of the Middle Temple, alleging North’s youth, refused to call him up to the bench; but for this slight, says Roger North, 'the very next day, in Westminster Hall, when any of the benchers appeared at the courts, they received reprimands from the judges for their insolence, as if a person whom his Majesty had thought fit to make one of his counsel extraordinary was not worthy to come into their company; and so dismissed them unheard, with declaration that until they had done their duty, in calling Mr. North to their bench, they must not expect to be heard as counsel in his Majesty's courts. This was English, and that evening they conformed, and so were re-instated.'—North's Lives, vol. 1, pp. 64, 69. It
appears from the books of the Middle Temple that North was called to the bench on the 5th of June, 1686.
The epithet extraordinary' is applied to the king's counsel in order to distinguish them from the attorney and solicitor-general, who are the regular counsel of the crown; and it was thus that Bacon was described both by Elizabeth and James. We may add to this already extended note, that there is this difference between king's counsel and barristers with patents of precedence :—the former have standing salaries, and cannot, without license, plead against the crown ;-the latter receive no salaries, and are not sworn, and, therefore, may so plead.
NOTE (B.) P. 18.
Earl of Essex to Mr. Francis Bacon. Sir, I went yesterday to the Queen through the galleries in the morning, afternoon, and at night. I had long speech with her of you, wherein I urged both the point of your extraordinary sufficiency proved to me not only by your last argument, but by the opinion of all men I spake withal, and the point of mine own satisfaction, which, I protested, should be exceeding great, if, for all her unkindness and discomforts past, she should do this one thing for my sake. To the first
he answered, that the greatness of your friends, as of my lord Treasurer and myself, did make men give a more favourable testimony than else they would do, thinking thereby they pleased us. And that she did acknowledge you had a great wit, and an excellent gift of speech, and much other good learning. But in law she rather thought you could make show to the utter.