Hearsay ... the Journal of the Bar Association of Queensland
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Issue 70 - Oct 2014
Innocent Diversions: Australian Legal Fashion Print E-mail

legal_dress_intro.jpgI say not this, that I would never have a young gentleman accommodate himself to the innocent diversions in fashion, among those of his age and condition.  I am so far from having him austere and morose to that degree.1

In his epistle dedicatory of 1690, Locke wrote that his thoughts “were rather the private conversation of two friends, than a discourse designed for public view” but that having “been consulted of late by so many, who profess themselves at a loss how to breed their children; and the early corruption of youth is now become so general a complaint” that he “cannot be thought wholly impertinent” to offer “something, if it be but to excite others, or afford matter of correction.”

By these introductory remarks for the exhibition, we propose to share with you a private conversation about the history of legal dress for the mere purpose of – hopefully – exciting others and correcting a few persistent misunderstandings.

innocent_1.jpgTraditions of legal dress

The manner in which judges and barristers dress for court is, and has always been, overwhelmingly a matter of custom and tradition.  On occasion, usages were laid down in rules but they have seldom been the subject of external interference.

One of the rare legislative interventions occurred in 1975, when the Commonwealth Parliament, by the then section 97(4) of the Family Law Act 1975 (Cth), forbade judges and counsel to wear robes in matrimonial matters. 

In Russell v Russell,2 the High Court considered whether the provision was valid in relation to State courts exercising federal jurisdiction. Both Barwick CJ and Gibbs J concluded the provision was invalid because it interfered with the organisation of the courts and did not relate merely to practice and procedure in the exercise of federal jurisdiction.  Mason and Jacobs JJ upheld the provision as a matter of procedure, not affecting the constitution, structure and organisation of the courts.  Stephen J, who as the Americans might say was the “swing vote”, also upheld the prohibition, as incidental to investiture with federal jurisdiction and as not touching upon the constitution or organisation of the courts.

Barwick CJ noted:

The robing of the judge is not required by any State statutory law, but is part of the traditional inheritance of the State court as a court in the common law tradition.3

Then, plainly in dissent, expressed the opinion that it is:

inherent in the concept of a court that it can decide for itself how its members will be attired, and what dress it will expect of those who are to appear before it as representatives of parties. … It is for the State courts to decide for themselves whether their judges will or will not robe, unless the State legislature should otherwise provide.4

Gibbs J was of a similar view, also in dissent:

The judges of the Supreme Courts, when sitting in court, traditionally wear robes. Some persons consider that robes are outmoded and should be dispensed with; others regard them as a valuable symbol of the antiquity of the honourable traditions of the law and as a means of adding to the dignity of proceedings that are of their nature serious and important.

  The robes worn by the judges of the Supreme Court are a mark of their status.  If the Parliament could legislate as to what the judges shall or shall not wear, it could force upon a court a mode of dress incompatible with its former dignity and status.5

Although with the majority on the validity question, Mason J seems to have agreed that:

The absence of robes might well be thought to diminish the air of formality which would otherwise prevail in the proceedings.6

However, as Stephen J observed:

robed or unrobed the tribunal in question remains unaltered in its constitutional and general organization. …  What a bench of judges customarily wears or requires counsel to wear at any particular time forms no part of the constitution or organization of that court.7

The presence of robes in no way alters the substance of the proceedings, it does not go to jurisdiction nor does it affect the legal rights being adjudicated upon the proceedings.8

Barwick CJ had the same view:

neither the validity nor the regularity of what the court does would be affected by the wearing of or the dispensation with, judicial robes.9

This legislative interference with court dress in matrimonial matters was short-lived.  Following the shooting of Justice David Opas,10 the bombing of the homes of Justice Richard Gee11 and Justice Raymond Watson12 and the bombing of the Parramatta Family Court,13 the Parliament repealed the ban on wigs and robes in 1987. Absent the statutory ban, Family Court judges resumed wearing wigs and robes and counsel robed once again, although usually without wigs, for judgments, trials and contested hearings where oral evidence is adduced.  

On of the few other interventions by the legislature occurred in the Australian Capital Territory, where in 2002, the Legislative Council adopted a “policy” in relation to robing in the Supreme Court, which the Court then made the subject of a practice direction.14 This intervention was quite limited, to the effect that “When the Court robes, counsel will robe” and “Wigs are only required where one is worn by the particular Judge or Judicial Registrar.”  However, it included the provision that “when the Judge or Master removes his or her wig, counsel will do likewise”.   This mandatory provision differs from the customary practice, which continues in this jurisdiction, that when a judge removes his or her wig it is an invitation, but not a demand, for counsel to do likewise.

Much earlier last century, in McPherson v McPherson,15 the Privy Council had observed that the effect of the absence of robes was to make proceedings “in one respect less formal than those of an ordinary court”.   Considerations of public interest in court proceedings seem to have led their Lordships in that case to strongly deprecate the informality they found to surround the undefended divorce proceedings conducted by an unrobed judge, during the luncheon interval in the judge’s library at the Edmonton Court House, Alberta, Canada.

In Re Douglas, Justice Young of the NSW Supreme Court16 noted:

the Australian courts just adopted the English system last century and then adjusted the clothing for local requirements. When there was a change from bar ties to jabots, what seems to have happened is that the judges of the superior court as a collegiate body indicated that they would see counsel in jabots instead of bar ties and the other courts followed suit.  This would seem to indicate that the power is a power in the courts, query the superior court, to be exercised by all the judges.  Just how the judges internally exercise that power is a matter for them.17    

Our court dress derives from custom and practice that may be traced, in large part, to the London Inns of Court.18 Over time, dress customs have been significantly affected by outside trends and even by foreign fashion and developments in technology and climate. 

As Sir Robert Megarry19 noted in St Edmundsbury Diocesan Board v Clark:20

Robes are convenient in normal circumstances as an indication of the functions of those engaged in the proceedings and as enhancing the formality and dignity of a grave occasion.  In their appearance they also lessen visual differences of age, sex and clothing, and so aid concentration on the real issues without distraction.  But robes are not essential, and the court may dispense with them where there is good reason.  Jurisdiction is neither conferred nor excluded by mere matters of attire or locality, and I need not discuss the numberless occasions upon which judges have exercised a variety of judicial functions in unusual places without the aid of robes for them or for counsel, from Lord Lyndhurst LC in a box at the opera to Sir Lancelot Shadwell V-C while bathing in the Thames21 and Sir Samuel Evans P in a dressing-gown in his bedroom.22

Legal dress as we understand it today consists primarily of robes, wigs and associated accessories. 

We want to say something about each, because there are good examples of them in the exhibition, and also because their history and development has some interesting features and may allow the correction of a few persistent misconceptions.

ceremonial-robe_2.jpgThe robe

In Europe, since the 1100s, the robe has been a symbol of status, worn by clergy, scholars, doctors, civil servants and lawyers.  It is the distinguishing dress of a person of learning.  University staff and students still don a robe or gown for formal occasions, in particular graduations.  In many denominations, clergy still wear robes.  So lawyers are not the only contemporary keepers of the 12th century faith in distinguishing dress.

From at least the 1450’s, in England admission as a barrister was conferred by the various Inns of Court in London.  Each Inn, and later the Inns of Court collectively, adopted rules of conduct, which sometimes included some rules relating to dress.  The exhibition includes an extract of last of these, dating from 1635.  Some present may note that they included a prohibition on beards. 

By this time, judges and barristers were wearing robes of more or less the same form, marking their status as learned in the law.  Most judges were drawn from the ranks of senior barristers (serjeants-at-law) and worn the robes appropriate to their exulted station.  These comprised a long robe, and a full hood with a cowl worn around the shoulders.  Judges also wore a ‘mantle’ as symbol of their authority.     

Judges wore coloured robes, green being the most favoured until the middle of the 15th century, when scarlet came into vogue.23

From the time of the Reformation, robes generally became darker and less extravagant.  In 1577 the Inns regulations prohibited “frivolous items of clothing”.

The Judges of King’s Bench drew up dress rules in 1635, which formalised these arrangements.  Climate had its effect.  There was also a liturgical element.  Black or violet robes were to be worn with similar coloured hoods.  Between Ascension Day24 and the feast of Saints Simon and Jude25 the facings of the judge’s robe was to be lined with taffeta.  On the latter feast day, the judges were to change to wear robes with a white fur facing, which they worn until the following Ascension Day. 

On Saints days, judges wore scarlet robes – perhaps to symbolise the blood of the martyrs – faced with either taffeta or white fur, depending upon the time of year.  These scarlet robes were also to be worn when trying criminal matters on circuit and when attending church on Sundays (each a feast of the Resurrection). 

In the exhibition, we see the ceremonial robes of former Senior Puisne Judge the Hon George Lucas AC, QC.  The style of these robes can be traced to the winter robes worn for Saints’ Days in England.  They are red, trimmed with ermine.

We also have the robes worn by former Supreme Court Justice the Hon Tom Shepherdson for criminal trials.  These resemble the English summer robes for Saints Days. 

The striking robes worn in criminal trial by former Chief Justice Sir William Mack 

KBE are also in the exhibition.  These plainly derive from the violet robes approved by the King’s Bench.  Robes of this colour and lighter weight came to be worn judges in Australian courts in the late 19th Century.26

A theme emerges: as spectacle and formality recede from daily life, colour, theatre and ceremony tend to linger in court, particularly in criminal proceedings, where the authority of the court over the subject and the duty to do justice between the subject and the state is perhaps most dramatically in focus. 

The District Court ceremonial robes are a little different and were introduced by former Chief Judge Shanahan AO.27 We have on display in the exhibition the ceremonial robes here used by the current Chief Judge of the District Court, her Honour Chief Judge Wolfe AO.

Some barrister’s robes were colourful too. Serjeants appearing before the early Court of Chancery wore a ‘part-coloured dress’.  The colours they wore depended on the monarch or peer they were serving.  Those could be striped and in more than one colour: as if, today, counsel appearing for Queensland might wear maroon robes and counsel for New South Wales might wear blue.  

By the early 17th Century, for counsel a distinctive Bar gown had become customary.  It was made of black cloth or grogram, with velvet facings and two vertical strips of velvet on the upper sleaves.   The 1635 rules of the Inns prescribed, “Dress on all occasions is to be in gowns of a sad colour”. 

In the even more ascetic times of the Interregnum, under the rule of Oliver Cromwell and briefly his son Richard, everyone, including the judiciary abjured any distinctive form of dress.

Upon the Restoration, like much else, traditional robes were quickly re-introduced. 

The ‘Noble Robe’ of counsel returned, with velvet on the back, and adorned with tufts and lace.

The restored Charles II is perhaps the most influential person in the history of legal dress.  Upon his death in 1685, the black ‘court suit and mourning gown’ was adopted by Counsel.   It was said by Sir Frederick Pollock that “the Bench and Bar of England went into mourning at the death of Queen Anne and have remained so ever since”.  The observation seems to be out by almost 30 years.  Contemporary depictions show the simple black gown was worn by counsel for the funeral of Queen Mary twenty years before in 1694.28 And in 1697, Chief Justice Holt of King’s Bench complained of having to hear barristers in mourning gowns.29

Thereafter, these black robes became the norm for barristers.  Today’s junior robes 

are little changed from the time of the late King’s death. 

Not everyone welcomed the simplicity and drabness of the black gown. Sir Henry Chauncy, writing in the 17th century, complained:

it seems very ominous that these learned Men should now decline this Noble Robe and wear a scandalous Livery which resembles those that Bearers usually wear at Funerals, as though the Law lay a dying…and divesting it of that ancient robe, and introducing an ignominious Habit in the room of it.

One curiosity about the barrister’s robe is the two cloth appendages attached at the left shoulder: one is shaped like a violin cut in half lengthways and attached to the back of the gown along the straight edge stitched so that it is divided into a smaller upper part and a lower section open at its bottom end.  The second appendage is a long strip of coth hanging down the front of the gown.  

It is commonly suggested that the rear appendage it is the remnant of a coin purse, hung over a Counsel’s shoulder, which allowed a grateful client to discreetly pay the barrister an honorarium (while the counsel’s back was turned). 

It is more likely, that the black cloth residue is not a purse, but is all that remains of the original mourning hood, worn with the gown in the 1680’s, and the long cloth strip is the liripipe, another part of the hood, which indicated by its length the rank of the wearer.30

As you might expect, early lawyers were notoriously hard-working.  According to one of Thomas Middleton’s characters, a lawyer’s death could only occur during vacation since, “he has no leisure to die in the term”.31

On the subject of Counsel’s fees, we have included in the exhibition a gold Noble from the reign of Henry V.  Dating from the time of the Battle of Agincourt almost 600 years ago, it is by far the oldest item in the exhibition.  The noble, valued then at 6 shillings and 8 pence or a third of a pound, was the standard fee paid to a clerk in chancery to draw a bill.   The coin, now scarce, is valued at about GBP2,500, which seems a fair fee for drawing a pleading.

The 17th Century also saw the establishment of the rank of Queen’s and King’s Counsel, who wore black robes made of silk to distinguish them from junior counsel.  In the exhibition, you may see the silk robes by Sir Harry Gibbs.

It is a curiosity that in Australian courts solicitors, appearing as advocates, do not robe.  When the County Court system was established in England and Wales in 1848, with robed judges, solicitors were given a right of audience as advocates, it apparently caused a revival of a lapsed privilege of attorneys wearing robes in court.32 It continues to be the case that in criminal proceedings in England and Wales that a solicitor or other authorised 

advocate wears the same wing collar with bands as a barrister and a gown, albeit without the gathered sleeves. 

Since 2008, solicitor advocates in higher English courts have been entitled to “wear short wigs in circumstances where they would be worn by Queen’s Counsel or junior counsel.”33

We turn now to consider briefly the history of wigs and their modern relations.

Wigs

In France, the fashion for wearing wigs dates to 1624, when Louis XIII went prematurely bald, shaved his head and wore a wig.  His son and successor, Louis XIV had similar follicle challenges and took to the wig with gusto.

During the Commonwealth era, Charles II lived in exile at the Court of Louis XIV.  In 1660, when restored to the throne, the sovereign returned from France in the latest continental style, which included the wig.  Wigs then were quite fulsome and the more expensive were made of human hair.  Before donning such a wig, a peer or gentleman would have his head shaved, as Samuel Pepys reported in his diary for 1663.

By the 1680’s the fashion for wig wearing had become universal among followers of the Royal Court, including judges and members of the Bar.  Gone were the puritan sanctions of 1635, forbidding “foreign fashion”.

The fashion lasted for most of the 18th century, spreading through the middle classes.

In 1705, the Inns of Court ruled that lawyers were to wear white, grey or dark haired wigs.34

The wigs were covered with Pomade – a scented ointment - in order to keep them free of disease.  Upkeep was required. 

Before wigs and before QC’s, the most senior rank of counsel was Serjeant-at-Law.  Serjeants, were as a group, known as the “Order of the Coif”.  The coif (you will immediately recognise the connection to words such as coiffure and coiffeur (a hairdresser)) was a head covering usually of white cloth tied under the chin.  The Serjeant’s wig had a hole at the very top through which the coif could be seen, to show that the wearer was a member of the Order of the Coif.  This may be the origin of the central hollow, now sealed up, in the bench wig, still used by judges today.  In the exhibition we have the bench wig of the Honourable Jack Kelly CBE RFD QC.35

The large size of 17th and early 18th century wigs led to the judiciary abandoning the skull cap that had until then been the norm.  The black cloth cap was retained but worn only on occasions of importance one of which was when the death penalty was pronounced.

In 1751, William Hogarth published his satire “the 5 orders of periwigs, Episcopal, Academic, Legal, Queerinthian and Composite”, in which he parodied wig-wearers for their extravagance and outlandish nature.   The fashion tide turned in favour of shorter wigs.  By 1770, judges were regularly wearing short bob wigs, like those familiar to us from portraits of George III and Captain James Cook.  

In 1795, Parliament levied a tax on wig and hair powder of one guinea a year.  The wigs of this era required continuous care, including powdering, and the tax was a considerable additional expense. Within about 5 years of the tax, the wig was dead as a fashion item.  

However, the practice of wig wearing continued in the courts, with crusty judges unwilling to follow the dandy-ish turn of Regency fashion.  Counsel continued to wear wigs when appearing before wigged judges, but not outside of court.  Perhaps the custom would have eventually expired, had it not been for the ingenuity of Humphrey Ravenscroft, inventor of a forensic wig made of whitish-grey horsehair that did not need frizzing, curling, perfuming or powdering.  It required virtually no upkeep and was odourless.   The tax-free wig must have appealed to the Bar.  It, as all the lawyers here will know, became the most popular wig.

Ravenscroft guaranteed the reliability of his wigs in a letter to the legal profession on the 1st January 1835 in these terms:

The Patentee…will guarantee that the Hair of the Full-Bottom Wig shall retain the same uniformity of curl all over, so long as they can possibly be worn and dressed; …  and that what is of infinite advantage, they will not in the slightest degree oppose the organ of hearing.

The firm Ede & Ravenscroft still manufacture and sell Humphrey’s design, although it is long out of patent, from their premises at 93 Chancery Lane, London.  The present firm is the result of a merger in 1902 of the wig-maker Ravenscroft with the tailoring business of Joseph Ede.  Ede’s firm was no arriviste either, it had made the coronation robes for their Majesties King William III and Queen Mary II in 1689.  

The firm keeps a record of the wigs it makes for judges and Counsel.  We have included in the exhibition, copies of an extract recording the purchase by Arthur Feez KC of his full bottom wig in 1907, also in the exhibition. 

The wig of former Queensland Premier and Attorney-General the Hon T J Ryan KC, also featured in the exhibition, is a Ravenscroft wig.  This item has been very generously lent to the exhibition by Mr David Jackson QC of Sydney, who acquired the wig from former Chief Justice Sir Mostyn Hanger in 1976, shortly after taking silk.  The wig tin bears shipping labels, perhaps from Ryan’s trip to the Privy Council in 1919 to appear with Sir John Simon KC36 before Viscount Haldane in the successful defence of the validity of the Queensland 

Meat Supply for Imperial Uses Act 1914.37

New Courts, new places, new traditions

Traditions take root and grow in particular settings and circumstances.  They tend – like the Common Law – to evolve slowly and in careful, almost imperceptible, increments.   It is no surprise then that with the arrival of the English legal system to the Australian Colonies that the traditions would change. 

South Australia’s first judge, Sir Charles Cooper, arrived in Adelaide in 1839 and until 1850 was the only judge in the Province.  He was a member of Inner Temple, had been called to the Bar in 1827 and practiced on the Oxford circuit until Colonial appointment.  He would have been used to wearing the stuff robe and short wig of Counsel.  

However, in court in South Australia, Justice Cooper chose to wear the black jacket and white bands of a member of the bar, but no wig or gown.  At that time, most of the legal practitioners in the Province of South Australia had been trained as attorneys or solicitors in Great Britain.  They were not members of any of the Inns of Court.  They had no wigs or gowns, no right to wear them and perhaps nowhere to purchase them in Australia.

In May 1846, two English barristers appeared before Justice Cooper, in wigs and gowns.  When they did so, his Honour told them:

If anyone is justified in wearing a wig, it is myself; for in summer I am tormented with the flies settling on my bare head. But I fear that, if I were to adopt it, I should be still more fatigued than I am already by the long sittings which I frequently have to endure.

Justice Cooper’s view of appropriate court attire may be gauged from a rule of court he made in 1850 specifying that:

the costume of the gentlemen attending the Court should be, as heretofore, a black coat and waistcoat, a white neckcloth and bands.  

So, it seems, there was to be no wigs and no gowns.

Later that year, South Australia’s second judge, Dr George Crawford, arrived from Ireland, a member of the Dublin Bar.  In August 1850, his Honour presided at his first criminal sessions, doing so in his wig and gown.  In South Australia, wigs and gowns have been worn by counsel ever since, or at least in the case of wigs until very recently.   The judges continued to wear plain black gowns for all cases, criminal and civil.

About 25 years after the advent of Dr Crawford, Sir Samuel Way38 would shake things up again.  Sir Samuel had been admitted to the South Australian Bar in 1861. During a trip to England in 1869-1870 he rather took to London’s legal institutions and traditions.  Returning to Adelaide, he took silk in 1871 and ordered a silk gown, waistcoat, knee-

breeches, black stockings and a pair of shoes with silver buckles, all from London, telling the tailor: “I could get them in Melbourne, but prefer your work”.

In 1876, Sir Samuel became Chief Justice of South Australia and set out about remodelling the Supreme Court on the High Court of Judicature.  Within a year, the South Australian Register reported:

The forms of the judicial tribunals of the mother-country are being gradually introduced into the Courts of this Colony.  The latest innovation on previous practice is the wearing of the time-honoured distinctive costumes by some of the Judges.  The Chief Justice, in presiding at the libel action in the Supreme Court, appeared in the scarlet robes trimmed with ermine that has been for centuries the dress worn by judges when presiding in criminal sessions.39

Different robes for different sittings were introduced.  Over 130 years later there is no sign of change on that front.40 But in 2005, 155 years after Justice Crawford donned his wig, judges ceased wearing them in civil cases in South Australia.

There were upheavals too in early New South Wales.

Perhaps unsurprisingly, there were few working professionals in New South Wales in its early Colonial days.  The first legal representatives who appeared in court were either military officers or lawyers who had been convicted and transported for felonies and granted tickets of leave. 

One of these, George Crossley, had completed articles and been admitted as an attorney and solicitor in 1771.  After 24 years in practice in Adelphi Terrace, Westminster, he was charged with forging the will of a clergyman.  An unsubstantiated story is that Crossley placed a fly in the mouth of the testator (so there could be no denial of life in the body) before tracing the signature with the dead man’s hand.  The prosecution, relying upon the evidence of an accomplice, failed.  However, within months Crossley was called upon to answer charges of professional malpractice.  He swore an affidavit to answer the charges, but the court did not find it credible.  He was charged and convicted of perjury.  After an unsuccessful appeal, he was sentenced to the pillory and transportation for seven years.  He arrived in Sydney in July 1799.  Crossley obtained a conditional pardon in June 1801 and, despite his antecedents, began to practice as an attorney in Sydney in 1803. He was consulted by Governor Bligh on the day of his arrest in the Rum Rebellion.  The rebels tried Crossley for having practised as an attorney after a conviction for perjury.41 He was found guilty and sentenced to be transported to the Coal River for seven years. When Governor Lachlan Macquarie arrived Crossley was released and successfully sued the rebels for damages for trespass and false imprisonment, obtaining a verdict of £500. 

In July 1813, the Court of the Judge-Advocate admitted Crossley and a former Irish attorney, George Chartres, as “agents” to act in civil proceedings, but not as solicitors or

attorneys.42 Chartres had been convicted of fraud in 1810 and sentenced to seven years transportation.

Early Governors, including Lachlan Macquarie, approved of the appearance of former convict attorneys in court representing clients.43

Not so Justice Jeffrey Bent,44 who arrived in Sydney in July 1814 with a commission as a judge of the new Supreme Court of Civil Jurisdiction.  He insisted that the court would not sit until there were non-convict lawyers available to plead on behalf of their clients.45 On the judge’s recommendation, the Governor commissioned two English lawyers, as “stipendiary solicitors” to meet the Judge’s demand.  William Moore,46 a solicitor, arrived in January 1815.  On 11 May 1815, he was admitted to the courts as the first free solicitor in the colony.  His counterpart Frederick Garling,47 however, was delayed when his ship was captured and plundered by an American privateer off the coast of Madeira.  He did not make landfall in Sydney until August 1815.  Garling was admitted as the second solicitor of the Supreme Court of New South Wales.

The relief to civil parties did not last long.  In November 1815, Judge Bent’s brother, Ellis Bent, who had been deputy judge advocate, died on 10 November 1815.  A month later, Governor Macquarie appointed Garling to act in the vacant office.  This left only one free solicitor practising in the colony.  Justice Bent refused to sit.48 The Court did not sit until 1817, when Bent’s replacement, Barron Field, arrived to take his place (Bent having been recalled).

Queensland seems in large part to avoided controversies of this kind.  From very early times counsel and solicitors, without prior convictions, were resident or travelled here to appear in and conduct cases.

Finally, I wanted to point out the bags that we have in the exhibition. The history of these coloured bags is not free from the odd obscurity.

It would seem that “in the days of Queen Anne” and until the 1820’s “a green bag was de rigueur at the Bar”.  However, green bags acquired such unpopularity after the “trial” of Queen Caroline in the House of Lords, in which allegedly incriminating evidence was produced from a green bag.  It remains a custom in England that judges use green bags.

It appears that at one time red, purple and blue bags were the special privilege of the 

Leaders of the Bar.49 It was regarded as a heinous offence for a junior to take a bag of any colour into Court unless it had been presented by a member of the inner Bar with whom the junior had appeared in some case.  It is the case that in the 18th century, King’s Counsel received a limited salary from the Crown, but had an annual allowance for paper, pens and purple bags.  According to Lord Campbell:

These they distributed among juniors who had made such progress as not to be able to carry their briefs conveniently in their hands.  All these salaries and perquisites were ruthlessly swept away in 1830…50  

It is now the custom that junior counsel may purchase blue cloth bags to carry their robes to court.  If a junior wins the good opinion of a silk in a case, the leader may present the junior with a red bag. 

There are two examples of red bags in the exhibition.   These are the bags carried by Queens Counsel, in this case by now the Hon Justice Susan Kiefel AC and the Hon Senator George Brandis QC.  There is also the blue bag of the Honourable Tom Shepherdson. 

In England, there has been a certain ceremony or procedure attending the presentation of a red bag.  The QC hands the bag to the senior clerk of chambers, who sends it by a junior clerk to the junior counsel’s chambers.  The junior clerk presents the bag with the QC’s compliments and is given a guinea for the trouble.  A pound of this perk is handed over to the senior clerk; the junior clerk having to be content with a shilling.51 Like much else, the decimalisation of currency has taken the gloss of these exchanges.  Handing over a one pound coin and 5 new pence doesn’t have the same glamour.

As James Brundage concluded in his study on the origins of the legal profession:

The legal professions, together with the universities, the papacy, the corporation, and constitutional government, are institutions that must rank among the most influential and most enduring creations of the thousand years that constituted the European Middle Ages.  They remain with us still.  Without them, the world as we know it would be a poorer, less interesting place.52

If bench and bar have retained some peculiarities of court dress and manner, it is a small price to pay for the common service they perform, and the texture they add to the fabric of our common public life.

 

 

Tom Bradley QC *

Footnotes

*    Barrister, Brisbane. This is the text of a paper delivered at the launch on 18 September 2014 of the Innocent Diversions: Australian Legal Fashion exhibition, hosted by the Supreme Court Library. Mr Bradley would like to acknowledge the significant contribution of Jonathan Horton of the Queensland Bar in the preparation of this paper.

  1. John Locke, Some Thoughts Concerning Education (1690).
  2. (1976) 134 CLR 495.
  3. At 505.
  4. At 506.
  5. At 519-520.
  6. At 536.
  7. (1976) 134 CLR at 531.
  8. At 534.
  9. At 506.
  10. 23 June 1980.
  11. 6 March 1984.
  12. 4 July 1984, in which Mrs Pearl Watson was killed.
  13. 15 April 1984.
  14. Practice Direction 2002/1 (27 May 2002).
  15. [1936] AC 177 at 198; [1935] All ER Rep 105 at 108.
  16. His Honour had to consider whether the “uniformity in the legal profession”, sought to be brought about by the Legal Profession Amendment (National Practising Certificates) Act 1996, had had the result that a very experienced NSW solicitor, who was to appear for an accused in the District Court, could do so in a bar jacket, robe, jabot and wig.
  17.   (unreported) NSWSC, 1 September 1998 ( BC9804579 at 5).
  18. In Victoria, the influence of Queen’s Inn and the Dublin Bar are also quite significant.
  19. Sir Robert Edgar Megarry FBA PC (1910-2006) was a High Court judge in the Chancery Division (1967-1976), Vice-Chancellor of the Chancery Division (1976-1981) and Vice-Chancellor of the Supreme Court (1982-1985).
  20. [1973] 1 Ch 323 at 330.
  21. Sir Lancelot Shadwell KB PC KC (1779-1850) was the last Vice Chancellor of England.  He was in the habit of bathing every day, whatever the weather, in one of the creeks of the Thames near Barn Elms, and while thus engaged is said to have granted an injunction on one occasion in the long vacation: Roget, History of the ‘Old Water Colour’ Society, 1891, ii. 210–11.
  22. Sir Samuel Thomas Evans GCB PC QC (1859-1918) was the last QC appointed by Queen Victoria.  He was appointed President of the Probate, Divorce and Admiralty Division of the High Court of Justice in March 1910.  He gained fame as President of the “Prize Court” during the First World War.   According to Almeric Fitzroy, “on appointment to the Presidency of the division, he hardly knew a ship's stem from its stern, and he therefore proceeded to take a trip to Gibraltar in a P&O liner and spent the whole time on the bridge, so as to familiarize himself with the terminology of the cases with which he would have to deal”: The Spectator, 5 June 1925, p 16.
  23. William Hargreaves-Mawdsley, A History of Legal Dress in Europe until the End of the Eighteenth Century (1963), p 51.
  24. The Thursday 40 days after Easter.
  25.   28 October.
  26. McPherson, Supreme Court of Queensland, p 66.
  27. The Hon. John Patrick Shanahan AO was a Judge (1972-1994) and then Chief Judge of the District Court of Queensland (1994-1999).
  28. Alexander Pulling, The Order of the Coif (1884) pp 223-224.
  29. James Derriman, Pageantry of the Law (1955) p 65.
  30. Derriman op cit p 35.
  31. Michaelmas Term (1607).
  32. Derriman at p 76.  The author refers to an early 17th century portrait depicting an attorney in a long gown of dark cloth with furred edges and sleeves, wearing linen cuffs, a waistcoat, breeches, stockings, square-toed shoes and a large coth cap with a wide brim “like a sou-wester.” 
  33. Practice Direction (Court Dress) (No 4) [2008] 1 WLR 257.
  34. The blonds and red heads missed out.
  35. The Hon Jack L Kelly CBE RDF QC was a Justice of the Supreme Court of Queensland (1973-1985) and Senior Puisne Judge (1985-1990).
  36. Sir John Allsebrook Simon, 1st Viscount Simon GCSI GCVO OBE PC (1873-1954) had been UK Solicitor General (1910-1913), Attorney General (1913-1915), Home Secretary (1915-1916, 1935-1937), Foreign Secretary (1931-1935), Chancellor of the Exchequer (1937-1940) and Lord Chancellor (1940-1945).
  37. Theodore v Duncan [1919] AC 696
  38. Sir Samuel James Way, 1st Baronet of Montefiore (1836-1916) was Attorney-General of South Australia (1875-1876) and Chief Justice of the Supreme Court of South Australia (1876-1916).  In 1897, Sir Samuel became the first Australian to be appointed to the Judicial Committee of the Privy Council.
  39. “The Judicial Ermine”, South Australian Register, Thursday 12 July 1877, p. 5.
  40.  John Emerson, Why are you wearing a wig? Law Society Bulletin of South Australia, November 2004.
  41. Contrary to the Act 12 Geo. I, c. 29.
  42. Their appearance may have been contrary to the decision in ex parte Brounsall (1778) 2 Cowp 830.
  43.  Bruce Kercher, ‘A Convict Conservative: George Crossley and the English Legal tradition’, Misplaced Traditions: British Lawyers, Colonial Peoples (ed) Rob McQueen & W Wesley Pue, Federation (1999).
  44.  Jeffrey Hart Bent (Trinity Hall Cambridge, Middle Temple) was the first Judge, appointed at age 33.  He later served as Chief Justice of Grenada, St Lucia and, finally, British Guiana.
  45. Historical Records of Australia, series 4, vol 1, p 114-117, Bent to Macquarie, 5 December 1814.
  46. William Henry Moore (1788-1854) was admitted as a solicitor of the three superior courts of Westminster in 1810, after serving articles with his father.
  47.  Frederick Garling (1775-1848) was an attorney of the Court of King’s Bench and a solicitor in the Court of Chancery until 1814. 
  48. Admission of Convict Attorneys [1815] NSWLR1.
  49. Christian, “A Short History of Solicitors” (1896).
  50. Lives of the Chief Justices (1849-51).
  51. Derriman, pp 39-40.
  52. The Medieval Origins of the Legal Profession, The University of Chicago Press, 2008, p. 492.

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