Wigs and Gowns

Since 1992 the ‘Bullfry’ column has been published in the NSW Association’s Bar News. This sardonic but amusing commentary by the fictional (and now ageing) Sydney junior barrister, Jack Bullfry, has descended – often in parody –  to a raft of issues of life at the bar. It is authored former practising barrister Lee Aitken, now in semi-retirement after a long period of legal teaching, including at the University of Queensland. Later this year there will be published a 30 year illustrated collection of Bullfry. Hearsay – with the permission of the NSW Association and Mr Aitken-publishes below  a 2020 iteration of Bullfry concerning court dress. Such topic rears its head with increasing frequency. As members are aware, in Queensland wigs and gowns are not worn in the Applications or duty Courts (all jurisdictions), (the expanding) Commercial Courts, Industrial Court and all commissions and tribunals (state and federal), and wigs are not worn in the High Court, Court of Appeal, Federal Court, Family Court (both divisions) and Magistrates Court. Bullfry, amid amusing treatment, makes some perceptive comments. To contrast modern mores, we preface such article with an extract from an article published in 1974, authored by former High Court justice the Hon Sir Victor Windeyer, ‘Of Robes and Gowns and other Things’ (1974) 48 Australian Law Journal 394 at 403:

Robes and gowns have for centuries been the distinctive dress of lawyers–not only in courts of common law, but also in varying patterns in countries of the civil law. They are an accompaniment of a heritage of customs and culture that is part of the civilisation of Europe. The adoption of any new form of fancy dress is not easily justified. But the abandonment of a traditional costume is a very different matter, and the onus lies heavily upon those, who suggest this, to justify their proposal.

Today a prejudice is sought to be justified by expediency apparently newly discovered. It is said that forensic garments overawe and terrify witnesses and lead to injustice. This, unproved as a generalisation, meets an opposing opinion; men, it is said, are more likely to speak the truth when they are sworn to do so, and required to answer in circumstances that are grave and stern, and may be for them awesome, than in conditions of easy informality and unconstraint.

Whatever view be taken on rational grounds, much current criticism of the dress of lawyers and of the ritual of court proceedings is bred of bias, vulgarly fashionable, against any official costume except, it seems, for such persons as policemen, postmen and railwaymen. Informality and familiarity are taken to be attributes of faith in democracy. Elegance of dress, speech or manners is thought to go ill with egality. However, if prejudices be put aside, it is well to remember that the legal profession, including the judges, has since its early days controlled its own affairs, made its own rules for, and exercised its own discipline over, its members. The observance of old forms and customs is not simply a conservative adherence to usage. It is more; for it is a manifestation of the continuity of the law of the land. The present is visibly linked with the past, as a firm base from which the development and reform of the law can proceed in response to new social needs. For, said Coke: “Assuredly out of the old fields must spring and grow the new corn.”

A hundred and more years ago Lord Wolseley, then Lieutenant-General Sir Garnet Wolseley, wrote a delightfully wise little book, The Soldier’s Pocket Book. In it he said: “No man who knew soldiers or their peculiar way of thinking, or who was acquainted with the many little trifles that go to make up esprit de corps, and that form as it were a link between it and discipline, would ever deprive a soldier of any peculiarity that he prided himself on, without having some overpowering reasons for doing so.”

The writer, having known both soldiers and lawyers, would apply that to lawyers too.

Circa Fifty years later, Bullfry wrote:

Bullfry asks a sartorial question

The King-Emperor, George V, once had occasion to reprove an ageing Earl of Birkenhead. The latter had arrived in a hurry for a Cabinet meeting wearing a soft, slouch, hat and “grey, rather bucolic suit”, “yet he had once been famous for his dandyism”.1 The “sinister deviations” in Birkenhead’s Bohemian attire “clashed with the rigid conventionality” of his monarch. He should have been in the morning dress (and silk top hat) which was then de rigueur.2 He wrote with his customary brio to the King’s Private Secretary, “… in days far more formal than ours it was never the custom to appraise the adequacy or dignity of Lord Chancellors in terms of head-gear” – the King observed: “I consider this a very rude letter”!

Bullfry, sad to relate, had noticed a similar indifference creeping into his own costumery – even to the stage, like the Duke of Monmouth, of sometimes, on the weekend, not condescending to the artifice of toilette. In days past, Bullfry had rejoiced in donning his bespoke Bar jacket – lately, one button hanging by a forlorn thread, it barely fitted him. What now of the tailor-made striped Bar shirts, the “Tom Hughes” morning suit trousers, the starched collars and their studs? All gone, as a sartorial lassitude enveloped him. At a certain stage, a circumspect view of the wardrobe revealed enough suits to last a lifetime (or at least the end of a professional career) – save, of course, the understated subfusc for funerals. And in this, he was not alone.

Bullfry had had a frightening sartorial experience in Phillip Street – looming up out of the autumnal mist of an early morn, a retired, distinguished, jurist had crossed Bullfry’s path – he was indifferently dressed in a battered, greying, overcoat, but that was not the worst of it – oh no! to Bullfry’s horror, his balding pate was surmounted by a beanie! The late David Hunt J had always affected a Homburg; even now, a retired Peter Graham QC would courteously doff his hat to an acquaintance on Macquarie Street – that was surely the style that was appropriate for holders of high judicial office; and surely the Strand Arcade could still supply an appropriate headpiece?)

This was part of a sad, modern, trend, thought Bullfry. Once upon a time, to dress to appear in Court required considerable time and effort.3 In making the effort, as is the case with putting on any special uniform, the wearer was reminded of the important tasks and obligations about to be undertaken. There was no question of slipping into a “Onesie” which artfully combined Bar jacket, gown, and morning suit trousers. Each article of apparel required detailed attention. Edmund Spenser4 as long ago as 1598 had made the point elegantly:

“Men’s apparel is commonly made according to their conditions, and their conditions are oftentimes governed by their garments, for a person that is gowned is, by his gown, put in mind of gravitie, and also restrained from lightness by the very unaptness of his weed …”.

Bullfry thought back to his time as a young solicitor. He had tried to raise the subject of the fees being charged by a leading Silk (now long deceased) as the latter stood in his boxers, just prior to putting on his morning suit trousers. The silk in deshabille was unabashed: “There is nothing I like discussing more than my fees”, he said with a broad smile, “whatever the time, or situation”.

Matters, so it might be contended by a purist, had only started to go wrong with the modern Bar when the jabot made its first appearance (which perhaps not coincidentally was when the law firms themselves began to permit a “casual Friday”). In older times, a shirt-neck with studs required a starch-collar, kept in its own box, around which starched bands were then tightly tied. It could often take 20 minutes to get ready for Court, which made things fraught when an urgent interlocutory application was in the offing. (This rule was subject to its own exceptions – on one occasion, just before Christmas, Bullfry had had to appear urgently before the Duty Judge with only a tired gown to conceal his summer attire, and thongs, beneath it).

Then, things changed. The old order was shaken and replaced. The jabot made its inelegant appearance.

Writing 60 years ago John Parris did note the problems the old dress style caused: “What is productive of a great deal of discomfort is that Victorian abomination, the wing collar. I was often tempted to appear in a stock [jabot] such as were worn by barristers before the starched collar was invented.”5

Why exactly is the jabot in favour? One vendor (with emphasis supplied) notes that a “quality cotton jabot is a quick, easy and convenient alternative to the traditional shirt and collar combination.” That is the very point! It is a little like court process now requiring everything to be “quick, cheap and just” despite the contradictions inherent in severally pursuing each of those goals at the same time.

It is the very fact that no time at all is required to prepare for Court by throwing a yellowing jabot (bearing here and there the reliquiae of several post-Court caffe lattes, and red wines) which undermines, psychologically, the perceived importance of appearing at all. The vendor of the jabot goes on to observe (surely with tongue in cheek) that “cleaning a jabot can be difficult …”! You can say that again.

And that raised a more general sartorial question. It is difficult to think of a good reason, in the height of an Australian summer, to wear anything at all but a well-tailored, light weight, lounge suit. The notion of wig, Bar jacket, and gown, when the ambient temperature in 35 degrees Centigrade, and the humidity hovers at 90%, was out of date at least two decades ago.

As to wigs, they were surely way past their time. Bullfry had two at his disposal. His favourite had belonged to the judge (now long deceased) to whom he had been an Associate in the Seventies. It had cost a small fortune to be restored to its former glory – it must have been worn by its original owner at least seventy years ago – but that is the thing with horse hair – properly pomaded, it can outlast several owners.

And did the exaggerated “costume” really help the public’s perception of the Bar as an up-to-date institution? It was said that in a criminal, or fraught family matter, the wig provided a certain anonymity to its wearer, as well as underscoring the importance, and dignity, of the process at hand. But that argument was severely undercut by the obvious point that magistrates dealt with serious crime all the time and did not need any such protection.

It was a sad fact that most laymen had no real idea what a barrister did, or when or why one should be deployed. The rigmarole of wig and gown were out of tune with modern times as well as being damnably uncomfortable to wear for more than half the year. Courts had slowly been recognising this as those forums in which full regalia was required quietly reduced in number. No more in the High or Federal Court – and what would happen when the latter tribunal started to exercise a mooted criminal jurisdiction? That would be a test of principle!

No, although he hated to admit it, the time for a “uniform” of wig and gown was past – the wearers of it despaired of it and the public gawped at it in the street. Was now, perhaps, the time to dispense with it altogether?

1 RFV Heuston, Lives of the Lord Chancellors (Oxford 1964) p 392.2 See Birkenhead, The Life of FE Smith (1959) p 394.3 For a full history of how wigs and gowns became the custom in court see Isabella Clark, “On the origin of forensic frippery: the evolution of common law legal attire” [2006] NZLawStuJ 11.4 Edmund Spenser, “View of the present state of Ireland: the dialogue between Eudoxus and Ireneus”.5 John Parris, Under my wig (1961) p 37.