Wigs, robes and gavels

“When a judge puts on his robes, he puts off his rela­tion to any; and becomes with­out pedigree.”

— Thomas Fuller, Holy State, 1642

“To this it must be added, that life in a wig is to a large class of peo­ple much more ter­ri­fy­ing and impres­sive than life with its own head of hair.”

— Charles Dick­ens in The Old Curios­ity Shop, 1841

Recall­ing bits of his role as Her­man Mun­ster, Fred Gwynne was the embod­i­ment of the movie judge in “My Cousin Vinny”: tall, impos­ing, for­mal and clad in a black robe. He insisted on fol­low­ing tra­di­tions, gaveled out of hear­ings and used the legal jar­gon we expect in our court­rooms. These tra­di­tions are drawn from var­i­ous sources and for var­i­ous reasons.

Most Amer­i­can judges wear black robes when pre­sid­ing over hear­ings. The tra­di­tion of wear­ing robes comes to us, as do many of our legal odd­i­ties, from the British legal sys­tem. But why did the British judges wear black robes?

To answer that ques­tion, one must think of the dress that mem­bers of the British aris­toc­racy are seen wear­ing in period movies or tele­vi­sion pro­grams. The wealthy wore expen­sive cloth­ing to show off their social sta­tus. British judges were, at that time, largely appointed by the Crown and cho­sen from the ranks of the upper crust and thus their attire was not meant to show off the fact that they were mem­bers of the judi­ciary but rather just to pro­claim their wealth and social status.

In 1635, the judges of West­min­ster issued the “Judges Rules” and for­mally estab­lished green and vio­let as stan­dard judi­cial col­ors. There is some evi­dence that it was upon the death of Queen Mary II in 1694 that judges all wore black to her funeral to show their mourn­ing and never returned to the more col­or­ful robes. Oth­ers argue that it was because of the death of Queen Anne in 1714. Either way, the black color of robes was stan­dard before the Amer­i­can Revolution.

If we adopted robes from the British, why then don’t Amer­i­can judges also wear pow­dered wigs? Indeed, for quite some time, Colo­nial judges did wear wigs. It was a nat­ural part of aris­toc­racy. They were expen­sive, they helped pre­vent head lice and they were a lot eas­ier on the eyes than a head of greasy hair. Three events, occur­ring close in time, helped to spell the end of wigs as a fash­ion neces­sity in Amer­ica. First, the British imposed a tax on hair pow­der that made wear­ing wigs even more expen­sive. Sec­ond, the Amer­i­can Rev­o­lu­tion led to a desire to break with many British tra­di­tions and wigs were among the rejected fads. In fact, there was quite a dis­agree­ment between John Adams and Thomas Jef­fer­son about whether any of the British tra­di­tions should be kept. Robes stayed, wigs didn’t.

To be frank, there’s very lit­tle gavel­ing in Amer­i­can courts any­more. I’ve had a gavel on the bench for 10 years and I think I’ve used it once. It is known that the word “gavel” orig­i­nally meant to pay a debt to a supe­rior. From that mean­ing came the words “gavelet” mean­ing a legal action to recover rent and “gavel­man” mean­ing a ten­ant who owed rent. The fact is that other than the gavel being a sym­bol of author­ity, its ori­gins are largely unknown. In 1992 an entire law review arti­cle was writ­ten at Emory Uni­ver­sity explor­ing the lack of infor­ma­tion about the ori­gins of gaveling.

Any­one tes­ti­fy­ing in court must first swear an oath to tell the truth. Almost uni­ver­sally, that oath is accom­pa­nied by the per­son rais­ing their right hand. It was the Romans who gave us this tra­di­tion, and not for any reli­gious or cer­e­mo­nial pur­pose. The Romans only wanted to know if the wit­ness had lied before. In ancient Rome, if you were con­victed of per­jury, the palm of your right hand was branded. Then, each time that you tried to tes­tify again, you would be asked to raise your right hand and upon dis­play­ing the brand, would not be per­mit­ted to testify.

For more infor­ma­tion on legal his­tory and curi­ous facts about the courts, visit the web site of the National Cen­ter for State Courts at ncsc.org.

David Hej­manowski is a Mag­is­trate and Court Admin­is­tra­tor at the Delaware County Juve­nile Court and a for­mer Assis­tant Pros­e­cut­ing Attor­ney. He owns a top hat, but not a pow­dered wig.

Posted by Dave Hejmanowski on Dec 6 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.