Until the mid-18th century, however, barristerial wig-wearing was a matter of general fashion rather than the creation of a uniform of the trade.
There were certainly no professional rules about the type of wig to be worn. As late as 1790, The Times reported on the wig of the future Lord Erskine: “Mr Erskine [QC’s] new-invented wig, which from its extraordinary size and magnitude, afforded to much entertainment on Saturday in Westminster Hall, put the judges perfectly out of countenance. Even Lord Kenyon, with all his gravity, could not look at it without smiling.” On the Bench, on the other hand, The Times had noted in 1788 that: “Lord Loughborough has the…nattiest wig that ever covered the head…of wisdom on a Bench of Justice.”
Romanticism with a capital “R” and Pitt’s hair-powder tax put paid to wigs worn generally in the late 18th century.
Bishops obtained royal permission to abandon wigs in 1832. Attorneys and solicitors had abandoned wearing wigs in the 1820s. Although the process is a little mysterious, they became the barrister’s distinct uniform at around the same time. Those who write with authority on the subject describe this as a coincidence. Almost contemporaneously, the 1822 Humphrey Ravenscroft patent (powderless) wig became de rigeur for barristers, and still is.
By 1844, the common law had recognised, or enforced, the position. Barristers were not to be heard in court without wigs and gown. The first recorded occasion seems to relate to a Mr Bodkin on a bail application “who happened to be in the court at that time but not in his wig and gown” in the case of R v Whitaker (1844) 8 JP Jo 390. As a result, he was “neither seen not heard” by Coleridge J. Fortunately—not least for Mr Whitaker—Mr Bodkin retired and having attired himself in his wig and gown returned into court and obtained bail for his client.
But the Bench was not uniformly in favour. In his Lives of the Chief Justices (1849) Lord Campbell asked, rhetorically, “Who would have supposed that this grotesque ornament, fit only for an African chief, would be considered indispensably necessary for the administration of justice in the middle of the 19th century?”
The popularity of wigs amongst barristers was far from universal. During the very hot summer of 1868, Wilde J allowed barristers to remove their wigs. Sir Robert Collier QC at the end of a contested probate hearing “drew attention to the innovation”. Wilde J responded that “he had set the example of leaving off the wig in consequence of the unprecedented heat of the weather, as he thought there were limits to human endurance”. To which Sir Robert “expressed a wish that this precedent might be generally followed, and hoped that the obsolete institution of the wig was coming to an end”. Sir Robert, or just possibly the court reporter, added that this was “a sentiment in which many members of the Bar heartily concur”. Sir Robert shortly afterwards became Attorney-General and a judge of Common Pleas but he then probably abandoned his stance: there is no evidence that barristers in his court were granted any indulgence.
There was judicial manoeuvring in 1922, just before the first woman was called to the Bar, for the headwear of a woman barrister to be a biretta—a square cap with three or four ridges or peaks—rather than a wig. But Mr Justice Darling and Mr Justice Horridge were outvoted by the nine other judges present. Women were to wear wigs “which shall completely cover and conceal the hair”.
Although the Bar and Bench had, it appears, reconciled itself to the wig, Parliament had not entirely. In 1948, the House of Commons took time out from inventing the NHS to debate a motion to include in the Criminal Justice Bill a clause prohibiting the wearing of wigs and gowns in court. The progressive cause was against them generally: when Gollancz published The Reform of the Law in 1951 under the editorship of Glanville Williams, it stated that: “we consider that judicial robes and the barrister’s wig and gown are now an anachronism which symbolises the old-fashioned outlook of the law, and that they ought to be abolished”.
The House of Commons (Standing Committee) debate was not perhaps of the highest quality. One MP inquired whether the mover of the clause would deprive “admirals of their three-cornered hats, or deprive generals of their epaulettes, or clergymen of their distinctive attire? He said nothing about nurses although I think we all agree that they look very pretty in their distinctive attire.” Another said: “If seeing a judge going through a side door, without a wig, a criminal might be likely to think that he looked like a wizened-up gargoyle, but on seeing him in his wig and gown he would realise the majesty of the law”. In the light of such arguments, the motion was defeated by an overwhelming majority; one MP being “appalled by the unimaginative utilitarian clause” proposed.
And there it ended until 1992 and the Taylor consultations and, 16 years later, the debate continues. The Law Society has now successfully pressed for the right of solicitor advocates to wear wigs in court. Should solicitors really have been willing so readily to abandon an honourable and settled tradition of bare-headedness stretching back as far as the 1820s? A further process of consultation surely beckons.
Dan Stacey is a barrister at Hailsham Chambers