“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, The Old Curiosity Shop, 1841
One of the first columns I wrote for The Gazette more than twelve years ago examined the origins of legal traditions in America. I still occasionally get questions about that column or requests to reprint the information in it. One such request came this past week, and so it seemed a good time to look back at why we do some of the things we do.
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 almost fifteen years and I rarely use it. 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, again, the British who gave us this tradition, and not for any religious or ceremonial purpose.
British judges only wanted to know if the witness had lied before. According to the proceedings of Old Bailey in London, if you were convicted of certain offenses, including perjury, the palm or thumb 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 www.ncsc.org.
David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.