BAGS AND GOWNS.

On the stages of the Caroline theatres the lawyer is found with a green bag in his hand; the same is the case in the literature of Queen Anne's reign; and until a comparatively recent date green bags were generally carried in Westminster Hall and in provincial courts by the great body of legal practitioners. From Wycherley's 'Plain Dealer,' it appears that in the time of Charles II. angry clients were accustomed to revile their lawyers as 'green bag-carriers.' When the litigious Widow Blackacre upbraids the barrister who declines to argue for her, she exclaims—"Impertinent again, and ignorant to me! Gadsboddikins! you puny upstart in the law, to use me so, you green-bag carrier, you murderer of unfortunate causes, the clerk's ink is scarce off of your fingers." In the same drama, making much play with the green bag, Wycherley indicates the Widow Blackacre's quarrelsome disposition by decorating her with an enormous green reticule, and makes her son the law-student, stagger about the stage in a gown, and under a heavy burden of green bags.

So also in the time of Queen Anne, to say that a man intended to carry a green bag, was the same as saying that he meant to adopt the law as a profession. In Dr. Arbuthnot's 'History of John Bull,' the prevalence of the phrase is shown by the passage, "I am told, Cousin Diego, you are one of those that have undertaken to manage me, and that you have said you will carry a green bag yourself, rather than we shall make an end of our lawsuit. I'll teach them and you too to manage." It must, however, be borne in mind that in Queen Anne's time, green bags, like white bands, were as generally adopted by solicitors and attorneys, as by members of the bar. In his 'character of a pettifogger' the author of 'The London Spy' observes—"His learning is commonly as little as his honesty, and his conscience much larger than his green bag."

Some years have elapsed since green bags altogether disappeared from our courts of law; but the exact date of their disappearance has hitherto escaped the vigilance and research of Colonel Landman, 'Causidicus,' and other writers who in the pages of that useful and very entertaining publication, Notes and Queries, have asked for information on that point and kindred questions. Evidence sets aside the suggestion that the color of the lawyer's bag was changed from green to red because the proceedings at Queen Caroline's trial rendered green bags odious to the public, and even dangerous to their bearers; for it is a matter of certainty that the leaders of the Chancery and Common Law bars carried red bags at a time considerably anterior to the inquiry into the queen's conduct.

In a letter addressed to the editor of Notes and Queries, a writer who signs himself 'Causidicus,' observes—"When I entered the profession (about fifty years ago) no junior barrister presumed to carry a bag in the Court of Chancery, unless one had been presented to him by a King's Counsel; who, when a junior was advancing in practice, took an opportunity of complimenting him on his increase of business, and giving him his own bag to carry home his papers. It was then a distinction to carry a bag, and a proof that a junior was rising in his profession. I do not know whether the custom prevailed in other courts." From this it appears that fifty years since the bag was an honorable distinction at the Chancery bar, giving its bearer some such professional status as that which is conferred by 'silk' in these days when Queen's Counsel are numerous.

The same professional usage seems to have prevailed at the Common Law bar more than eighty years ago; for in 1780, when Edward Law joined the Northern Circuit, and forthwith received a large number of briefs, he was complimented by Wallace on his success, and presented with a bag. Lord Campbell asserts that no case had ever before occurred where a junior won the distinction of a bag during the course of his first circuit. There is no record of the date when members of the junior bar received permission to carry bags according to their own pleasure; it is even matter of doubt whether the permission was ever expressly accorded by the leaders of the profession—or whether the old restrictive usage died a gradual and unnoticed death. The present writer, however, is assured that at the Chancery bar, long after all juniors were allowed to carry bags, etiquette forbade them to adopt bags of the same color as those carried by their leaders. An eminent Queen's Counsel, who is a member of that bar, remembers that when he first donned a stuff gown, he, like all Chancery jurors, had a purple bag—whereas the wearers of silk at the same period, without exception, carried red bags.

Before a complete and satisfactory account can be given of the use of bags by lawyers, as badges of honor and marks of distinction, answers must be found for several questions which at present remain open to discussion. So late as Queen Anne's reign, lawyers of the lowest standing, whether advocates or attorneys, were permitted to carry bags;—a right which the junior bar appears to have lost when Edward Law joined the Northern Circuit. At what date between Queen Anne's day and 1780 (the year in which Lord Ellenborough made his dÉbut in the North), was this change effected? Was the change gradual or sudden? To what cause was it due? Again, is it possible that Lord Campbell and Causidicus wrote under a misapprehension, when they gave testimony concerning the usages of the bar with regard to bags, at the close of the last and the beginning of the present century? The memory of the distinguished Queen's Counsel, to whom allusion is made in the preceding paragraph, is quite clear that in his student days Chancery jurors were forbidden by etiquette to carry red bags, but were permitted to carry blue bags; and he is strongly of opinion that the restriction, to which Lord Campbell and Causidicus draw attention, did not apply at any time to blue bags, but only concerned red bags, which, so late as thirty years since, unquestionably were the distinguishing marks of men in leading Chancery practice. Perhaps legal readers of this chapter will favor the writer with further information on this not highly important, but still not altogether uninteresting subject.

The liberality which for the last five and-twenty years has marked the distribution of 'silk' to rising members of the bar, and the ease with which all fairly successful advocates may obtain the rank of Queen's Counsel, enable lawyers of the present generation to smile at a rule which defined a man's professional position by the color of his bag, instead of the texture of his gown; but in times when 'silk' was given to comparatively few members of the bar, and when that distinction was most unfairly withheld from the brightest ornaments of their profession, if their political opinions displeased the 'party in power,' it was natural and reasonable in the bar to institute for themselves an 'order of merit'—to which deserving candidates could obtain admission without reference to the prejudices of a Chancellor or the whims of a clique.

At present the sovereign's counsel learned in the law constitute a distinct order of the profession; but until the reign of William IV. they were merely a handful of court favorites. In most cases they were sound lawyers in full employment; but the immediate cause of their elevation was almost always some political consideration—and sometimes the lucky wearer of a silk gown had won the right to put K.C. or Q.C. after his name by base compliance with ministerial power. That our earlier King's Counsel were not created from the purest motives or for the most honorable purposes will be readily admitted by the reader who reflects that 'silk gowns' are a legal species, for which the nation is indebted to the Stuarts. For all practical purposes Francis Bacon was a Q.C. during the reign of Queen Elizabeth. He enjoyed peculiar and distinctive status as a barrister, being consulted on legal matters by the Queen, although he held no place that in familiar parlance would entitle him to rank with her Crown Lawyers; and his biographers have agreed to call him Elizabeth's counsellor learned in the law. But a Q.C. holding his office by patent—that is to say, a Q.C. as that term is understood at the present time—Francis Bacon never was. On the accession, however, of James I., he received his formal appointment of K.C., the new monarch having seen fit to recognise the lawyer's claim to be regarded as a 'special counsel,' or 'learned counsel extraordinary.' Another barrister of the same period who obtained the same distinction was Sir Henry Montague, who, in a patent granted in 1608 to the two Temples, is styled "one of our counsel learned in the law." Thus planted, the institution of monarch's special counsel was for many generations a tree of slow growth. Until George III.'s reign the number of monarch's counsel, living and practising at the same time, was never large; and throughout the long period of that king's rule the fraternity of K.C. never assumed them agnitude and character of a professional order. It is uncertain what was the greatest number of contemporaneous K.C.'s during the Stuart dynasty; but there is no doubt that from the arrival of James I. to the flight of James II. there was no period when the K.C.'s at all approached the sergeants in name and influence. In Rymer's 'F[oe]dera' mention is made of four barristers who were appointed counsellors to Charles I., one of whom, Sir John Finch, in a patent of precedence is designated "King's Counsel;" but it is not improbable that the royal martyr had other special counsellors whose names have not been recorded. At different times of Charles II.'s reign, there were created some seventeen K.C.'s, and seven times that number of sergeants. James II. made ten K.C.'s; William and Mary appointed eleven special counsellors; and the number of Q.C.'s appointed by Anne was ten. The names of George I.'s learned counsel are not recorded; the list of George II.'s K.C.'s, together with barristers holding patents of precedence, comprise thirty names; George III. throughout his long tenure of the crown, gave 'silk' with or without the title of K.C., to ninety-three barristers; George IV. to twenty-six; whereas the list of William IV.'s appointments comprised sixty-five names, and the present queen has conferred the rank of Q.C. on about two hundred advocates—the law-list for 1865 mentioning one hundred and thirty-seven barristers who are Q.C.'s, or holders of patents of precedence; and only twenty-eight sergeants-at-law, not sitting as judges in any of the supreme courts. The diminution in the numbers of the sergeants is due partly to the loss of their old monopoly of business in the Common Pleas, and partly—some say chiefly—to the profuseness with which silk gowns, with Q.C. rank attached, have been thrown to the bar since the passing of the Reform Bill.

Under the old system when 'silk' was less bountifully bestowed, eminent barristers not only led their circuits in stuff; but, after holding office as legal advisers to the crown and wearing silk gowns whilst they so acted with their political friends, they sometimes resumed their stuff gowns and places 'outside the bar,' on descending from official eminence. When Charles York in 1763 resigned the post of Attorney General, he returned to his old place in court without the bar, clad in the black bombazine of an ordinary barrister, whereas during his tenure of office he had worn silk and sat within the bar. In the same manner when Dunning resigned the Solicitor Generalship in 1770, he reappeared in the Court of King's Bench, attired in stuff, and took his place without the bar; but as soon as he had made his first motion, he was addressed by Lord Mansfield, who with characteristic courtesy informed him that he should take precedence in that court before all members of the bar, whatever might be their standing, with the exception of King's Counsel, Sergeants, and the Recorder of London. On joining the Northern Circuit in 1780, Edward Law found Wallace and Lee leading in silk, and twenty years later he and Jemmy Park were the K.C.'s of the same district; Of course the circuit was not without wearers of the coif, one of its learned sergeants being Cockell, who, before Law obtained the leading place, was known as 'the Almighty of the North;' and whose success, achieved in spite of an almost total ignorance of legal science, was long quoted to show that though knowledge is power, power may be won without knowledge.

From pure dislike of the thought that younger men should follow closely or at a distance in his steps to the highest eminences of legal success, Lord Eldon was disgracefully stingy in bestowing honors on rising barristers who belonged to his own party, but his injustice and downright oppression to brilliant advocates in the Whig ranks merit the warmest expressions of disapproval and contempt. The most notorious sufferers from his rancorous intolerance were Henry Brougham and Mr. Denman, who, having worn silk gowns as Queen Caroline's Attorney General and Solicitor General, were reduced to stuff attire on that wretched lady's death.

It is worthy of notice that in old time, when silk gowns were few, their wearers were sometimes very young men. From the days of Francis North, who was made K.C. before he was a barrister for seven full years' standing, down to the days of Eldon, who obtained silk after seven years' service in stuff, instances could be cited of the rapidity with which lucky youngsters rose to the honors of silk, whilst hard-worked veterans were to the last kept outside the bar. Thurlow was called to the bar in November, 1754, and donned silk in December, 1761. Six years had now elapsed since his call to the English bar, when Alexander Wedderburn was entitled to put the initials K.C. after his name, and wrote to his mother in Scotland, "I can't very well explain to you the nature of my preferment, but it is what most people at the bar are very desirous of, and yet most people run a hazard of losing money by it. I can scarcely expect any advantage from it for some time equal to what I give up; and, notwithstanding, I am extremely happy, and esteem myself very fortunate in having obtained it." Erskine's silk was won with even greater speed, for he was invited within the bar, but his silk gown came to him with a patent of precedence, giving him the status without the title of a King's Counsel.

Bar mourning is no longer a feature of legal costume in England. On the death of Charles II. members of the bar donned gowns indicative of their grief for the national loss, and they continued, either universally or in a large number of cases, to wear these woful habiliments till 1697, when Chief Justice Holt ordered all barristers practising in his court to appear "in their proper gowns and not in mourning ones"—an order which, according to Narcissus Luttrell, compelled the bar to spend £15 per man. From this it may be inferred that (regard being had to change in value of money) a bar-gown at the close of the seventeenth century cost about ten times as much as it does at the present time.