From the Ballymena Observer, 1951:
“Wearing of Caps in Courthouse
Judge Refers to Old Tradition
An incident in Ballymena Courthouse on Monday, during the Quarter Sessions, prompted Judge Begley KC to refer to a tradition peculiar to that Court. A man who was leaving the building, had just reached the flagged portion and put on his cap. A police officer requested him to remove it, which he did. His Honour interrupted the business to remark that there was a very old tradition which entitled people to wear their caps in that part of the Courthouse.
The police officer said he was unaware of that tradition. That must be the only courthouse in Ireland where such a tradition existed, he added.
Judge Begley – It is the only one so far as I know. I would like it to remain so long as this Courthouse is in its present condition.
His Honour’s last comment was occasioned by the lack of heating. He went on to say that he would sit for the purpose of the Crown business on Tuesday, but no longer unless there was an improvement in the hearing.”
Traditionally, no matter how cold the courtroom, men in court were only allowed to wear hats or caps with the specific permission of the presiding judge.
According to the Waterford News of 1868, Lord Chief Baron of the Exchequer for Ireland, Standish O’Grady, once refused permission to the freezing foreman of a jury to wear a hat, saying that, if his head was really cold, he could always borrow a wig from one of the barristers; the foreman demurred.
A man who refused to take off his hat in court could be ejected from the court, fined, or have his hat forcibly removed. Imprisonment for contempt of court was also a possibility. An amusing incident happened in Kerry in 1944 when a judge threatened a member of the public gallery with contempt for wearing his cap in court. When called before the bench it transpired that the ‘cap’ was nothing more or less than a crop of fuzzy brown hair mistaken in the distance of the room for a piece of headgear.
Along with their many other privileges, an exemption from wearing one’s hat in court was traditionally granted to peers as a matter of course. Willoughby Bertie, 4th Earl of Abingdon, plagued by legal problems, was given permission by Lord Kenyon LCJ to wear his hat in court in 1785. A gentleman passing as the Earl of Egremont is reputed to have retained his hat in Marlborough St Police Court in 1902 when answering a charge of being drunk and disorderly in Piccadilly. However, this may not be correct as there does not appear to have been an Earl of Egremont at the time. Perhaps a pretender?
A judge might perhaps allow someone suffering from a head injury to keep on their hat in court. Patrick Griffin, an elderly victim of assault, was allowed to wear a soft hat in the Northern Divisional Police Court in 1888 to hide the bandages upon his head, his injuries being very severe. Likewise, in 1913, a witness at the Dungannon Quarter Sessions was allowed to wear a cap in court to cover his mutilated ear.
Permission to wear one’s hat in court might also be granted in cold weather. Indeed, sometimes judges would make a point of allowing witnesses to keep on hats in order to draw attention to the chilly state of the courtroom in which they were sitting. This occurred at the Kanturk Quarter Sessions in 1924, when the Recorder said that the building was in a wholly unfit condition for court and, owing to the breeze passing through, anybody who desired to do so had authority to wear their hat.
If an elderly witness asked to keep their hat on because of the cold, it was probably unwise to argue with them. At Shankill District Court in 1928, an 87-year-old gentleman insisted on keeping his hat on because otherwise his head would get cold, as there was ‘little or no hair on it.’ Justice Reddin, despite muttering that the cold affected everyone, was wise enough not to pursue the point, and allowed the man to keep his hat on.
It was also sometimes necessary for an accused to model hats in court. In 1937 a man charged with theft before the Belfast Police Court wore his hat in court in a number of modes fashioned by a district inspector for identification purposes. The judge was not satisfied with the identification and the charge against the accused was dismissed.
Quakers had particular difficulty with the prohibition on hat-wearing in court, since it was an edict of their faith that their hats should be taken off to none other than the Supreme Being. Judges, who tended to regard themselves as the Supreme Being, at least so far as their courtroom was concerned, proved less than sympathetic to this view.
An incident occurred in 1849 when Mr Abraham Fisher, a member of the Society of Friends, appeared in Youghal Court wearing a hat with a ‘broad brim’ of more than ordinary dimensions. On the instructions of Mr Justice Ball, presiding, the bailiff removed the hat from Mr Fisher’s head. The ill-fated hat was then left hanging on the spike of the dock after Mr Fisher, refusing to accept it back, retired from court, enquiring sarcastically as to whether Judge Ball also wanted him to remove all his clothes.
Baron Bramwell, having initially rebuked a Quaker for refusing to take off his hat in court, subsequently issued an apology to the man concerned, stating that, having considered the matter, he felt that a man should act according to his conscience and that there was nothing intrinsically disgraceful about the wearing of hats in court, the practice of taking them off being only a matter of usage and practice. Not all judges agreed; Mr Justice Montague Smith, in Liverpool Crown Court in 1865, described the Quaker practice of refusing to remove one’s hat as discreditable to common sense.
At the Limerick Summer Assizes of 1876, Mr Joshua Jacob, again a member of the Society of Friends, was summarily ejected after refusing to take off his hat when serving as a juror. Judge Ball – once again the presiding judge – got more than he bargained for when Mr Jacob drew up and published an account of what had happened, a copy of which he addressed personally to every member of both Houses of Parliament, arguing that, as officers of the court were allowed to wear hats, he, as a higher officer of the court in his capacity as juror, should also have been entitled to do so.
In response to Mr Jacob’s campaign, the Irish Times remarked that “[w]e so no reason why the conscientious scruples of good men, so long as these do not offend morality or good taste, should not be respected. Friends are not obliged to swear in courts of law, and it really seems rather small of a judge to forcibly expel a respectable juror because, from conscientious scruples, he refuses to remove his hat.”
In 1907, a query was put to the Secretary of War as to whether a soldier should take off their head-dress in court. A reply was received from the Army Council that an officer or soldier should remove his head-dress in court when a judge or magistrate was present, save when on duty under arms with a party or escort. In 1915, Robert Killen, charged before the Belfast Magistrates with being an absentee from the 9th Battalion Royal Irish Rifles, claimed that as a soldier he was entitled to wear his cap in court. It was taken off him by the dock sergeant on the basis that he was not there on duty.
If a man took off his hat in court, he needed to keep a careful eye on its whereabouts, as the court bore no responsibility for its theft or loss. In 1828 a man sentenced in Green Street Courthouse, Dublin, to 12 months’ imprisonment for assault, complained that he had just lost his new hat in court, and requested remuneration. This application was promptly rejected by Judge Moore, who said that the accused should rather have expressed sorrow and repentance for his sin and the crime he had committed rather than be making an application for compensation.
During the Irish War of Independence and subsequently, the wearing of hats in court was adopted by those associated with Sinn Féin as part of a policy of refusal to acknowledge the courts’ jurisdiction. The Kildare Observer and Eastern County Advertiser disagreed with this practice, not because they disapproved of the motivation behind i,t but because they saw it as ‘emulating the example of those police minions of the law who wear hats in court.’ In March 1918 five young men, described by the Larne Times as ‘prominently identified with the Sinn Fein movement,’ were told ‘Hats off.’ When they refused to comply, a constable rushed forward and removed their head-gear.
In 1918, Father Cahill CC, present in Seaforde Magistrates’ Court for the trial of a man charged with leading the Drumness Sinn Féin pipers’ band in processional order without authority, asked why he should remove his cap when the police wore caps in court. He was told that he must do so or leave. In 1919, the Reverend Malachi Brennan CC was removed by the police when he refused to take off his hat at a Galway Crimes Court inquiry into charges of unlawful assembly at his parish hall.
The practice of defiant-hat-wearing for political reasons was still being engaged in as late as 1939, when a number of IRA men on trial in Carrick-on-Shannon had to have their hats and caps removed. Around this time, President of the Executive Council of the Irish Free State Eamon de Valera was asked in the Dáil whether persons wearing caps in court should be allowed to plead ‘not guilty,’ to which he replied that it was a matter for the court.
Two years earlier, an ‘eminent lawyer’ had told an Irish Press reporter, following the forced removal of a man who declined to remove his hat in court, that what was proper dress in court depended on the particular judge, who could not only order a man to take off his hat but, if he wished to do so, could also make him wear a hat or be committed for contempt. Fortunately, said the eminent lawyer, most judges were reasonable men.
Differences as to what was reasonable were evident in Portnockie Police Court in 1938, when the Clerk of the Court, in response to a solicitor calling attention to cap-wearers in court, remarked that ‘[t]his is a democratic age.’ Magistrate Bailie Geddes disagreed and said that gentlemen should always take off their caps and hats in court.
The prohibition on male hat-wearing in court has yet to be formally revoked, though tends to be enforced less often in an age of diminished hat-wearing. The type of hats removed against the will of their wearers have changed over time from the 18th century tricorne to the 1970s stetson removed in Carlow Circuit Court in 1971 from a man charged with robbery and violence. It is unclear whether the matching spurs on the accused’s boots were also removed as part of the same process.
The rules regarding the wearing of hats in court were precisely the opposite for women, who were not allowed in without them, and had to keep them on at all times save with judicial permission. This divergence in policy led to the famous joke about the judge who, having mistaken a woman wearing a sailor hat for a man, asked her to remove it, to which she retorted that she was no man and he in turn replied that he was clearly no judge.
In the King’s Bench Division in 1930, Mr Justice Roche directed an usher to tell a hatless girl handing in a document that, the next time she was to come into court, she was to come into court with a hat on her head. The girl blushed deeply and hurriedly placed on her head a brown felt hat of the close fitting type, presumably a cloche.
Mr Justice Roche’s colleague, Mr Justice Bateson, was liberal as regards the necessity for female head-coverings; when a female witness in a divorce trial asked if she could remove her hat to hear better when giving evidence, he eagerly assented, saying that he felt all ladies should take off their hats in court.
Matters came to – well, a head – in 1939 when Mr EG Hemmerde KC, Recorder of Liverpool, publicly declared that there was no historical or scriptural ground for insisting that women should wear hats in court, describing it as irksome and unnecessary. However, this was just one judge’s policy, and many still required hats, and indeed also required women to unbutton their gloves when holding the testament, though Lord Darling was once so tired of waiting till a woman had unbuttoned her glove that he told her to keep it on.
In 1934, a ‘pretty, well-dressed girl’ charged with theft, who admitted taking a fur coat from a dance hall as a dare and then wearing it to a dance in Dublin when she could not find the owner, was told by Judge Reddin that, out of respect, she should have worn a hat in court. Speaking about the accused in the third person, the judge said ‘it may be that she wishes to display her coiffure but I would like to remind her that there is a lot of brass in many a seeming platinum blonde. Pilfering is also becoming too prevalent.’ The girl escaped with a fine and the coat was restored to its owner.
The issue of mandatory female head-covering in court was resolved in England and Wales in 1942, when Sir Donald Somervell, Attorney-General, announced in the House of Commons that, in view of a certain change in social habits, the Lord Chancellor deemed it unnecessary to require compliance with the practice of requiring a woman to have her head covered in court. When asked if similar liberty should be given to men who wished to wear their hats in court the Attorney-General replied ‘that raises a very different question.’
This hat-wearing exemption, however, did not apply to Ireland, where the Irish Independent of September 18 1943 reported that a female witness in the Dublin District Court had been ordered by Judge Mangan to cover her head when taking the oath – a custom described by that newspaper as dating back to early Christian times and the edict of St Paul, in his Epistles to the Corinthians, that men praying should go with their heads uncovered and women with their heads covered. The Independent made clear that, in supporting the policy, it was not suggesting that hatless women were less likely to tell the truth, but that it did feel that covering the head in court tended to impress on them the solemnity of the occasion.
Northern Ireland judges and magistrates also persisted in requiring women appearing in court to wear hats for many years after the Lord Chancellor’s 1942 ruling. In 1968 ,Justice CM Maguire at Newcastle West Court told a woman witness that she was supposed to wear a hat in court. In 1960, Mr TD Elliott of Brookeborough Petty Sessions Court was gracious enough to allow a woman wearing a hat to remain in court, but gave her a severe warning for future occasions.
It goes without saying that no Irish judge today would require a woman to cover her head n court – though a news report on the 2006 retirement of Kilkenny Court Clerk Bernard Byrne noted that old notices requiring the wearing of hats still remained in place in some courthouses in that county.
That is not to say that the dress of female – and indeed male- witnesses does not provoke judicial comment. In 1943, Colonel CCO Whitely, chairman of Croydon (Surrey) Magistrates Court, rebuked a ‘girl witness’ for appearing in slacks, saying that it was an insult to the court. He subsequently delivered a formal statement saying that a female fellow magistrate had thanked him for making this point and that he was certain that, if one of the High Court judges saw a young girl wearing slacks, they would turn her out of court.
In 1937, a defendant in a civil case in Kildare came into court wearing an open necked shirt during an early August heatwave, to be told by a horrified unnamed judge that ‘this was not a bathing beach but a courthouse’ and that, out of respect for the court, the defendant should have buttoned his shirt and put on a tie. In response, the Derry Journal remarked that many men ‘had no tie to put on and ne’er a button on their shirts’ and ‘what this Justice has got to learn is that the ways as well as the days of the landed ascendancy are gone and he must come down out of the clouds and realise that truth can proceed from the throat that is left healthily open as well as from one that is incarcerated in a three inch standing-up collar and that respect is not measurable by the position of the buttons on one shirt.’
Skimpy warm-weather dress may however still provoke chastisement from Irish judges. In 2006 Judge Martin objected to two witnesses before her in Kilkenny wearing ‘muscle t-shirts,’ requiring them to borrow a jacket or change into polo shirts before giving evidence.
The question of judges or barristers wearing headgear (other than the wig) or skimpy attire in court usually does not arise because of the requirement of robing – although it remains an issue which could potentially rear its head during vacation sittings. In the 18th century, when legal costume was not required for Assizes outside Dublin, judges and lawyers commonly wore tricorne hats in court.
There is of course one very famous item of headgear which a judge has occasionally substituted for their wig in the past, and that is the black cap of silk and poplin which was placed on their head when pronouncing sentence of death. In England, the placing of the black cap was done by the chaplain of the court, in Ireland, by the judge himself – the reason for the difference is unclear. Perhaps we had fewer chaplains?
In 1943, former judge Henry Hanna regretted the cessation of the ‘black cap’ practice by Irish Free State judges and argued for a definite ruling on the point, saying that covering one’s head with a black cloth or hood was a long-standing and solemn judicial procedure and a sign of mourning for the life being forfeited. No ruling issued, and the vexed question of whether or not to put on the black cap continued until rendered moot in Ireland by the abolition of capital punishment in 1964 for most offences including ordinary murder (the death penalty was abolished for all offences in 1990).
Compulsory female head-covering in court, black caps, even the ban on slacks – all gone! But what about a witness – male or female – who insists on wearing a beanie, a trilby, a cloche or a leghorn in court? Would a judge require them to take it off, or, perhaps more wisely, decide to ignore it? It would be interesting to know!