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.
CHAPTER XXIV.
HATS.
Not less famous in history than Bradshaw's broad-brimmed hat, nor less graceful than Shaftesbury's jaunty beaver, nor less memorable than the sailor's tarpaulin, under cover of which Jeffreys slunk into the Red Cow, Wapping, nor less striking than the black cap still worn by Justice in her sternest mood, nor less fanciful than the cocked hat which covered Wedderburn's powdered hair when he daily paced the High Street of Edinburgh with his hands in a muff—was the white hat which an illustrious Templar invented at an early date of the eighteenth century. Beau Brummel's original mind taught the human species to starch their white cravats; Richard Nash, having surmounted the invidious bar of plebeian birth and raised himself upon opposing circumstances to the throne of Bath, produced a white hat. To which of these great men society owes the heavier debt of gratitude thoughtful historians cannot agree; but even envious detraction admits that they deserve high rank amongst the benefactors of mankind. Brummel was a soldier; but Law proudly claims as her own the parent of the pale and spotless chapeau.
About lawyers' cocked hats a capital volume might be written, that should contain no better story than the one which is told of Ned Thurlow's discomfiture in 1788, when he was playing a trickster's game with his friends and foes. Windsor Castle just then contained three distinct centres of public interest—the mad king in the hands of his keepers; on the one side of the impotent monarch the Prince of Wales waiting impatiently for the Regency; on the other side, the queen with equal impatience longing for her husband's recovery. The prince and his mother both had apartments in the castle, her majesty's quarters being the place of meeting for the Tory ministers, whilst the prince's apartments were thrown open to the select leaders of the Whig expectants. Of course the two coteries kept jealously apart; but Thurlow, who wished to be still Lord Chancellor, "whatever king might reign," was in private communication with the prince's friends. With furtive steps he passed from the queen's room (where he had a minute before been assuring the ministers that he would be faithful to the king's adherents), and made clandestine way to the apartment where Sheridan and Payne were meditating on the advantages of a regency without restriction. On leaving the prince, the wary lawyer used to steal into the king's chamber, and seek guidance or encouragement from the madman's restless eyes. Was the malady curable? If curable, how long a time would elapse before the return of reason? These were the questions which the Chancellor put to himself, as he debated whether he should break with the Tories and go over to the Whigs. Through the action of the patient's disease, the most delicate part of the lawyer's occupation was gone; and having no longer a king's conscience to keep, he did not care, by way of diversion—to keep his own.