the proceeding in question to a single judge or to one or more commissioners ('commissaires-enquêteurs),345 a number of which latter were attached to most courts down to the time of the Revolution.346 In Spain, if we may judge by a series of ordinances contained in the 'Novisima Recopilacion,' the taking of witness-proof appears, from the 1400s to the 1700s, to have been largely entrusted to the 'escribanos,' or official clerks, known when acting in this capacity as 'escribanos-receptores.'347 Under the German common law procedure the delegation was either to one of the judges348 or to a commissioner ('Kommissar'),349 although here, as elsewhere, the court, itself, sometimes conducted the examination.350 In the Frederician procedure of Prussia, the judge especially charged with overseeing the preparation of the case, the "Instruent,"351 generally examined the witnesses.3 352 It may thus be said that from the late Middle Ages down to comparatively recent times the principle of mediacy held almost undisputed dominion in the Continental courts so far as concerns the reception of testimonial evidence. Today that dominion is lessened but still extensive, as witness the modern French 'enquête,' the examination by the judge-delegate in the Italian procedure and the theoretically exceptional hearing of witnesses by a single judge of the German collegial tribunal.358

As regards documentary evidence it is obvious that there has been little room for the principle of mediacy to operate, since even though the instrument was received in the course of a delegated hearing, it would be seldom that the original did not attain to the court itself.354 In the field of allegation, it has likewise found small place. Where pleadings are written by the parties themselves or their legal representatives and directly lodged with the court, the only principle applicable is that of immediacy. But a deviation from inquirendum et referendum" Guilhiermoz “Enquêtes et procès" 27. To the former only belonged the power of sub-delegation. Ibid. 28-29; Du Breuil "Stilus curie parlamenti" (ed. Aubert) 175-176.

345. Ordonnance civile of 1667, Tit. XXII "Des enquêtes"; Stein op. cit. 644; Brewer "Geschichte des französischen Gerichtsverfassung" I 289, 291.

346. Brewer op. cit. II 291.

347. Tit. X, XI, Lib. XI, passim.

348. Mittermaier "Ueber das teutschrechtsliche Verfahren bei dem Zeugenbeweis" in "Archiv für die civilistische Praxis" V 196.

349. Buddeus "Commission" in Weiske's "Rechtslexikon" II 704; Kohler "Civilprozess und Konkursrecht" in von Holtzendorff's "Encyklopädie der Rechtswissenschaft" (1913) III 291 n. 1.

350. Heimbach "Zeugen" in Weiske's "Rechtslexikon" XV 381. 351. Engelmann "Der romanisch-kanonische Prozess" 205.

352. Mittermaier op. cit. 30-31.

353. Ante note 254.

354. See Planck "Lehrbuch des deutschen Civilprozessrechts" I 181.

this method may let in the opposite principle. Such an instance of mediacy occurred under the Frederician procedure, when, full play being given to its paternalistic theory, the allegations of the parties were formulated by the "Instruent."355 An equally clear-cut instance of mediacy of allegation is afforded by the present German Code.356 While in general there can be no delegation to a single judge of the hearing at which the parties present their definitive oral allegations, it is provided that in complicated causes involving accounts, partition of property and the like, the court may order a preparatory hearing before a delegated judge for the purpose of fixing the points in dispute.858 At this hearing the parties present orally their allegations and prayers and these are embodied in the protocol by which the delegated judge reports his proceedings to the full court. The allegations, in this exceptional case, therefore, come only mediately before the court itself.

In both branches of our own procedure the allegations have at all times been absolutely ruled by the principle of immediacy. But it is equally manifest that in chancery the opposite principle long governed in the sphere of proof. Like all or most canonically influenced systems, the chancery procedure at an early day gave up the examination of witnesses before the court itself-the orthodox canon principle of immediate though written proof-and resorted to delegation for this purpose. From that time on mediacy sat enthroned with documentation until the assimilation, in recent times, of chancery proof-methods to those of the common law relegated them both to a subordinate, though continuingly co-ordinate, station. The common law procedure, on the other hand, discloses some isolated instances of mediacy, with respect to evidence, as in the proceedings before the auditors in an action of account, following a judgment of 'quod computet,' but, in its normal method of trial by jury, it adhered closely to the principle of immediacy. So close, indeed, was this adherence that, although a change had already come about in the United States,359 it was not until 1830 (1 Wm. IV c. 22) that the common law courts of England exercised any absolute power in reference to taking the depositions of witnesses who were absent from the country or otherwise likely to be unavailable in 355. See ante, under “Party-Presentation and Judicial Investigation." 356. See Planck op. cit. I 179-180.

357. Civilprozessordnung § 348 et seq.

358. Kleinfeller "Lehrbuch des deutschen Zivilprozessrechts" 304; Heilfron and Pick "Lehrbuch des Zivilprozessrechts" (2d ed.) I 791.

359. E. g. Judiciary Act (Sept. 24, 1789) § 30, 1 Stat. 88.

person at the time of trial.360 But, quite aside from what has just been noted, the system did exhibit an application of the principle of mediacy in a way peculiar to itself, and that in the proceedings between trial and judgment. For in the usual case of trial at nisi prius, the judgment was not entered by the judge or judges who tried the case, these might not even be judges of the court wherein the cause was pending, but by the court en banc.361 The verdict, itself, general or special, as the jury's conclusion of fact was thus, as to the court en banc, a result of mediacy. And when the court en banc, in determining whether judgment should follow the verdict, had occasion to examine the trial proceedings anterior to the verdict, as on a motion for new trial, these proceedings could only come to their knowledge by communication from the judge of nisi prius, a communication which, at least in the later history of the system, ordinarily took the form of a report of the evidence.362 This manifestation of the principle of mediacy has very largely disappeared. In England, under the Judicature Acts, the general rule is that all proceedings subsequent to the trial down to and including the entry of judgment shall "so far as is practicable and convenient" take place before the same judge who tried the cause.363 But as the motion for new trial has been converted into a species of appellate remedy, being addressed to the Court of Appeal, an exception to the general rule necessarily exists where such motion has been

360. Chitty "General Practice" (1st Am. ed). II 346. "Before that act there was no power at law to compel consent to a commission or to the examination of witnesses upon interrogatories, though the court would put off the trial at the instance of the defendant, if the plaintiff would not consent; and if the defendant refused, the court would not allow him to sign judgment as in case of a nonsuit." A slight exception existed for the Court of Exchequer; otherwise, the only method of proceeding, in the absence of consent, was by bill in chancery praying for the issuance of a commission. Ibid. 346-347.

361. "The tribunal of trial is not the tribunal of determination The courts of common law have always sent their country cases into the country to be tried before the judges of assize, a different order of judges; and though most of them were judges of the superior courts, they were not necessarily so; nor are they so now, for many are commissioners of assize; and even as to those who were judges of the superior courts they tried cases coming from other courts as well as their own, because as judges of assize, they knew no distinction of the courts whence the issues came. But when the judges of assize have tried the issues the cases still have to be determined in the court in town, for it is there, as Lord Hale pointed out, that judgment is given." Finlayson "An Exposition of Our Judicial System" etc. (1877) 12-13.

362. Tidd "Practice" (9th ed.) II 914; Chitty "General Practice (1st Am. ed.) IV 33. In the early history of new trials, i. e., in the 1600s, there is mention of a "certificate" by the trial judge that the verdict was against the evidence. Anonymous (1665) 1 Keb. 864, Hinton "Cases on Trial Practice" 693. In Martyn v. Jackson (1675) 3 Keb. 398, Hinton 694, there was a "parol affirmation" of Hale, C. J., to the same effect.

363. Appellate Jurisdiction Act, 1876, § 17; Finlayson op. cit. 361.

made, as under the old practice, prior to the entry of judgment.364 In the United States the prevailing system has long been that under which the trial judge hears any objections to the entry of judgment on the verdict and himself directs such entry. In a few jurisdictions, however, such as Massachusetts and Maine, where the older system of a court uniting appellate jurisdiction with jurisdiction in first instance, exercisable for trial purposes by a single judge, is to some extent retained, the entry of judgment, under specified circumstances, may still devolve upon the full court following an examination of the trial proceedings. It goes without saying that in the case of hearings delegated to referees and other officials, charged with the duty of reporting back to the court, wherever these, under present-day legislation, may occur in common law causes, there has been a recognition of the chancery principle of mediacy to the same extent as the principle of documentation.

89. PUBLICITY AND SECRECY

Finally is to be noted the contrast presented between the conduct of judicial proceedings in public, on the one hand, and in secret, on the other, that is to say, between the principles of publicity and secrecy. This contrast, like that last considered, stands in close relation to the distinction between orality and documentation. But of all conflicts of fundamental procedural principle it is the one which, as most intimately connected with considerations of civil liberty, has, on the Continent, figured most prominently in the struggle for political reform. Forced upon public attention by the revolutionary reaction, in France, against the secret, inquisitorial criminal trials of the former régime,365 it occupied the center of the stage in Continental discussions of judicature for upwards of fifty years thereafter. The debate as to the merits and demerits of the two opposing principles concerned itself mainly with criminal procedure, but, by reason, for one thing, of the continued prevalence of secrecy in the civil judicature of most of the German states, extended also to the field of civil procedure. This debate is now all but closed, with the principle of publicity generally in the ascendant. To its progress, however, is owed an illuminating series of acces

362.

364. R. S. C., O. XXXIX, rr. 1, 2, O. XL r. 4. See Finlayson op. cit.

365. "Donnez-moi le juge que vous voudrez," said Mirabeau, speaking before the Constituent Assembly, "partial, corrupt, mon ennemi même, si vous voulez peu m' importe pourvu qu'il ne puisse rien faire qu'à la face du public," quoted by Sabato "Udienza (Materiale Civile)" in "Digesto Italiano" XXIII (II) 1028.

sions to the literature of judicial polity.366 But contribution in the present regard was not limited to Continental writers. For, although, happily, except for the interlude of the Star Chamber, the question at issue was never of burning significance in English law, Bentham's chapters on publicity and secrecy367-one of the soundest products of his peculiar genius-will always be regarded as holding, perhaps, the chief place in the learning of the subject.

In its widest sense, the principle of publicity dictates that the proceedings themselves shall be open not only to the parties and their legal advisers but to all properly conducted persons, whether directly interested or not, who choose to attend. But it may be content with something less. Hence, a distinction is recognized between the case where the proceedings, themselves, are thus accessible to the public in general-immediate publicity ('unmittelbare Oeffentlichkeit')-and when only a report of the proceedings is made public-mediate publicity ('mittelbare Oeffentlichkeit')—as also between the first mentioned case-general publicity ('allgemeine Oeffentlichkeit')—and the case where the proceedings are open only to the parties-party-publicity ('Parteienöffentlichkeit').36

368

From its very nature, the judicial proceeding of the primitive Germanic law was characterized by a full measure of publicity. For it was the stringently enforced duty of every freeman of the hundred to attend the sessions of court and participate in the administration of justice.369 The courts were originally held in the open,— a grove, hillside or valley, dedicated to this use from time immemorial and deemed holy ground, serving as the place of assembly.370 In the cities, the open market place was first generally used for the purpose.371 The earliest court-houses were these places roofed over or else, in urban centers, the town halls.372 When a

366. E. g. Feuerbach "Betrachtungen über die Oeffentlichkeit und Mündlichkeit der Gerechtigkeitspflege" (1821); Mittermaier "Die Mündlichkeit, das Anklageprinzip, die Oeffentlichkeit und das Geschwornengericht" (1845). 367. "An Introductory View of the Rationale of Evidence" c. VIII $89, 10 (Works ed. Bowring Vol. VI pp. 26-28); "Rationale of Judicial Evidence" c. X (Works, Vol. VI pp. 351-380); "A Treatise on Judicial Evidence" Bk. II, cc. X, XI, pp. 67-80. Bentham contrasts "privacy" rather than "secrecy" with "publicity," for the reason that "upon the face of it, it ['secrecy'] seems to exclude gradation, and to be synonymous to no other than the greatest possible degree of privacy": "Rationale" c. X § 1. He definitely refers to the opposing conceptions as "principles": "Rationale" c. X, passim.

368. Engelmann "Der Civilprozess: Allgemeiner Theil" 213. 369. Engelmann "Der mittelalterlich-deutsche Prozess" 13.

370. Ibid. 116, 117.

371. Planck "Das deutsche Gerichtsverfahren im Mittelalter" I 125. 372. Engelmann op. cit. 116; Walter "Deutsche Rechtsgeschichte" (2nd ed.) II 320; Planck loc. cit.