as a customary in most of the ecclesiastical courts themselves. At first, under the Romanized procedure, the parties were allowed to attend for the purpose of handing in their pleadings, and to be present at the administration of oaths, the reading of the depositions and the pronouncement of judgment.411 But gradually, in the principal courts, the proceedings became so closed to their access as to occasion the statement that "finally, of the celebrated publicity of ancient days nothing remained but the publication of judgment kind of solemn ceremonial."412 Nevertheless, it continued to be the rule of the common law procedure that the witnesses were to be sworn in the presence of the parties.13 Moreover, all proceedings were governed by a limited form of the principle of mediate publicity, that is to say, the papers were open to inspection of the parties and persons legally interested. No essential change in the present respect was introduced by the Frederician legislation in Prussia. 415 As in the case of witness-examination, when change came about, it was through the acceptance of the French procedure by the Rhine provinces and the influence which this exercised upon legislation elsewhere. Thus the general trend of legislation, in the several states was, at least, to some form of oral argument in open court. In Prussia the oral argument, introduced for the ordinary procedure in 1846, was thrown open to the general public in 1849.17 The Hanoverian Code of 1850 provided for both pleading and argument in open court very much as in the French system. 418 Full publicity accordingly was adopted as the governing principle in the existing German legislation,19 with the qualification already noted for proceedings of any sort before a delegated judge. In Spain, the domination of the Romano-canonical influence, it would appear, did not lead to quite the same foreclosure of publicity as in Germany. Still, the only part of the proceedings transacted in public audience prior to the 1800s was the 'vistas de los pleitos,' that is to say, the report made to the court by the judge to whom the cause was delegated for 411. Maurer "Geschichte des Gerichtsverfahrens" § 222, p. 248. 412. Ibid. loc. cit. 416 413. Heffter "Institutionen des Civilprozesses," 362; Biener "Systema processus judiciarii" § 141. 414. Heimbach "Process" in Weiske's "Rechtslexikon" VIII 684 and note 444. 415. Heilfron and Pick "Lehrbuch des Zivilprozessrechts" (2d ed.) I 295; Schwartz Vierhundert Jahre deutscher Civilprozess-Gesetzgebung" 513. 416. Schwartz op. cit. c. IX passim. 417. Ibid. 585. 418. Ibid. 610 et seq. 419. Gerichtsverfassungsgesetz § 170; Civilprozessordnung § 159. examination, followed by the oral observations of the advocates.420 But by a series of executive regulations beginning in 1835, and by statute in 1855, the principle of publicity was given further extension and, finally, by the Code of 1881 applied to the transaction of all judicial business.421 A The rule of publicity, as thus obtaining in the countries mentioned, for matters of contentious jurisdiction, is everywhere subject to certain exceptions dictated by considerations of public policy. In France, the court is authorized to order the exclusion of the general public when the nature of the cause is such as would otherwise "entail scandal or grave inconvenience."'422 Aside from the matter of proof, an authoritative writer mentions but two cases of contentious jurisdiction in which privacy is absolutely prescribed: (a) the examination of the alleged insane person in proceedings to declare his incompetency and (b) proceedings by which a married woman seeks judicial authority to act alone ('demande en autorisation') where concurrence by her husband has been refused. 423 notable provision is that which prohibits newspaper accounts of divorce hearings.424 The Italian Code permits proceedings behind closed doors "when publicity by reason of the nature of the cause would imperil good order or public morality."425 Specifically withdrawn from the rule of hearing in open court are cases where there is no contest and "other cases determined by law," of which there is a considerable number.426 Under the German law, exception to the general rule is made (a) in matrimonial causes, upon the motion of either party, (b) to a large extent, in proceedings concerning judicial declarations of incompetency and (c) where publicity would jeopardize the public interest, and particularly the security of the state, or endanger public morality.427 And the Spanish law empowers the court to close its doors to the public in proceedings other than the taking of proof "when morality or decorum exacts." For the taking of proof the provision exhibits a slight difference of wording here exclusion of the public may take place when the 420. Manresa "Comentarios á la ley de enjuiciamiento civil" (2d ed.) II 8-9, 10. 421. Ibid. 10-11. 422. Code de procédure civile § 87. 423. Glasson "Précis de procédure civile" (2d ed.) I 445-446. 424. Ibid. loc. cit.; Code civile § 239. 425. Codice di procedura civile § 52. 426. Id. § 778 and note in Franchi "Codici e legge" I 337. 427. Gerichtsverfassungsgesetz §§ 171, 172, 173. 428. Ley de enjuiciamiento civil § 314; Manresa "Comentarios á la ley de enjuiciamiento civil" (2d ed.) II 12-13. evidence is "calculated to produce scandal or offense to morality."429 It is, however, generally true in all the legislations mentioned that whether the previous proceedings have been had in camera or not judgment must be pronounced or published in open court.430 In the Anglo-American legal system, the procedure of the com-, mon law courts, from its earliest days, has given full play to the principle of publicity.431 Jury trial effectively served to continue the Germanic tradition of an administration of justice in which the public are participants,432 for "the verdict of the jurors is not just the voice of twelve men; it is the verdict of a 'pays,' a 'country,' a neighborhood, a community."433 And just as it was instrumental in warding off other changes in procedure, so the existence of the jury served to maintain publicity of the trial proceedings, in the face of the pressure exerted by the ecclesiastical influence, which elsewhere had succeeded in implanting the institution of secret witness-examination. On the other hand, as we know, that influence made itself distinctly felt in the court of chancery where there was no jury to hinder. Under the classic system of that court, not only was the examination of witnesses by means of written interrogatories, but neither the parties nor the general public was permitted to attend the examination or to inspect the depositions until after the formal order of publication. In the earlier period of the court, an even more drastic application of the principle of secrecy, borrowed from the same source, was the occasional practice of taking testimony 'ad informandum conscientiam judicis.' For, in this 429. Ley cit. § 572: Manresa op. cit. III 184. 430. France: Glasson "Précis de procédure civile" (2d ed.) I 444-445; Germany Gerichtsverfassungsgesetz § 174 (but the grounds may be suppressed in whole or in part when calculated to endanger the security of the state or offend public morality. Ibid.; Italy: See Codice di procedura civile 8366 (here the code does not require the reading of the grounds in any case); Spain: See Ley de enjuiciamiento §§ 364, 365. 431. At a former day, in England, it appears to have been a practice, most probably confined to the case of spectacular trials, for the doorkeepers of the courts to charge the public a small admission fee. See Bentham "Rationale of Judicial Evidence," Works (ed. Bowring) VI 377; Barrington "Observations on the Statutes" (5th ed. 1796) 144-145. The latter author is of opinion that the Statute of Westminster II, 13 Edw. I, cc. XLII and XLIV permitted the exaction from spectators of "one penny each for admission, which may be nearly equal to a shilling at present." But this view has been exploded by Sir Frederick Pollock in a note to Scott v. Scott [1913] A. C. 417, 441. Bentham, strange to say, considers that "pay, exacted for places of superior convenience" is not inconsistent with the principle of publicity. Op. cit. 361. 432. Pollock "Expansion of the Common Law" 41. 433. Pollock and Maitland "History of the English Law" (2d. ed.) II 624. 434. Barton "Suit in Equity" (Holcombe's ed.) 134, 140; Kerly "History of Equity" 268; Daniell "Chancery Practice" (1st ed.) II 510-511. instance, the depositions were delivered sealed to the judge and apparently never published except as the evidence which they furnished might be stated in the decree. The practice, however, does not seem to have survived the time of Lord Bacon.435 But the secret deposition, with subsequent publication, continued to be the regular method of presenting evidence down to the era of modern legislation. Nor did the introduction of oral examination necessarily bring with it any complete disappearance of the principle of secrecy. Proceedings before the court itself had always been open to the public and, so far as it was to take place before the judge, the new oral examination became impressed with the principle of full publicity. But as to examination before a delegated official the case is not the same. Thus, in 1877, it was held in England that, under 15 & 16 Vict. c. 86, providing for oral examination before an examiner of the court, the right of attendance at the examination was restricted to the "parties, their counsel, solicitors, or agents": "the public," said the court, "have no right whatever to go into the examiner's office, and the examiner has no discretion as to admitting them."436 A similar conclusion was reached, in 1912, by the United States District Court for the District of Massachusetts, as to an examination on oral interrogatories before an examiner, under the 67th of the former Federal Equity Rules. The fact that the 69th of the same rules, as noted by the court, provided for subsequent publication of depositions would seem, of itself, to show that exclusion of the public was contemplated, but the court places its chief reliance on the proposition that the deposition does not become actually a part of the judicial proceedings until it is offered in evidence before the court and declares that "by common understanding of bar and bench the taking of depositions is a private and not a public proceeding."437 Proceedings before a master in chancery occupy a somewhat dubious position in the present regard. As a practical matter, such proceedings, in this country, may be considered as governed by the rule of publicity, but, in point of strict law, the question of the public's right of access seems quite as speculative as it was in Bentham's day.438 It should be noted, finally, that the rules under the English Judicature Acts, in greatly extending the field of interlocutory proceedings at chambers have 435. Spence "Equitable Jurisdiction of the Court of Chancery" I 380381; Kerly op. cit. 123. 436. In re Western of Canada Oil, Lands & Works Co. 6 Ch. D. 109. 437. U. S. v. United Shoe Machinery Co. 198 Fed. 870. 438. See "Rationale of Judicial Evidence" Works (ed. Bowring) VI 376; see also Kerly op. cit. 273. materially affected the rule of publicity, since such proceedings are not open to the general public.439 There is no explicit prohibition of access, but "the authority to keep the public out appears to flow from the purpose for which these proceedings are authorized."440 So far as concerns exceptions to the principle of publicity, arising from the nature of the cause, the English cases prior to 1913 seemed to favor the view that the courts generally, or at least the Divorce Court, by its supposed inheritance from the ecclesiastical courts, had certain power to hear causes in camera where considerations of public decency made it expedient. But in Scott v. Scott,441 decided that year by the House of Lords, it was held otherwise. Under this case it appears to be settled that, apart from two statutory instances falling outside the domain of civil procedure, the only three recognized exceptions to the general rule of publicity are, in the words of Lord Shaw's masterly judgment, "first, in suits affecting wards; secondly, in lunacy proceedings; and, thirdly, in those cases where secrecy, as, for instance, the secrecy of a process of manufacture or discovery or invention-trade secrets-is of the essence of the cause. The first two of these cases . . . depend upon the familiar principle that the jurisdiction over wards and lunatics is exercised by the judges as representing his Majesty as 'parens patriæ.' The affairs are truly private affairs; the transactions are transactions truly 'intra familiam'; and it has long been recognized that an appeal for the protection of the court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs. The third case-that of secret processes, inventions, documents, or the like-depends upon this: that the rights of the subject are bound up with the preservation of the secret. To divulge that to the world, under the excuse of a report of proceedings in a court of law, would be to destroy that very protection which the subject seeks at the court's hands. It has long been undoubted that the right to have judicial proceedings in public does not extend to a violation of that secret which the court may judicially determine to have patrimonial value and to maintain.”442 439. Craies "In Camera" in "Encyclopædia of the Laws of England" (2d ed.) II 519. 440. Ibid. loc. cit. 441. [1913] A. C. 417. 442. Pp. 482-483. According to the view of Lord Chancellor Haldane, the third exception ought to be treated as large enough to include any case where justice cannot be done without proceedings in camera, as where the "evidence can be effectively brought before the court in no other fashion" (p. 438). Lord Halsbury, while not disagreeing with this suggestion in prin |