176 WINDER v. DIFFENDERFFER.—2 BLAND.

681, note; 4 Laing's His. Scotland. 254. (i) This publicity of judi-
cial proceeding, which existed in all parts of Europe governed by
the Eoman law, Adams' Rom. Ant. 241, 255; Kenneths Rom. Ant.
153; and under those governments which arose immediately out of
the fall of the Eoman empire, was first abolished, by the papal de-
cretals, towards the close of thirteenth century. The Pope be-
lieved, that the secreey of judicial proceedings would furnish him
with a more certain means of extirpating heretics; and the civil
tribunals adopted, in succession, an innovation which relieved
them from public censure, by concealing' the errors they were lia-
ble to commit: while the veil of mystery, which enveloped their
proceedings, was calculated, in the eyes of the vulgar, to invest
them with an air of great importance. 1 Hallam's Mid. Ayex, oh.
7; 1 Lond. Jurist, 251. The English Chancellors, * prior to
188 the commencement of the seventeenth century, were almost
always appointed from among the dignitaries of the then estab-
lished Catholic church of England; and those ecclesiastical Chan-
cellors gave to the Chancery Court, as a Court of equity, its gen-
eral outline and substantially fashioned its modes of proceeding.
3 Blac. Com. 54; Parks' His. Co. Chan. 20, 49.

Hence it is fair to conclude, that this mode of collecting testi-
mony, under a solemn injunction of secrecy, was an ecclesiastical
contrivance; and that it may be regarded as one of the papal per-
versions of the mode of administering justice. 1 Bro. Civ. Law,
478; The William and Mary, 4 Rob. Ad. Rep. 381. A slight review
of the English authorities upon this subject will be sufficient to
show, that this rigid obligation of secrecy in taking testimony is
always inconvenient, and often attended with great expense and
delay, besides being sometimes made the instrument of the most
grievous fraud. Cooth v. Jackson, 6 Ves. 12.

The mode of collecting testimony in the Court of Chancery of
Maryland has been altered and materially improved. The whole
proceedings under a commission to take testimony have been
thrown open; all secrecy has been abolished; and each party is
required to be notified, and has a right to be present, and to have
his interrogatories publicly propounded to the witnesses, (k)

(i) " It is, however, to publicity more than to every thing else put together,
that the English system of procedure owes its being the least bad system as
yet extant, instead of being the worst. It is for want of this essential prin-
ciple, more than anything else, that the well meant labors of Frederick and
Catharine, in the field of justice, have fallen so far short of the mark at
which they aimed,'' per Bentham, Park. Hist. Co. Chan. 5. "I know that
it is one of the best securities for the honest exercise of a Judge's duty, that
he is to discharge that duty in public."—Per ELDON, Chancellor; Wellesley
v. Beaufort, 3 Cond. Chan. Rep. 9.

(k) In Maryland, as in England, in all cases where evidence was proposed
to be collected, under an ordinary commission for that purpose, the commis-
sioners and clerk's oath, sent with the commission, required them to swear,