278 HISTORY OF LAW 



in the courts are public. In this regard there was a distinction in 

 Lord Coke's time between criminal and civil proceedings. Of the 

 former it may be said that when the colonists came to America 

 a prisoner was kept in confinement more or less secret till his trial 

 and could not prepare for his defense. He had no counsel either 

 before or at the trial. At the trial there were no rules of evidence as 

 we understand the expression, and the accused could not call wit- 

 nesses in his own behalf. (1 Stephens's Hist. Grim. Law of Eng., 

 350.) But of civil causes, as Lord Coke said, "All causes ought to 

 be heard, ordered, and determined before the judges of the King's 

 Court openly in the King's Courts, whither all persons may resort, 

 and in no chambers or other private places; for the judges are not 

 judges of chambers, but of courts, and therefore in open court where 

 the parties' councell and attorneys attend, ought orders, rules, 

 awards, and judgements to be made and given, and not in chambers 

 and other private places, where a man may lose his cause, or receive 

 great prejudice, or delay in his absence for want of defense. Nay, 

 the judge that ordereth or ruleth a cause in his chambers, though 

 his order or rule be just, yet offendeth he the law because he doth it 

 not in court." (2 Inst. 103.) 



It is not merely for the public good that the English secured a pub- 

 lic trial for civil and criminal causes, inestimable as is this feature of 

 the common law. But all proceedings must be open; in some cases 

 they are too open. But the general advantage outweighs this defect. 

 But there is another aspect to this subject, namely the educative. The 

 educational advantage to the public I consider trifling in civil cases. 

 But the educational advantage to the bar and to students is well 

 stated by Coke. " It is one amongst others of the great honours of the 

 common law that cases of great difficulty are never adjudged or 

 resolved in tenebris or sub silentio suppressis rationibus ; but in open 

 court and there upon solemn and elaborate arguments, by counsel 

 learned of either party; and after that at the bench by the judges, 

 where they argue seriatim upon certain days openly and purposely 

 fixed, declaring at large the authorities, reasons, and causes of their 

 judgments and resolutions in every such particular case (habet enim 

 necsio quid energiae viva vox) ; a reverend and honorable proceeding 

 in law, a grateful satisfaction to the parties, and a great instruction 

 and direction to the attentive and studious hearers." (9 Rep. Pref. 

 p. 38.) 



A fifth characteristic of the common law is that in deciding ques- 

 tions of law the judges are controlled by statute; in the absence of 

 statute, by precedents or custom; and in the absence of both, or 

 if the precedents conflict, by their own reason. No reported case 

 up to this time so fully discusses this proposition as Calvin's Case; no 

 more novel case could be devised. "The case is rare and new," said 



