rule absolutely excluding certain classes of witnesses have been replaced by the more sensible ones excluding certain kinds of tes timony. It is interesting to note that our distinc tion between the record and the bill of exceptions comes down to us from the time of those early jurors, who combined in them selves the double function of jurors and witnesses. When the jurors themselves knew the facts in the controversy, there was no need of testimony. A complete record of the proceedings in court was made up of what we now call the pleadings, to gether with the verdict of this jury and the judgment. When the courts began to take testimony, this testimony was no part of the record as established in these ancient courts, and could only be made such by some procedure similar to the modern one of settling a bill of exceptions. It will be noted that before the modern jury had its beginnings, in the time when purgation, mooted questions by the wager were determined of battle orbybycomthe ordeal, the accused was not disqualified. This disqualification came only when the courts were so organized that the introduc tion of evidence, as distinguished from compurgation, becomes essential to the de termination of disputed questions. We owe our peculiar system of legal rules, which is grouped under the designation of the law of evidence, to the jury system. Without the jury our law of evidence would probably be as undeveloped as it is in those continental European countries where the jury is called only in criminal cases. These rules of evidence are not based on logic, but have been slowly evolved from ju dicial experience with untrained minds which must be tied down to the question at issue, so that all incompetent testimony may be excluded. The jury itself arose silently and gradually out of a state of society that has long since passed away. It does not owe its
origin to any positive law, but was estab lished by a process of slow and gradual growth. With the abolition of the ordeal in 1215, there was left but one method of determin ing the guilt or innocence of one accused of crime, that of trial by jury, which had its beginnings a half century earlier and more. Far from being a right guaranteed to the accused, this right to trial by jury was some thing to be purchased with gold or influence. It became very popular after the abolition of the right to establish one's innocence by com purgation about the middle of the twelfth century, as, after this time, it afforded the only means of escaping conviction under the ordeal. When the ordeal was abolished early in the thirteenth century, the trial by jury was the one method of trying accused per sons that remained, and this one method could be employed only when the jury was demanded by the accused. No one was compelled to have a jury trial. Those ac cused of crime soon discovered that, if they did not demand a jury trial, they might es cape punishment, as they were no longer compelled to go to the ordeal. Then fol lows the adoption of one of those interest ing expedients, so often resorted to in the course of legal history, by which the result desired is accomplished without attempting to remove the cause of the trouble. The courts met the emergency by committing the defendant to prison, where he was stretched upon the floor, with heavy stones piled upon his breast, while he was regaled with stale bread, bilge water and other simi lar delicacies until he demanded a jury trial. Thus did the old judges administer justice, at the same time keeping sacred the right of the accused to have a jury trial only when he demanded it. This practice was not abolished in Eng land until about the time of the Declaration of Independence. It was frequently called into use on this side of the Atlantic. Dur
