it has caused without sufficient reason so much uneasiness, shame, and disgrace, not less than is the case with a private individual who has effected a false imprisonment. In Germany there exists a school of jurists who protest vigorously and without ceasing against the secrecy and one-sidedness of the preliminary examination and demand from the Government the passage of a law which will provide public defenders as well as public prosecutors, which will make every step of the case public from the very beginning, and which will enable an individual suspected of crime to defend himself judicially, and with full knowledge of the evidence against him, from the moment when suspicion first falls upon him.

The continental criminal courts have, as a rule, three judges, one of whom is president; and on him it devolves to conduct the trial. His activity, however, is very different from that of umpire, as it were, between accuser and accused, to which we are accustomed. The president literally conducts the trial; that is, he interrogates the accused and the witnesses, and may even call witnesses of his own proper motion whose hearing has not been demanded by either party. In Switzerland all parties have the right to ask questions of the witnesses, as have also the jurors; in Germany they have the same right, but must first demand its exercise of the presiding judge; whereas in Italy they must ask the questions through the president, or obtain his permission to ask them directly. The accused is the first person examined, the president being provided with the record of the preliminary interrogatory to see if he makes any changes in his account of the matter. Then follows the examination of the witnesses, who in some courts are not sworn at all, though still liable to punishment for perjury in case of giving false testimony; in others they are sworn after giving their testimony, while elsewhere, as in Italy, they are sworn before testifying. When all the testimony is concluded the parties or their attorneys have the word. Some of the laws confer on the accused or his counsel the right of the last word before the case is given into the hands of the jury, while Germany and Italy have followed the Anglo-American method of authorizing the presiding judge to sum up the testimony and instruct the jury on the law to be applied. Before the jurors retire to their room for deliberation the president poses the questions which the verdict is to answer by yes or no. Our simple formula of "guilty or not guilty" seems to be

unknown on the Continent, where a number of questions more or less complicated are given to the jury, each one of which must be answered separately. These questions are not unfrequently interdependent, and of such a nature as to be unintelligible to the average juror, so that the result of the verdict has at times been entirely different from that intended by the jurymen themselves. The newer codes, as that of Neuchatel, have essayed to reduce the number of questions to a minimum; but even there not less than three are stated, and there may be a number of others. These three necessary questions are: (1) Did the accused commit the deed? (2) Did he commit the deed under such and such circumstances? (3) Is he guilty? For the rendering of the verdict not a single one of the continental countries requires the unanimous vote of the jury, and most of them are satisfied with a decision of the majority. In case the required number of votes for condemnation is not secured, instead of there being a new trial, the accused is set at liberty and can not be again tried for the same offense.

The spread of democratic ideas during the century has had its counterpart in the constantly increasing powers conferred on the jury. The French Republicans of 1790 did not dream of making the jury the judges of anything beyond the mere fact, i. e., whether or not the act charged had been committed by the accused; and, as expressly stated by Duport, it was for that reason that every citizen was declared capable of acting as juror. The law of 1832, however, conferred a new power upon the jury, which was intended to better the administration of justice, but which has proved in its consequences to have been a disastrous error. This was the provision which permitted the jury, in case the accused was found guilty, to declare the existence of extenuating circumstances, in which case the court was to apply a milder degree of punishment than the law otherwise called for. Thus the jury became in a manner judges of law as well as of fact, and a privilege that should have been exercised on rare occasions, when there really existed circumstances which moved to pity for the prisoner, has developed by abuse into the unpardonable habit of declaring the existence of extenuating circumstances in the very worst cases, as was done in 83 per cent of the cases of assassination tried in France during 1887. Thus the basest of criminals have received much less punishment than the law intended, and another result, much more serious still, is also

attributed to the same cause, namely, the cases of repetition of offense by the same individual have increased to the most alarming proportions; for, on the introduction of this law in 1832, the number of such cases was but 7,300 in all France, but before 1890 they had increased to the astounding number of more than 90,000 per annum. M. Loubet,' who has made a. special study of this matter, believing that the principle is good though the practice has been more direful than beneficial in its results, recommends as a remedy, first, that anyone who has already been condemned for a crime shall not enjoy the privilege of the law on extenuating circumstances, and second, that the jury shall be required in all cases to give their reasons therefor when declaring the existence of extenuating circumstances.

The nearest approach to these reform ideas of the French jurist which I have found in existing legislation is in the code of Neuchatel, which provides that if from the hearing it appears that one or several special extenuating circumstances exist the president of the court shall add to the ordinary questions submitted to the jury the following: "Did the accused commit such an act with such or such extenuating circumstance?" In the German Empire, on the contrary, it is within the province of either the prosecuting attorney or the defense to demand the submitting of the general question, "Do extenuating circumstances exist?" The Italian code of criminal procedure provides that the president of the court shall notify the jury that if by a majority vote they hold that extenuating circumstances exist in favor of the accused they shall so declare in due form. The Genevese code goes to a still greater extreme, and makes it one of the functions of the jury to declare not only the existence of extenuating circumstances, but to declare the existence of very extenuating circumstances, by which latter judgment the normal punishment of the offense under consideration is reduced to one-fourth. This excessively democratic code confers on the jury a still further power, namely, after the verdict has been rendered in open court, in the presence of the accused, the code provides that "the court and the jury retire to deliberate on the application of the pun ishment."

The jury system has gradually been accepted as a fundamental institution by nearly all the civilized countries of the

L. Loubet, La Justice Criminelle en France, Paris, 1890.

world. Everywhere its advent has been hailed with rejoicings as for the coming of a savior from the oppression of tyranny, while its results have given rise to almost universal disappointment. What conclusion are we to draw therefrom? Not that the institution is bad, but that, like all human inventions, it is defective. The perfection which had been looked for not being realized, murmurs of discontent arise on all sides. But rational discontent, which leads to thoughtful criticism, is healthful. Even the judicial massacre known as the Reign of Terror has been shown by a German writer' to have been less horrible than it would otherwise probably have been, by reason of the action of the jury, bad, corrupt, and unscrupulous as it was. Any system, however good, may be perverted by the action of bad men; and the worst system may be ameliorated in its working by the efforts of the upright. The ideal, though unattainable, toward which we should ever look and struggle, would be the best system administered by the most capable men. Upright and intelligent men exist in every community, and it is for the electors to choose them. In order to secure the best jury system it is helpful, and indeed necessary, to study the past experience of ourselves and others in order to avoid the errors and to profit by that which has proven valuable. Hence this outline of some European experiments.

Adolf Buchner, Die französischen Revolutionstribunale und das Geschwornengericht. Erlangen, 1854.

XI. THE REGULATORS OF NORTH CAROLINA (1765-1771).'

By Prof. JOHN S. BASSETT, of Trinity College, North Carolina.

The recent publication of The Colonial Records of North Carolina must lead to the rewriting of much of the State's colonial history. The several writers who, before the appearance of these volumes, have written on The War of the Regulation have been handicapped by having to use as sources of information narratives that have been prepared by one or the other of the parties to the struggle. They have not had access to the now published mass of documents, which, as might have been expected, throw new light on many features of the movement. The desire to use this light has inspired the present paper. It

The Regulation is one of the best written about subjects of North Carolina history. Caruthers treats it extensively in his Life of Dr. David Caldwell (1842). He went carefully over the ground and obtained a great deal of his material from old men who had once been Regulators. He is entirely on the side of the Regulators. Caruthers also treats of the subject, but not extensively, in his Revolutionary Incidents (first series), pages 24 et seq. Dr. F. L. Hawkes has a sketch in Cooke's Revolutionary History of North Carolina (1853), pages 13 et seq. It deals chiefly with Husband's Sermons to Asses. Jones treats the matter in his Defence of North Carolina (1834), pages 34-56. Wheeler publishes Husband's book under the heading of Orange County (see his History of North Carolina, Vol. II, pp. 301-331), and Martin and Williamson, in their histories, have treated it as fully as the nature of their works would admit.

Dr. T. B. Kingsbury published several short articles on the subject in Our Living and Our Dead (see Vol. II, p. 434; Vol. III, pp. 39, 314, and 629). The subject is also treated in the North Carolina Journal of Education, October and November, 1859, and in Wiley's Sketch of North Carolina.

All the above, except Martin and Williamson, are apologists of the Regulation. At first in the history of the State everyone seems to have followed the accounts of Tryon and his followers as set forth in these two histories. It was about the time that Jones's Defence was published that there came a change in sentiment. Since that time nearly every thing written has discovered in the Regulation a worthy struggle for liberty. One book recently published, Colonel Waddell's Colonial Officer and His Times, is an exception to this rule. Writing from the standpoint of the