feloniously. If felony, therefore, “signifies clearly," as he says, "such a crime as works a forfeiture of the offender's lands or goods," the distinction mentioned in the statute would be absurd and ridiculous; referring felony to the principle, and not to the consequences of the fact, the provision in the statute is just and humane.

The other statute cited by my Lord Coke is the sixteenth chapter of Westminster the first, made in the third year of the first Edward. It distinguishes between those criminals who may be bailed, and those who ought not to be bailed. In the latter class are ranked those, who are taken for house burning feloniously done-" felonieusement fait."-Does this direct our view to the punishment, or to the intention?

But I am able to produce instances still more ancient and still more strong. The Mirrour of Justices, as has been mentioned oftener than once, contains a collection of the law, chiefly as it stood before the conquest; and consequently before the feudal system was introduced into England. In that collection there is a chapter concerning incendiaries: they are thus described-Incendiaries are those who burn a city, a town, a house, a man, a beast or other chattels of their felony—" de leur felony,”—in time of peace for hatred or vengeance. Do the words of their felony describe that principle, which gives the crime its "body and its form?" or do they relate to a feudal forfeiture, then unknown?

But to put the matter in a light still more striking and clear: in the next sentence, a case is supposed, in which the intention existed, the fact was committed; but the effect did not take place; and, consequently, the punish

ment was not to be inflicted: yet the action is said to be done feloniously. "If one puts fire to a man feloniouslyfelonieusement-so that he is scorched or hurt, but not killed by the fire; it is not a capital crime." d

I suggest another argument, the legal force of which will, by every professional gentleman, be seen immediately to be irresistible. In every indictment for felony, the fact charged must be laid to have been done feloniously. To express this meaning, no other term in our language is legally adequate. The antiquity of indictments, and the high authority of their essential forms, I pretend not to ascertain or to circumscribe.

e

But Sir William Blackstone, in this passage, is opposed not only by principle, by precedent, and by other authority; he is, I think, clearly opposed by his own. He says here, as we have seen, that felony clearly signifies the feudal forfeiture, or act, by which an estate is forfeited, or escheats to the lord. And yet, in another place, he recommends great care in distinguishing between escheat to the lord, and forfeiture to the king; and traces them very properly to different sources. "Forfeiture of lands," says he," and of whatever else the offender possessed, was the doctrine of the old Saxon law, as a part of the punishment for the offence; and does not at all relate to the feudal system, nor is the consequence of any signiory or lordship paramount; but being a prerogative vested in the crown, was neither superseded nor diminished by the introduction of the Norman tenures; a fruit and consequence of which

d 4. Cou. Ang. Nor. 504.

f 2. Bl. Com. 251. 252.

e 1. Haw. 65.

escheat must undoubtedly be reckoned. Escheat, therefore, operates in subordination to the more ancient and superiour law of forfeiture.

"The doctrine of escheat upon attainder, taken singly, is this, that the blood of the tenant, by the commission of any felony (under which denomination all treasons were formerly comprised) is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vassal on the implied condition of dum bene se gesserit. Upon the thorough demonstration of which guilt by legal attainder, the feudal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out for ever. In this situation the law of feudal escheat was brought into England at the conquest, and in general superadded to the ancient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately revest in the lord, but that the superiour law of forfeiture intervenes, and intercepts it in its passage; in case of treason for ever; in case of other felony, for only a year and a day; after which time, it goes to the lord in a regular course of escheat, as it would have done to the heir of the felon, in case the feudal tenures had never been introduced. And that this is the true operation and genuine history of escheats, will most evidently appear from this incident to gavelkind lands (which seem to be the old Saxon tenure) that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason."

Instead, therefore, of considering felony as a feudal forfeiture or escheat, we are here taught, and properly taught, to view them as flowing from different sources, and, in their operations, not only distinct, but incompatible.

Having thus traced the true meaning of felony, not to the event or part of the punishment, but to the principle and disposition from which it proceeds; our next step will be to ascertain, as plainly and as correctly as possible, the nature and character of that principle and disposition. It is characterized by the epithet felleo. Some derive it from the Latin verb fallo, which signifies, to deceive, others from the Greek word ones, which signifies an impostor or deceiver. In language, these derivations are different: in sentiment, they are the same. Perhaps they may lead us to as just a conception as can well be formed of felony-the generical term employed by the common law to denote a crime.

Without mutual confidence between its members, society, it is evident, could not exist. This mutual and pervading confidence may well be considered as the attractive principle of the associating contract. To place that confidence in all the others is the social right, to deserve that confidence from all the others is the social duty, of every member. To entertain a disposition, in which that confidence cannot with propriety be placed, is a breach of the social duty, and a violation of the social right: it is a crime inchoate. When an injury, atrocious in its nature, or evil in its example, is committed voluntarily against any one member, the author of that voluntary injury has, by his conduct, shown to all,

that their right is violated; that his duty is broken; that they cannot enjoy any longer their right of placing confidence in him; that he entertains a disposition unworthy of this confidence; that he is false, deceitful, and treacherous: the crime is now completed.

A disposition, regardless of social duty to all, and discovered by an injury, voluntary, and atrocious or dangerous, committed against one-this is a crime against society. Neither the disposition separated from the injury, nor the injury separated from the disposition, constitutes a crime. But though both the ingredients are necessary, they have not an equal operation in forming that character, from which a crime receives its denomination. In the consideration of crimes, the intention

is chiefly to be regarded.

As the injuries, and the breaches of social trust and confidence, which we have mentioned, may relate to a great variety of objects, and, in their own nature, may be more or less aggravated, it follows, that crimes may be distinguished into many different species, and are susceptible of many different degrees.

Some think, that, at common law, the disposition, separated from the injury, constituted a crime. The saying, that "voluntas reputabitur pro facto," seems to have given rise to this opinion. On a close examination, however, it will, I imagine, appear, that, in all the cases, on which the opinion is founded, and from which the saying is drawn, an injury was done, though not the injury intended to be done.