this State, murder is not a felony, nor is any grade of homicide.

2d. That the indictment is defective, in not stating specifically, and by way of a substantive averment, that there was a trial for felony. 3d. That the punishment to be inflicted is to be graduated by the standard of what is due to the particular crime, from which the accused attempted to discharge the person on whose trial he was

sworn.

Reference has been made to the British books for the definition of felony. It has also been urged, that as the law in force at the time of adopting the constitution, had declared certain crimes to be felonies, there was something for that instrument to operate on in the use of the term felony-that, as in the revised code, certain offences are still declared to be felonies, and neither murder, nor homicide of any grade, is so called, that, therefore, murder in this state is not felony.

On the first point, the court remarks, that the term felony has been adopted by us from the jurisprudence of England; and, probably, into that from the Teutonic or German laws and institutions. In this country, its signification is different from what it is England, and there, probably different from what it was in the Teutonic or German laws. In the latter, the fee, that is the fief or land, was only forfeited-but in England, both the fee and goods, in some cases are forfeited. It was adopted in England as a technical term, and in the course of time its meaning

was, probably, changed as above specified. Mr. Justice Blackstone says, that, "by long use we began to signify by the term felony the actual crime committed, and not the penal consequence. Again, he says, "the idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them; and to this usage the interpretations of the law do now conform; and, therefore, if a statute makes any new offence felony, the law implies that it shall be punished with death." He, therefore, uses it as a general term, including all capital crimes below treason. In this country, it has also been adopted into our statutes and law language. It will be found to have been employed several times in the constitution of this State, (see art. 3. sec. 8, and 23; also art. 13, declaration of rights, sec. 15), and very often in our statutes, (see revised code, title, crimes and misdemeanours, chap. 1 and 2.) By an examination of these references and the constitution, it will be seen, that it has become a term in common use with us, and means something very different from what it did in England. This court is, therefore, now called on for the first time, as it is believed, in this country, to expound the law in this particular, and to define the term felony, under our constitution and laws.And I am of opinion that the term felony, in this country, means all crimes or offences above the grade of misdemeanours. Mr. Christian says, it is used in England in contradistinction to misdemeanours, and that misdemeanours comprehend all indictable offences

which do not amount to felony. I, therefore, consider the use of the term in our system of jurisprudence, as descriptive of the offence, or its grade, without any reference to its punishment or consequences. Hence in the use of the term felony, in the 56th section of the "act concerning crimes and punishments," on which the indictment is founded, I am of opinion, that the legislature meant all crimes whereof the punishment is death, and such others as are expressly declared to be felony by that act, and perhaps, I may go further, and say, all such whereof the punishment, by the common law, was the forfeiture of goods or lands. Such I find to be the fact in Virginia: as may be seen by Tucker's Blackstone, page 95, note (1.) The learned judge there remarks, that, "although forfeiture of lands, as well as of goods, is abolished in Virginia, yet this does not alter the nature of felony but all offences which induced a forfeiture at the common law, or which have been declared capital by statute, still remain felonies, as if the consequences were still the same.

On the second point I will only remark, that felony not being punishable in this state with forfeiture, it becomes unnecessary, in my opinion, to charge a murder, for example, to have been feloniously committed, and that murder here, as well as in England, necessarly means felony. It will hence follow, that, in my opinion, it was not necessary to aver in this indictment, that the trial of Soye, for the murder of Reddit, in which the perjury was committed, was a trial for a felony. It will

be observed, however, that this indictment does state, that Soye was tried for the felonious murder of Reddit.

On the third point, it is understood to be urged, that it is not from a charge of murder, in its broadest and most general signification, that the prisoner is charged with having intended to discharge Soye, but only the particular act charged in that indictment, as a murder-that as every indictment for murder is necessarily an indictment for man-slaughter, it will follow, that one for man-slaughter only, will never be preferred under this law, because, if perjury be thereon committed, the punishment will not be death.

It will at once be observed, that the statute in this case, declares, that on conviction, the party shall suffer such punishment as is due to the crime with which he has discharged, or attempted to dis charge, the other, and not the crime of which the party on trial may be convicted. If, as is contended on this point, it was the intention of the legislature, that the prisoner should suffer, on conviction, only such punishment as Soye has been sentenced to receive, on his conviction for manslaughter, instead of murder, it is inconceivable why such different language has been employed by the legislature. Indeed, it will necessarily suggest itself to the mind of every one, that the charge of murder may be reduced to manslaughter, by the perjury itself, and that the party would not only have a powerful motive for reducing the charge, but would, in that event, enjoy the benefit of the perjury. If the intention of

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the legislature was what is contended for by the prisoner, it was easy for them to say so. But how very different is the language of the act. The evil resulting, in practice, from construing this statute agreeably to its plain meaning, and the force and effect of the terms employed, is one that this court cannot control and it would be nothing less than a direct act of legislation in this court, to say, that the punishment which the prisoner shall suffer, on this indictment, shall be such as is prescribed for the crime of nianslaughter, whereof Soye was convicted-whereas the law expressly says, it shall be such as is due to the crime with which he discharged or attempted to discharge, Soye. It is needless to add, that the punishment or murder being death, under this construction of the law, that of the prisoner at the bar must also be death.

SENTENCE.

John Brewer: You have been indicted for perjury, and found guilty. The court has heard the objections made by your counsel, why sentence should not now be pronounced against you. It has listened to and examined them, with all the attention and ability in its power. It has considered them with a full knowledge of the awful consequences to you, should they be overruled, and with a deep and appalling sense of its own responsibility

You have had able counsel assigned to you, who have distinguished themselves in your defence. Every thing that talents and ingenuity could effect, has been attempted in your behalf; but such has been the irresistible

strength of the current of evidence and law against you, that both the jury and the court have been constrained to pronounce you guilty. Twelve of your fellow citizens have passed on the question of your guilt or your innocence, and it surely cannot yet have escaped your recollection, that after the very able effort of the counsel in your behalf, they required but a few moments to pronounce you guilty. It is needless to say from how much responsibility it would have relieved the court, if the jury had found you not guilty, and how much pleasure it would have afforded the judge, to have been relieved from this most unpleasant duty, which he has now to perform.

Your counsel, as they have repeatedly declared to the jury, have in vain sought for your motive in the committing of this crime; and, although by the laws of your country you have been declared guilty, it is possible, in the All-Seeing eye of your God, you may not be so. It is my most earnest wish, that this may be the case; but, if not, your motive is between him and yourself; and in the name of the violated laws of our common country, I now call upon you to prepare to die. You are now on the brink of the grave: You are on the borders of eternity; you are now rapidly hastening to that unknown land," from whose bourne no traveller returns."

If you in reality be guilty, in the sight of God, as well as man, let me most earnestly exhort you to repent. The crime of perjury, of which you have been convicted, is justly described in the indictment, as being committed" to the great

displeasure of Almighty God." In the oath you took, you called on him to help you to speak the truth. If, instead of doing this, you have, as the jury have said, falsely, wickedly, wilfully, maliciously, and corruptly, committed perjury, you are about to be called to a dreadful account. At this awful moment, when you are probably about to be for ever separated from your wife, your children, and every other endearing object in this world, it becomes you to pause and reflect; it becomes you to remember into whose presence you are about to appear. In the eternal records of that tribunal, your guilt or your innocence is already registered.

If you have by your own act, percipitated yourself before its bar, without a wicked and wilful intention to commit perjury, I do most deeply feel for you; but, if you have coolly and deliberately, and in the presence of that Diety whose aid you invoked, in the evidence you gave on the trial of Soye, sworn falsely, with the in

tention to acquit him, unlawfully, of the crime of which he was charged; and more especially, if you have done this from other motives, which the court will not now name, your case becomes almost too horrible for reflection. It is far from my wish to insult you, or even unnecessarily to wound your feelings, in the sentence which the law calls on me to pass on you. Let me, therefore, again warn you to prepare for death-and may you before the bar of the great judge, he, who shall judge both you and my. self, receive pardon and mercy.

The sentence of the court is, that you be remanded to the jail from whence you came, there to remain until Thursday the twentyeighth day of this present month; on which said day you are to be taken in the custody of the sheriff, from said jail to the place of execution, and there by said sheriff, between the hours of twelve and two o'clock of that day, be hanged by the neck until you are dead.

PERTH, Sept. 22. This trial having excited the greatest possible interest, the Court was crowded at a very early hour, and they considered themselves fortunate who could gain an admission upon any terms.

The court having met--Hon. Lord Gillies on the Bench,-the case of His Majesty's Advocate against David Landale, merchant, in Kirkcaldy, was called. Mr. Landale, who was at large since the unfortunate rencontre, appear

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ed and took his place at the bar, ported by Provost Hadden, of Aberdeen, Mr. Moneypenny, of the Customs, and Messrs. Spears, sen. and jun. of Kirkcaldy. criminal letters were then read, charging the said D. Landale with the crime of murder, in so far as he did, on the 22d of August last, wickedly and maliciously challenge George Morgan, jun. then agent for the Bank of Scotland, in Kirkcaldy; and on the 23d of same, on the farm of Car