As before stated, the majority held that the saving clause in the Judiciary Act (contained in Section 24 of the Judicial Code) permitted to some extent changes by state legislation in the general maritime law. Thus, liens upon a vessel for repairs in her own. port may be given by state statutes; pilotage fees fixed, and the right given to recover for causing death (Jansen case p. 216). In many cases contracts connected with ships or shipping are yet deemed not maritime in their nature-such as contracts to build ships. The states may legislate as to such contracts, and give builders' liens on the vessel, which are enforceable in state courts, or in federal courts of admiralty (they must be enforced in admiralty courts, if the lien is to be enforced in rem.): Edwards v. Elliott 21 Wall. 532; Iroquois Transportation Co. v. De Laney Forge & Iron Co. 205 U. S. 354. In Western Fuel Co. v. Garcia U. S. Sup. Ct. Ad. Op. 1921-2 p. 97, the court (without dissent) held a state statute allowing recovery of damages for wrongfully causing death was applicable in the case of a stevedore, and that federal admiralty courts had jurisdiction to enforce the remedy. The court said that, while the states cannot change the general feature of the maritime law so as to defeat its uniformity, they may make some modifications or supplements thereto, death statutes being a permitted supplement or modification. In Chelentis v. Luckenbach Steamship Co. 247 U. S. 372, the majority of the court held that a state cannot by statute impose upon a vessel owner the unlimited liability of the common law for negligently caused injuries to a seaman, since such a statute would improperly impair the uniformity of the general maritime law which allows recovery only for wages to the end of the voyage and medical and other expenses of the cure. In Union Fish Company v. Erickson 248 U. S. 308, the court held that a state statute of frauds could not be made applicable to a contract to employ a mariner.

In Grant Smith-Porter Ship Co. v. Rhode U. S. Sup. Ct. Adv. Op. 1921-2 p. 172, the court held a state workmen's compensation act to be applicable to a carpenter engaged in work upon a vessel in process of construction after she had been launched, and that such act furnished the exclusive remedy The court therefore denied a recovery in admiralty for damages for negligent injury, though but for the act the recovery would have been allowed, the court holding that the injury, since it occurred after the vessel was launched into navigable water, was a maritime injury. The distinction between this case and the Jensen and Stewart cases goes upon the difference in the nature of the employment. The stevedore and bargeman are engaged in a maritime employment-the contract of employment is maritime. The carpenter at work finishing a launched (or unlaunched) ship is not engaged in a maritime employment-his contract of employment is not maritime. The doctrine of the Jensen and Stewart cases is not applicable to nonmaritime employments even though the injury is maritime.

L. M. G.

CRIMINAL PROCEDURE-INDICTMENT-USE OF "FELONIOUSLY." -People v Matthias Connors 301 Ill. 112, 113 N. E. 639 (opinion by Mr. Justice Dunn), and People v. James Connors 301 Ill. 249, 133 N. E. 675 (opinion by Mr. Justice Carter), decide that the word "feloniously" is not essential to an indictment for burglary of a railroad car. The ground of decision, in both cases, is that where the charge is of a statutory offense, the common law rule prescribing the use of the term in question has no application. But the mode of reasoning followed in the Matthias Connors case, on the one hand, and the differences between the two opinions, on the other, are such as to leave considerable doubt concerning the exact status of this 'vox artis' in the sphere of criminal pleading.

The opinion in the Matthias Connors case, after referring to the holdings in Ervington v. People 181 Ill. 408, that the word is required in an indictment for assault with intent to commit murder, Bolen v. People 184 Ill. 338, that it is unnecessary in the case of incest, this being a statutory offense, although the rule "would be different where the offense was a felony at common law," and People v. Ashbrook 276 Ill. 382, that it is also unnecessary in the case of perjury, because this, too, is a statutory offense, proceeds to deal with fundamental considerations. It is pointed out that felonies, in the common law sense, never have existed in this State, that there was no statute defining felonies until the adoption of the Criminal Code of 1874, that the statutory division between felonies and misdemeanors "is in no sense the division known to the common law, and is not based on the same distinction, but is an arbitrary statutory classification of criminal offenses which has the advantage of ease and certainty of application." In view of this and of the provision, originally adopted as part of the Criminal Code of 1827, that an indictment was to be deemed sufficient if it stated the offense in the language of the statutes1 or so plainly that it might be easily understood by the jury, "feloniously' ceased to be a technical word necessary to the description of offenses, for it had no other meaning in the law than its ordinary one of manifesting a criminal purpose. Since the existence of felonies as a separate class of crimes was not recognized in the code, but they were recognized as merely having existed at common law, there was no reason why it should be regarded as necessary that any acts indictable under the Criminal Code should be described as felonious."

With this position for premises, we might well expect the question to be decided on the broad ground that, accordingly, the word "feloniously" is not necessary in any case. But this consideration of 'stare decisis' seems to have prevented. The opinion, speaking again of the statute in reference to the sufficiency of the indictment, goes on to say: "This provision has been construed by the court in

1. "Terms and language of this code" was the expression in the original enactment, Sec. 150 of the Criminal Code of 1827, quoted by the court. It nowhere appears, however, that the change, in 1874, to the present form: "terms and language of the statutes creating the offense" was effected with any intention of narrowing the scope of the provision.

various cases, most of which have been cases where the offense charged was not a crime at common law, but was created by statute, and in all these cases it has been held that a charge stated in the language of the statute, or so plainly that the nature of the offense charged could be easily understood by the jury, was sufficient." Assault with intent to commit murder is noted as "the one case" in which "feloniously" was required, under certain early decisions followed in the Ervington case, supra. Then, succeeding a reference to the holding, in Lyons v. People 68 Ill. 271, that an indictment for burglary of a railroad car need not use the term "burglariously," because the offense alleged was not a common law burglary, comes the conclusion: "So in this case the act charged is made burglary only by the statute and, being a statutory offense, an indictment for it need not charge the acts to have been either feloniously or burglariously done. The indictment charged the offense in the language of the statute, and so plainly that its nature could be easily understood by the jury, and this is sufficient without the use of adverbs or epithets." This conclusion is supported, further, by the citation of certain Iowa cases, under a general statute, not unlike our own, as to the sufficiency of the indictment, holding that "feloniously' is not essential in charging a felony, or "burglariously" in charging a burglary.

The opinion in the James Connors case, starting from narrower premises, reaches what might be interpreted as a broader conclusion. "It is conceded," the court says here, "that the indictment is drawn substantially in the language of section 36. . . . An indictment for a statutory offense is sufficient if it sets forth the offense in the terms and language of the statute creating the same or so plainly that its nature may be readily understood by the jury. The indictment in this record answers these requirements and states the offense in the language of the statute, and there is nothing shown in this record to indicate in any way that the offense charged in the indictment was not easily understood by all parties concerned, including the jury." Ervington v. People, supra, is distinguished on the ground that it was construed in Bolen v. People, supra, "as merely holding that the crime there charged was a felony at common law." Furthermore, "it would be as illogical and unreasonable to hold that in an indictment the word 'feloniously' is necessary to charge the crime of burglary, as it would be to hold that the many offenses which our statute characterizes as being burglary, but which are not covered by the common law definition of the crime of burglary, could not be punished under our statute with its special wording. As an illustration: this very crime of burglary of a railroad car would not have been a burglary at common law."

It is difficult to say with any degree of precision just what the circle of offenses is which these cases recognize as exempt from the requirement in question. Statutory offenses, certainly, but statutory offenses in what sense? Not statutory felonies in the sense of all

felonies provided for by statute, for these being the only felonies recognized in this State, this would be to dispense with the requirement altogether, a result demanded by the premises of the Matthias Connors opinion, but negatived by its conservative conclusion. Statutory offenses, in the sense of offenses created by statute, the circle does include, both under former decision and the actual conclusion in the Matthias Connors case. That it also includes such offenses, being felonies at common law, as are so defined or described in the statute as to render sufficient an indictment in the terms and language of the statute seems implied in the 'ratio decidendi' of the James Connors case. So far as we are aware, there never has been an authoritative enumeration of these offenses, but, in addition to burglary, they undoubtedly include arson (People v. Covitz 262 Ill. 514), mayhem (People v. Yuskauskas 268 Ill. 328), rape (Johnson v. People 202 Ill. 53), and the crime against nature (People v. Honselman 168 Ill. 172). In this view, there is still left an undefined margin of offenses, provided for by statute, but felonies at common law, to which the old rule requiring the use of "feloniously" will continue to be applicable.

Doubt and difficulty will persist, in the present regard, until there is a clear-cut decision, following the premises laid down in the Matthias Connors case, that "feloniously" is no longer needed in any case. The validity of these premises is abundantly demonstrable. If, for the purposes of classification, the legislature, instead of marking off "felonies" from "misdemeanors," had chosen to divide all crimes into the two classes of "indictable" and "nonindictable" offenses, the one to be prosecuted only by indictment, the other only by complaint or information, or, under the influence of Continental nomenclature, had distinguished between "delicts" and "contraventions," would the traditions of the common law require us to allege a major crime as having been committed "indictably," in the one case, or "delictually," in the other? Yet there is no difference in principle between this and the existing case. It was desirable, for various reasons, to set apart the greater crimes from the lesser. This was done by drawing a line between those offenses which were punishable by death or penitentiary imprisonment and those which were punishable otherwise. It was also desirable to name each of these classes. For the major crimes, therefore, the term "felony" was adopted, not because the thing which it now designated was the same thing which it designated at common law, but simply because it was the word familiar to the legislature as applicable to what the common law chose to regard as the major crimes. There was nothing in the word itself denoting or connoting the particular characteristics or, rather, consequences by which a particular offense was brought within the statutory class.

What was it exactly that a pleader meant, at common law,

2. That is to say, according to the construction placed upon Sec. 5, Div. II, Criminal Code, “absolutely" so punishable. Lamkin v. People 94 Ill. 501. An offense made punishable by penitentiary imprisonment with any alternative is thus deemed a misdemeanor. Ibid.; Herman v. People 131 Ill. 594.

when he alleged that an act was "feloniously" done? "Felony," according to Coke, "'ex vi termini significat quodlibet capitale crimen felleo animo perpetratum,' in which sense murder is said to be done 'per feloniam,' and is so appropriated by law as 'felonice' cannot be expressed by any other word" (Co. Litt. 391a). That is to say, the word imports a capital crime committed with the kind of mind implied by the adjective "felleus." Blackstone, on the other hand, prefers the etymology of Spelman which derives the term from "fee" meaning fief or feud and "lon" meaning price or value, because of the forfeiture of property incident to conviction (Comm. IV 95). But it would appear that modern scholars are inclined to hold against Blackstone. "We are now told that Coke's guess may be right, after all, and that 'of the many conjectures proposed, the most probable is that "fellone-m" is a derivative of the Latin "fell-," "fel," gall, the original sense being one who is full of bitterness or venom,' for gall and venom were closely associated in the popular mind. When the adjective "felon" first appears it seems to mean cruel, fierce, wicked, base. Occasionally we may hear in it a note of admiration, for fierceness may shade off into laudable courage, but in general it is as bad a word as you can give to man or thing, and it will stand equally well for many kinds of badness, for ferocity, cowardice, craft." (Pollock & Maitland, History of English Law II 465.) Again "we may see that in Bracton's day the word imports a certain gravity in the harm done and a certain wickedness in the doer of it." (Id. p. 467.) And we may also see, in the same period, that the word implies an offense falling within the royal jurisdiction. "Bracton, De Corona, ff. 145, 154, states that neither the sheriff nor the lord of a franchise (except under special grant) could take cognizance of charges laid against the peace of the king or as felonies ('in felonia'). This rule probably explains the presence in an indictment of the word 'feloniously' and of the conclusion against the peace, etc." (W. F. Craies in Encyc. Laws of Eng. VI 40.)

These two implications are found reflected in the sense which the common law term bears in later times. For, on the one hand, it comes to signify definitely a condition of mind-'mens rea,' guilty intention, purpose: "Doing an act feloniously is doing it 'malo animo,' viz., with malice." Serjeant Burland in Allen v. Inhabitants 3 Wils 318. "As to the meaning of the term 'feloniously,'" says Hawkins, J., in Regina v. Tolson 23 Q. B. D. 168, 193-194, "I do not think I can better define my understanding of it when introduced into an indictment as descriptive of the act charged than by saying that I look upon it as meaning that such act was done with a mind bent on doing that which is wrong or, as it has sometimes been said, with a guilty mind." But, manifestly, this does not state the whole of its meaning. As we know, the term "felony" comes, in the common law, to denote a group of crimes punishable, in general, by death and forfeiture of property. A guilty mind may be necessary to constitute a misdemeanor, but in the charge it is