mutation of his punishment, even to caftration. The legiflature granted his requeft, and the criminal underwent an operation, which effectually guards against a repetition of the offence, and would be a very proper punishment in all cafes, were it not for the ridicule attending it. I shall here treat of the crime against nature, or the crime not to be named, as fome writers modeftly exprefs themfelves. In confidering a crime, which reflects fuch difgrace upon human nature, every perfon will be filled with horror and difguft. But to compleat our view of criminal law, it is neceflary to attend to the fubject, however difagreeable, and we fhall treat of it with the umoft decency. Sodomy, or buggery is the unnatural connection between the human being and a brute. The ftatute inflicts the punishment of death on the offender, and to infpire the deepest deteftation of the deed, directs that the very beast fhall be flain and buried. Ifhould have hardly thought it poffible, that a human being could be fo vile and depraved, as to commit this crime, had I not been prefent at the trial of a man indicted for it, and against whom the most explicit and convincing proof was adduced: but who escaped conviction from the circumftance, that no two witneffes faw him at the fame time, tho fundry faw him at different times feparately. The jury fuppofed that there must be two witnesses at the fame time, to the fame act, to comport with the statute, requiring the teftimony of two or three witneflès, or that which is equivalent, to take away the life of man: but it is evident that this atrocious offender efcaped that punishment which he richly merited, from a misapprehenfion of the jury respecting the law; for it is clear that the teftimony of five or fix witnefles, to different facts of the fame nature, tho they faw them feparately, must be equivalent, to the teftamony of two witnelles who faw the fame fact together. Of the fame name, is the crime of carnal connection between huThe ftatute enacts, that if any man man beings against nature. lie with mankind, as with woman kind, both shall be put to death, unless one of the parties was forced, or under the age of fifteen years. This crime, tho repugnant to every fentiment of decency and - Satutes, 66. 1 Hawk. P. C. é. and delicacy, is very prevalent in corrupt and debauched countries, where the low pleafures of fenfuality, and luxury, have depraved the mind, and degraded the appetite below the brutal creation. Our modeft ancestors, it feems by the diction of the law, had no idea that a man would commit this crime with a woman, and therefore have not comprehended it in the statute. But in countries, where men have acquired a brutal relish for animal pleafure, this crime is frequently committed-and might here by force of common law be punished with death. The indictment must alledge that he had the venereal act, and carnally knew 0 Notwithstanding the difguft, and horror, with which we treat of this abominable crime, we find that the elegant and modeft Virgil, entertained very different ideas on the fubject. He made the paffion of a fhepherd for a beautiful boy, the foundation of an eclogue, and Corydon fighs for Alexis, with all the fondness of a lover, and in all the harmony of paftoral numbers. Tho the example of other Roman poets and the manners of the age, may in fome measure excufe the choice of the fubject, yet it is ftriking evidence, of the depravity, corruption, and debauchery of the Romans at that period, that they could relifh a poem, which celebrated an unnatural paffion. CHAPTER FITH. OF MAYHEM AND ARSON, MAYHEM according to the principles of the common law, is the violently depriving a perfon of the use of fuch of his members as may render him the lefs able in fighting, either to defend hinfelf or annoy his adverfary. This law was probably adopted in the heroic ages when war was confidered as the noblest employment: but when our ancestors formed their criminal code, the ardor of 1.eroifin feems to have abated, and it is enacted, if any perfon on purpose, and of malice aforethought, and by lying in wait, fhall cut, or difable the tongue, or put out an eye, or cut off any of the privy members, or fhall be aiding or affifting therein, fhall Statutes, 67. Virg. Eclogue, il. fufer fuffer death. Any wounding of an inferior degree, is confidered as a battery, and may be puifhed as a breach of the peace, and the party injured, recompenced in damages, according to the nature and aggravation of the injury. ? The crime of arfon is constituted and defined by statute. That if any perfon of the age of fixteen years or more, shall wilfully, and of purpose burn any dwelling house, barn, or out house, he shall be put to death, if any prejudice or hazard happen to the life of any perfon thereby. If part of a building be burned, and then extinguifhed, it is arfon. If any perfon fhall wilfully and maliciously burn or destroy, or attempt to burn and destroy any public magazine or stores, or if any master or feaman, in a veffel belonging to the United States or this ftate, fhall burn and deftroy it, or in time of war, betray, or deliver it to the enemy, he shall suffer death: but in time of peace, the fuperior court have difcretionary power to punish by whipping, not exceeding forty ftripes, banishment, imprisonment not exceeding ten years, and forfeitute of cftate. The eftablifhment of the government of the United States and the laws enacted by Con. grefs, will render this laft law unnecessary. CHAPTER SIXTH. OF CRIMES PUNISHABLE BY IMPRISONMENT IN NEW. GATE. THESE HESE are, I. Robbery. II. Burglary. III. Forgery. IV. Counterfeiting. V. Horfe-ftealing. VI. Arfon. VII. Attempting to commit a rape. VIII. Perjury. IX. Aiding to escape from New-Gate prifon. Robbery is the forcible taking of goods or money, to any value from the perfon of another, by putting him in fear. The punishment forthis crime has been pointed out by statute; but we muft have recourfe to the common law for its definition. The requifites to conflitute this crime are, 1. There must be an actual taking. A mere attempt to rob, is punishable only as a highhanded breach of the peace. If the offender once take the thing, tho 2 Statutes 66. - Ibid. laid 4 Black. Com. 242. 1 Ilawk. P. C. 95. tho he return it again, it is robbery. It is not ftrictly neceffa ry that the thing be taken from the perfon; if it be done in his prefence, it is fufficient. Thus when a robber by threats and violence puts a man in fear, and drives away his fheep or cattle before his face. So where feveral in a gang commit a robbery, and one only takes the money, all are guilty in judgment of law. So if they fail of an intended prize, and one ride from the reft, and commit a robbery out of their view, and without their knowledge, all are guilty on account of the general intent. 2. Property of the leaft value when thus taken, is fufficient to conftitute the crime of robbery. 3. The taking must be by force, or by a previous putting in fear, which conftitutes the aggravated nature of the of fence. If the property be taken forcibly and against confent, without exciting fear; as knocking a man down and taking his money while he is fenfelefs, this is robbery tho there is no fear. The putting in fear need not arife from any great circumstances of terror: it is sufficient that so much force and threatning were made use of as to create an apprehenfion of danger, and compel a perfon to part with his property. If a perfon with a drawn fword begs alms, and a perfon apprehensive of danger gives, this is robbery. II. Burglary is defined to be the breaking and entering into a dwelling houfe, or fhop in the night time, with an intent to steal, or commit fome high crime. To illuftrate this fubject, we must confider the time, the place, the manner and the intent. I. "The time must be in the night, when there is not sufficient day light to difcern a man's face. If there be moon light, so that a perfon can be known, it will make no difference; for the malignity of the offence arifes from the circumftance of committing it in the night, when fleep has difarmed the owner of the powers of vigilance and defence. 2. The place according to the common law, must be a manfion houfe; if it be a private houfe, a diflant barn, or the like, it is not under the fame privilege; for the breaking open where no man refides, is not accompanied with the fame circumftances of midnight terror. A houfe in which a man fometimes refides, and Las ✰ Statutes, 17. Hawk. P. C. 101. S s 3 Inft. 63, # 4 Black. Com. 224. only r H. P. C 50. 506. Fult, 770 only left it for a feason, with an intent to return again, is a place where burglary may be committed, tho no perfon was in it, at the time the fact was done. If a barn, ftable, ware-house or any out house be adjoining to, and parcel of the manfion house, tho not under the fame roof, a burglary may be committed in them, for the capital houfe protects all the appurtenances, if within the home-stall.— A chamber in a college, or a room hired in a private house, are the manfion houfes of the poffeffors, if they actually lodge there. Burglary cannot be committed in a booth, or tent, erected in a fair or market, tho the owner lodge there, becaufe the law refpects only permanent edifices. Burglary may also be committed in a church. The statute not only regards dwelling houses, but has gone beyond the common law, and makes it burglary to break into a fhop, where goods, wares, and merchandize are deposited. 3. The Manner must be both by entering and breaking, tho this need not be done at the fame time: for a perfon may cut a hole one night and enter the next. There must be an actual breaking, a fubftantial and forcible irruption. If a man enters a houfe by a door, which he finds open, or thro a hole which was made there before, and steals goods, or draws any thing out at a door or window, which was open before, or enters a house by the door in the day time, and lies there till night, and then steals and goes away without breaking any part of the house, he is not guilty of burglary. But he would have been guilty, if he had opened a window, picked a lock, or opened it with a key, lifted a latch, or any way unloofed the fastening, which the owner had provided and then entered, or having entered by a door or window, which he found open, or having lain in the houfe by the owner's confent, and then unlatches a door, or opens a door or window to go out of the house, or comes down the chimney, he is guilty of burglary. To knock at a door and on its being opened to rufh in, or under pretence of taking lodgings, to fall upon the landlord, and rob him, or to procure a conftable to gain admittance to search for any thing, and then to bind the conftable and rob the house, have been confidered burglaries, the there was no actual breaking. If a fervant opens and enters his master's chamber with a criminal defigu, y 4 Black. 226, 227. 1 Hawk. P. C. 102. I Hal. P. C. 552. or |