33 CHAPTER IV. MAYHEM, RAPE, AND SODOMY. MAYHEM is an aggravated species of wounding, and may admit of this definition: the deprivation of those members which are necessary to a man se defendendo. Under the first clause of Sec. 6. of the statute of 22d April 1794, an indictment, in which the words "lying in wait" are omitted, is insufficient; and it is so under the second clause, if the word voluntary is excluded. For conviction under the first clause, it is only necessary that there be a general intent to maim and disfigure; but under the second clause, a specific intent to pull or put out the eye must be satisfactorily exhibited to the jury. The malice and lying in wait may be matter of inference from circumstances. To convict for feloniously assaulting, and beating, with a design to disfigure, stronger circumstances of malice aforethought must be proved, than on an indictment for murder. Positive evidence of such a design must be given. Considered as a crime, it is punished with death by the English law. I cannot discover that it was distinguished from severe battery by William Penn, who perhaps deemed it unnecessary to provide a particular punishment for an offence that was not likely, in an infant colony, to be of very frequent occurrence. However this may be, by the reviving act of 1718, it was capitally punished, and so remained till 1794, when it partook of the clemency that was extended to a number of offences by that statute. Confinement at hard labour for not less than two, nor more than ten years, and the payment of a fine not exceeding one thousand dollars, (three-fourths whereof going to the party injured,) form the punishment at this day by the statute last mentioned. Rape, raptus mulierum, was merely punished with fine and compulsion to marry by the institution of Moses, unless the female was affianced to another, and then it was death. Perhaps even at this day, the majority of communities inflict the severe penalty of death for this offence, which, though displaying a hardihood and villany truly detestable, argues not the entire destitution of virtuous feelings. "It may be perpetrated in the phrenzy of desire," as is well observed by Mr. Bradford, but it surely betrays no incorrigible depravity, which the penalty of death presumes. The civil lawb annexes death and confiscation to this crime, under which is included abduction from a female's friends. The Saxon and Scandinavian constitutions inflicted death, and the English lawd pursues it with the same relentless rigour. But William Penn's "Great Law" punished it with the forfeiture of a third of the offender's estate to the female, whipping, and one year's imprisonment. The act "for the advancement of justice, &c." introduced after his death, again made it punishable in this state by the statutes of Great Britain. Before the passage of the act of 1794, which took away this sanguinary penalty, a noble example was placed for the imitation of Pennsylvania by the Grand Duke of Tuscany, who had repealed the punishment of death in his dominions, substituting imprisonment measured by the circumstances of the case. This was not unattended to by our Legislature, who prescribed a punishment, humane, but not deficient in wholesome severity. Imprisonment not less than ten nor more than twenty-one years, to be spent in hard labour and in solitude, was inflicted and so remains. We come now to speak of an offence whose unblushing turpitude and shameless guilt admits neither of apology nor palliation. The indictments of the old English law which Sir William Blackstone quotes, with an inexpressible abhorrence of the disgusting crime, have too much delicacy to mention it: "peccatum illud horribile, inter christianos non nominandum." It is known by the name of Sodomy, or the crime against nature. If arrived at discretion, both "agentes et consentientes pari pœna plectantur."h g 22 Deut. c. 25. d 4 Bl. Com. 212. d 4 Bl. Com. 212. e Bradford's Enquiry, p. 30. f See act 1794. 3 Smith, 187. Sec. 4. g 4 Bl. Com. 215. h3 Inst. 59. We read that some philosophers doubt the existence of so unnatural a crime; but the lamentable truth is, that in Italy it is not uncommon, and among the Greeks and Romans it was by no means unknown. And it is a truth no less sad and sickening, that its perpetration in prisons is frequent, daring, and open. The punishment of this offensive crime, in most countries, has rather been measured by the detestation which mankind feel at its commission, than the principles of sound policy or immutable justice. To prove this I have only to quote these words of Beccaria; their truth he amply demonstrates: "To every crime, which, from its nature, must frequently remain unpunished, the punishment is an incentive." Besides, when the penalty is graduated beyond the offence, on the same principle, an additional inducement is presented. And can the gratification of lechery on the one hand, and equally criminal passiveness on the other, justify the taking of that life conferred by the Creator? Influenced by similar reasons we may presume were Penn, who inflicted whipping, one half year's imprisonment, and the forfeiture of one-third the delinquent's estate; and the Legislature, who, in the early period of 1786, took the severe penalty of death from robbery, burglary, and this crime. The act of 1796, incorporating the provisions of that statute, imposed a servitude not exceeding ten years, and the forfeiture of lands and tenements, goods and chattels. In 1795, the period of this statute having nearly expired, these pe m i Virgil's beautiful pastoral, Alexis, though said to be nothing more than a description of Platonic love, certainly contains sentiments too passionate for such a title. Witness this passage : "Florentem cytisum sequitur lasciva capella Te Corydon, O Alexi!" Again, at the 68th verse: “Me tamen urit amor. Quis enim modus adsit amori ? Ah, Corydon, Corydon; quæ te dementia cepit? But I fear that the establishment of the notion that these are the effusions of illicit feeling, will no way exalt the character of Virgil; for we are told that Corydon was drawn for himself, and Alexis is a young slave of his patron, Maecenas, to which Martial in these lines evidently alludes: "Accipe divitias, et vatum maximus esto, k See 4 Bl. Com. 215, where, in his zeal for its requital, he asserts that the divine law, reason, and nature, combine to denounce it capital. 1 See Beccaria on Crimes, translated by E. D. Ingraham, Esq. p. 119. m See the Statute 2 Smith. 531. nalties were continued three years longer, and were finally perpetuiated in 1799. Persons accused of this offence, or of robbery, or burglary, were bailable by the Supreme Court only to the year 1806, when that privilege was conferred on the Court of Common Pleas." CHAPTER V. OF ARSON AND BURGLARY. As all the crimes affecting the persons of individuals which we proposed to consider, have received some attention, agreeably to the arrangement adopted, those felonies injurious to the habitations of individuals now demand a brief historical notice. These are two, arson and burglary. Arson, ab ardendo, is defined to be, the malicious and wilful burning of a house or an outhouse of another man.° It is supposed to be perpetrated from a motive of revenge, and, as its commission is generally under the protection of night, the torch of the incendiary, and the weapon of the assassin, perform equally honourable and courageous offices. Conflagrations are often not confined to the destruction of property, nor do they only injure the immediate objects of resentment, but frequently involve the fate of the helpless and the innocent. Being too the offspring of a pusillanimous revenge, and not only depriving the real owner of his possessions, but all mankind of the benefit by their virtual annihilation, it would seem that a severe infliction for this offence was required, if severity of punishment will suppress crime. Accordingly, arson is not the object of peculiar clemency by the laws of any country. The Scandinavian constitutions, agreeably to Stiernhook, punished it according to the lex talionis, with burning the incendiary n 4 Smith. 324. p Stiernh. de Jure Goth. 1. 3. c. 6. to death. And this was the punishment in England in the reign of Edward the First; but is now punished by hanging, which is the kind of death at present suffered by all capital felons. In the penal code of Napoleon, menaces, aggravated by ordering money, to set fire to a dwelling house, was punished by hard labour for life or deportation: but the burning of writings of public authority or importance, shall be confinement, (la reclusion;) and those of a private nature by incarceration, it is presumable for a shorter period, since to this a fine of one hundred and fifty francs is superadded," passing the different natures of the injuries. The cautious secrecy and difficult demonstration of this flagitious crime, have screened, perhaps, the majority of offenders from their sacrifice to the laws. This difficulty has ever been known to increase, or diminish, in proportion to the severity or lenity of punishment. Impunity has, in most instances, been the consequence, either by the absence of violent presumptive proof, which has induced an acquittal, or, in case of conviction, by the extension of the executive's prerogative.t This offence was capital in Pennsylvania, except during the jurisdiction of Penn's "Great Law," to the year 1794, when that penalty was exchanged for a fine not exceeding two thousand dollars, and imprisonment at hard labour for a period not exceeding twelve years. The punishment annexed by Penn to arson, was the forfeiture of double the value of the property consumed, one year's imprisonment, and corporal pain at the Court's discretion. To constitute this offence by the act of 1718, a few buildings particularly designated must be burned," otherwise it was indictable only as malicious burning. Under this statute there had been contradictory adjudications as to the benefit of clergy; it being first held felony without the benefit, and was subsequently determined to be clergyable. Benefit of clergy was expressly taken away by the statute of 1767, which likewise increased the number and kinds of buildings, the burning of which was to be deemed arson. Thus severity of infliction and multiplication of acts denominated arson, in this statute, contended for the mastery. The kinds of buildings were further extended in 1772, when it was declared that burning q 4 Bl. Com. 222. r See Art. 305 and 436. s See Art. 439. t Bradford, p. $1.2. u See 13. Sec. 1. Smith. 115, |