required to receive the said E into your jail and custody, and her safely keep, till she shall be thence delivered by due course of law. Given under my hand and seal, at, &c. this in the year day of The above form may easily be varied to suit the case of a man committed for marrying another woman, his former and lawful wife being alive. (D) Indictment for having two wives at one and the same time. County, to wit. of in the year yeoman, on the day The jurors for the commonwealth, upon their oaths, do present, That A O, late of the county of day at the county of did marry one said A W, then and there had for his O, afterwards, to wit, on the with force and arms, at the said county of feloniously did marry and take to wife one B W, spinster, and to the said B W was then and there married (the said A W, his former wive, being then living and in full life) against the form of the statute in such case made and provided, and against the peace and dignity of the commonwealth. And the jurors aforesaid, upon their oaths aforesaid, do further present, That the said A O, afterwards, to wit, on the in the year last aforesaid, was apprehended and taken in the said county of for the felony aforesaid. day of (E) Indictment for having two husbands, at one and the same time. county, to wit. The jurors for the commonwealth, upon their oaths, do present, That Elizabeth, the wife of A B, late of the county of planter, on the day of in the year of our Lord being then married, and then the wife of the said A B, with force and arms, at the county of did feloniously marry and take to husband C D, of (the said A B, her husband, being then alive) against the form of the statute in such case made and provided, and against the peace and dignity of the commonwealth. aforesaid, upon their oath aforesaid, do further present, Elizabeth heretofore, to wit, on the day of And the jurors That the said in the year at the county of by the name of Elizabeth C, did marry the said A B, and him the said A B then and there had for her husband; and that she the said Elizabeth being married, and the wife of the said A B, afterwards, to wit, on the in the year with force and arms, at the said county, feloniously did marry and take day of This part may be left out, when the prisoner is taken where the felony is committed. to her husband the said C D, of (the said A B, her former husband, being then alive) against the form of the statute in such case made and provided, and against the peace and dignity of the commonwealth. NOTE ...In an indictment for bigamy a marriage in fact must be proved, presumption by cohabitation, &c. is not sufficient. 4 Burr. 2059. BLASPHEMY. IT must afford real pleasure to every friend to civil and religious liberty, to be informed that the acts which have hitherto, by law, constituted the crime of blasphemy, are now considered as mere specula tive topics, which every citizen is authorised freely to discuss; and that the several laws imposing such severe penalties on the offenders, which have disgraced the code of almost every civilized nation in Europe, and were implicitly adopted in Virginia, prior to the American revolution, are now entirely done away by that bulwark of our religious rights, the act establishing religious freedom: an act which deserves to be translated into every language in the world, and to be deeply impressed on the mind of every citizen. The crime of blasphemy then, as it has been heretofore designated by law, no longer exists, as a civil offence. See Bill of Rights of Virginia, Art. 16. The Act for establishing religious freedom. 1 Rev. Code, p. 29. See also, 1 Rev. Code, p. 388. Const. U. S. Art. 6. Amend. Const. U. S. Art. 3. BREAD, see FLOUR, &c. BRIBERY, see EXTORTION. BUGGERY. 1. BUGGERY, from the Italian Bugarone (the vice being said to have been first introduced into England by the Lombards from Italy) is defined by lord Coke to be a detestable and abominable sin amongst christians, not to be named, committed by carnal knowledge, against the ordinance of the creator, and order of nature, by mankind with mankind, or with brute beast, or by woman kind with brute breast (3 Inst. 58) and in support of the last part of this definition, he mentions the case of a great lady in England, who cohabited with a Baboon, and conceived by it. See 3 Inst. 59. 2. To constitute this offence, there must be penetratio, that is, res in re, either with mankind, or with beast, but the least penetration maketh it carnal knowledge. 3 Inst, 59. Emissio seminis maketh it not buggery, but is an evidence, in case of buggery, of penetration. Ibid. 5. In this offence there may be accessories both before and after the fact; but those who are present, aiding and abetting any to do the act, though the offence be personal, and to be done by one only, are, together with the one who doth the act, principals. (Ibid. & 1 Hale 670.) Accessories before and after were not excluded from clergy. 1 Hale 670. 4. If the party buggered be within the age of discretion (which is generally reckoned the age of fourteen) it is no felony in him, but in the agent only. But if both be of the age of discretion, it is felony in the agent and consentient. 3 Inst. 59. 1 Hale 670. 5. Buggery was formerly punished with death, without benefit of clergy (see Rev. Code, p. 179) but it being an offence thus, punishable, and not specially provided for in the act to amend the penal laws of this commonwealth, passed in 1796 (see 1 Rev. Code, p. 355) it is now, by virtue of the act of 1799 (1 Rev. Code, p. 402) punishable by confinement in the penitentiary, for a period not less than one, nor more than ten years. For the honour of human nature, it must be observed, that this crime is seldom committed. Should a magistrate, however, have occasion to act in his official character, in such cases, he may easily adapt the precedents of warrants, &c. to be found under title CRIMINALS, to the case of Buggery, observing to describe the offence, as in the following indictment. Indictment for Buggery. County, to wit. The jurors for the commonwealth, for, &c. upon their oath do present, that of the county of aforesaid, labourer, not having the fear of God before his eyes, nor regarding the order of nature, but being moved and seduced by the instigation of the devil, on the arms, at the county aforesaid, in and upon* one with force and a youth about the age of years, then and there being, feloniously did make an assault, and then and there feloniously, wickedly, diabolically, and against the order of nature, had a venereal affair with the said and then and there carnally knew the said and then and there, feloniously, wickedly, and diabolically, and against the order of nature, with the said did commit that detestable and abominable crime of buggery (not to be named amongst christians) to the great displeasure of Almighty God, to the great scandal of all human kind, against the form of the statute in such case made and provided, and against the peace and dignity of the commonwealth. If for bestiality, say, upon a certain mare, cow, &c. (as the case may be) feloniously, wickedly, diabolically, &c. BURGLARY. I. What is burglary. II. How it is punished. I. WHAT IS BURGLARY. 1. THE word Burglary is thought to have been brought into England by the Saxons, from Germany, in whose language burg signifies a house, and larron a thief, probably from the Latin latro. 2. Burglary is a felony at common law, in breaking and entering the mansion-house of another, in the night, with intent to commit some felony within the same, whether the felonious intent be executed or Summ. 79. 2 East's Cr. L. 484. not. BREAKING.....Every entrance into the house by a trespasser is not a breaking in this case, but there must be an actual breaking. As if the door of a mansion-house stand open, and the thief enter, this is not a breaking. So it is, if the window of the house be open, and a thief with a hook or other engine draweth out some of the goods of the owner, this is no burglary, because there is no actual breaking of the house. But if the thief breaketh the glass of the window, and with a hook or other engine draweth out some of the goods of the owner, this is burglary, for there was an actual breaking of the house. 3 Inst. 64. The breaking and entry need not be both done at once; for, if a hole be broken one night, and the same breakers enter the next night through the same, they are burglars. 4 Bl. Com. 226. If a thief come down a chimney, it is a burglarious entry, because it is as much inclosed as the nature of the thing will admit of. 4 Bl. Com. 226. 1 East. Cr. L. 485. The breaking a window, taking a pane of glass out, by drawing or bending the nails or other fastening, the drawing a latch where the door is not otherwise fastened, picking open a lock with a false key, putting back the lock of a door or fastening of a window with an instrument, turning the key where the door is locked on the inside, or unloosing any other fastening which the owner has provided; are all instances of breaking. 1 Hale 552. 1 East. Cr. L. 487. So also, to knock at a door, and upon opening it, to rush in with a felonious intent, or, under pretence of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house; all these entries have been held burglarious, though there was no actual breaking: for the law will not suffer itself to be trifled with by such evasions, especially under the colour of legal process. 4 Bl. Com. 226. So, if a person meditating a robbery raise the hue and cry, and bring the constable to the house, to whom the owner opens the door, and then the thief enters, and binds the constable and robs the house, it is burglary. 1 East. Cr. L. 485. So, where a person knowing that the family were absent from the house, prevailed on the boy who kept the key to open the door, under the promise of a pot of ale; and being let into the house, sent the boy for the ale, and while he was gone robbed the house. This being done in the night, it was held burglary. 1 East. Cr. L. 485. And so, if a servant opens and enters his master's chamber door with a felonious intent; or if any other person, lodging in the same house, or in a public inn, opens and enters another's door, with such evil intent, it is burglary. Nay, if the servant conspires with a robber, and lets him into the house by night, this is burglary in both; for the servant is doing an unlawful act, and the opportunity afforded him, of doing it with greater ease, rather aggravates than extenuates the guilt. 4 Bl. Com. 227. A servant lay in one part of the house and his master in another; between them was a door at the foot of the stairs, which was latched. The servant, in the night, drew the latch and entered the master's chamber, in order to murder him; held burglary. 1 East. Cr. L. 488. So, where one of the servants in the house, opened his lady's chamber door (which was fastened with a brass bolt) with design to commit a rape; it was ruled to be burglary. Stra. 481. So, where a hatch-way to an upper floor was inclosed by folding doors, which fell over it, and remained closed by their own weight, but without any interior fastening, it was held a breaking to raise them; and the prisoner entering thereby a mill, which was part of the mansion-house, it was ruled burglary. 1 East. Cr. L. 487. If the thief enter by the open door, and in the house break a trunk or box which was locked, this is no breaking to constitute burglary, because such things are no part of the house. 1 East. Cr. L. 488. Fast. 108. Kely. 59. At a meeting of the judges upon a special verdict, in January, 1690, they were divided upon the question, whether breaking open the door of a cupboard let into the wall of the house was burglary or no. Upon which Mr. Foster observes, that with respect to cupboards, presses, lockers, and other fixtures of the like kind, it seemeth that, in favour of life, a distinction ought to be made between cases relating to mere property, and such wherein life is concerned. In questions between the heir or devisee, and the executor, those fixture smay with propriety enough be considered as annexed to and parts of the freehold. The law will presume, that it was the intention of the owner, under whose bounty the executor claims, that they should be so considered; to the end that the house might remain to those who by operation of law, or by his bequest, should become entitled to it, in the same plight he put it, or should leave it, entire and undefaced. But in capital cases, it seemeth, that such fixtures, which merely supply the place of chests |