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OF OFFENCES AGAINST THE HABITATIONS
THE only two offences, that more immediately affect the habitations of individuals or private subjects, are those of arson and burglary.
1. Arson, ab ardendo, is the malicious and wilful burning the house or out-house of another man. This is an offence of very great malignity, and much more pernicious to the public than simple theft: because, first, it is an offence against that right of habitation, which is acquired by the law of nature as well as by the laws of society; next, because of the terror and confusion that necessarily attend it: and, lastly, because in simple theft the thing stolen only changes its master, but still remains in esse for the benefit of the public, whereas by burning the very substance is absolutely destroyed. It is also frequently more destructive than murder itself, of which too it is often the cause: since murder, atrocious as it is, seldom extends beyond the felonious act designed: whereas fire too frequently involves in the common calamity persons unknown to the incendiary, and not intended to be hurt by him, and friends as well as enemies. For which reason the civil law (a) punishes with death such as maliciously set fire to houses in towns, and contiguous to others; but is more merciful to such as only fire a cottage, or house standing by itself.
Our English law also distinguishes with much accuracy upon this  crime. And therefore we will inquire, first, what is such a house as may be the subject of this offence; next, wherein the offence itself consists, or what amounts to a burning of such house; and lastly, how the offence is punished.
1. Not only the bare dwelling-house, but all out-houses that are parcel thereof, though not contiguous thereto, nor under the same roof, as barns and stables, may be the subject of arson. (b) And this by the common law which also accounted it felony to burn a single barn in the field, if filled with hay or corn, though not parcel of the dwelling-house. (c) The burning of a stack of corn was anciently likewise accounted arson. (d) And indeed all the niceties and distinctions which we meet with in our books, concerning what shall, or shall not, amount to arson, seem now to be taken away by a variety of statutes; which will be mentioned in the next chapter, and have made the punishment of wilful burning equally extensive as the mischief. The offence of arson (strictly so called) may be committed by wilfully setting fire to one's own house, provided one's neighbour's house is thereby also burnt; but if no mischief is done but to one's own, it does not amount to felony, though the fire was kindled with intent to burn another's. (e) For by the common law no intention to commit a felony amounts to the same crime; thongh it does, in some cases, by particular statutes. However such wilful firing one's own house, in a town,
bi Hal. P. C. 567.
a Ff. 48. 19. 28. § 12.
e Cro. Car. 377. 1 Jon. 351.
d 1 Hawk. P. C. 105.
is a high misdemesnor, and punishable by fine, imprisonment, pillory, and perpetual sureties for the good behaviour. (f)' And if a landlord or reversioner sets fire to his own house, of which another is in possession under a lease from himself or from those whose estate he hath, it shall be accounted arson; for during the lease the house is the property of the tenant. (g) 2
2. As to what shall be said to be a burning, so as to amount to arson, a bare intent, or attempt to do it, by actually setting fire to a house, unless it absolutely burns, does not fall within the description of incendit et combussit; which were words necessary, in the days of law-latin, to all indictments of this sort. But the burning and consuming of any part is sufficient; though the fire be afterwards extinguished. (h) Also it must be a malicious burning: otherwise it is only a trespass: and therefore no negligence or mischance amounts to it. For which reason, though an unqualified person, by shooting with a gun, happens to set fire to the thatch of a house, this sir Matthew Hale determines not to be felony, contrary to the opinion of former writers. (i) But by statute 6 Ann. c. 31. any ser. vant, negligently setting fire to a house or out-house, shall forfeit 1001. or be sent to the house of correction for eighteen months; in the same manner as the Roman law directed, " eos, qui negligenter ignes apud se habu"erint, fustibus vel flagellis caedi." (k)
(1) It has been decided that an attempt, or preparation, by a man to set fire to his own house in a town, though the fire be never kindled, is a misdemeanor. And that every attempt to commit a felony is a misdemeanor; and, in general, an attempt to commit a misdemeanor is an offence of the same nature. Cald. 397. 6 East, 464. 1 Wils. 139. So also an indictment or solicitation to commit a crime is a misdemeanor. R. v. Higgins, 2 East, 5.
Voluntas reputatur pro facto is still true, both in treason and misdemeanor; but the intention in both must be manifested by an open act. Men cannot be punished by the law for the thoughts of the mind, however wicked they may be: even a resolution to commit high treason, evidenced only by a confession, without any attempt to carry into effect, is not punishable by the law of England. The principle of these cases is well illustrated by lord Coke, who, after treating of single combats and affrays, says, "If any subject challenge another to fight, this is also an offence, be"fore any combat be performed, and punishable by law, for quando aliquid prohibetur, proki. "betur et omne, per quod devenitur ad illud." 3 Inst. 158. And therefore he who carries the challenge, knowing that it is a challenge, is also guilty of a misdemeanor; and he who designedly attempts to provoke another to fight or to send a challenge is guilty of the saine offence.-Christian's note.
(2) It has been determined, that if a tenant set fire to the house of his landlord before the tenancy expires, he is not guilty of arson. Leach, 195, 209. But in consequence of the general adoption of insurances against fire, and the temptations offered to persons to burn their own houses, the 43 Geo. III. c. 58. enacted, that if any person shall wilfully and maliciously set fire to any house, out-house, mill, warehouse, or shop, whether they are in the possession of himself or of any other person, with intent to injure or defraud his majesty, any of his subjects, or any body corporate, he, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy. This act is not restricted to cases which were before not felonies without clergy. Russ. & R. C. C. 207. 1 Burn. J. 24th ed. 521. S. C.
(3) The term malice, in this case as in many others, does not merely imply a design to injure the party who is eventually the sufferer, but an evil and mischievous intention, however general, producing damage to individuals. For if a man has a design to burn one house, and by accident the flames destroy another, instead of that against which his contrivance was directed, he will be guilty of maliciously burning the latter. Hale, 569. Hawk. b. 1. c. 39. s. 5. The maxim malitia supplet ætatem applies to this as well as to other cases; for lord Hale gives an instance of a youth of tender age being convicted before himself, and executed for this offence, on circumstances affording strong evidence of a mischievous discretion. 1 Hale, 569, 570. And the intent to injure may be always inferred from the wrongful act of setting fire, for a man must be supposed to intend the necessary consequence of his own act. Russ. & Ry. C. C. 207.
Chitty. (4) A good deal of discussion has arisen as to the true meaning of the word "burning" as used in the statute, and it has been contended that there must be a complete destruction of the building to bring the offence within the act. It has, however, been decided, that the setting fire
3. The punishment of arson was death by our ancient Saxon laws. (1) And in the reign of Edward the First, this sentence was executed by a kind of lex talionis; for the incendiaries were burnt to death: (m) as they were also by the Gothic constitutions. (n) The statute 8 Hen. VI. c. 6. made the wilful burning of houses, under some special circumstances therein mentioned, amount to the crime of high treason. But it was again reduced to felony by the general acts of Edward VI. and queen Mary; and now the punishment of capital felonies is uniform, namely, by hanging. The offence of arson was denied the benefit of clergy by statute 21 Hen. VIII. c. 1. but that statute was repealed by 1 Edw. VI. c. 12. and arson was afterwards held to be ousted of clergy, with respect to the principal offender, only by inference and deduction from the statute 4 & 5 P. & M. c. 4. which expressly denied it to the accessory be-  fore the fact; (o) though now it is expressly denied to the principal in all cases within the statute 9 Geo. I. c. 22.5
II. Burglary, or nocturnal house-breaking, burgi latrocinium, which by our ancient law was called hamesecken, as it is in Scotland to this day, has always been looked upon as a very heinous offence: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation which every individual might acquire even in a state of nature; an invasion, which in such a state would be sure to be punished with death, unless the assailant were the stronger. But in civil society, the laws also come in to the assistance of the weaker party; and, besides that they leave him this natural right of killing the aggressor, if he can (as was shewn in a former chapter), (p) they also protect and avenge him, in case the might of the assailant is too powerful. And the law of England has so particular and tender a regard to the immunity of a man's house, that it styles it his castle, and will never suffer it to be violated with impunity; agreeing herein with the sentiments of ancient Rome, as expressed in the words of Tully; (q) " quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium?" For this reason no outward doors can in general be broken open to execute any civil process; though, in criminal causes, the public safety supersedes the private. Hence also in part arises the animadversion of the law upon eaves-droppers, nuisancers, and incendiaries: and to this principle it must be assigned, that a man may assemble people together lawfully (at least if they do not exceed eleven) without danger of raising a riot, rout, or unlawful assembly, in order to protect and defend his house; which he is not permitted to do in any other case. (r) "
The definition of a burglar, as given us by sir Edward Coke, (s)  is" he that by night breaketh and entereth into a mansion-house, "with intent to commit a felony." In this definition there are four things to be considered; the time, the place, the manner, and the intent.
1. The time must be by night, and not by day for in the day time there is no burglary. We have seen, (t) in the case of justifiable homicide, how much more heinous all laws made an attack by night, rather than by day; allowing the party attacked by night to kill the assailant with impunity. As
1 LL. Inac. c. 7.
m Brit. c. 9.
o 11 Rep. 35. 2 Hal. P. C. S46, S47. Fost. 356.
n Stiernh. de jure Goth. l. 3. c. 6.
t See pag. 180, 181.
to an inhabited dwelling was arson, although the building was not consumed, and the fire went out or was extinguished. John. Dig. tit. arson.
(5) See post, 246, for the act.
(6) As to this, see ante, 146. note (8).
to what is reckoned night, and what day, for this purpose: anciently the day was accounted to begin only at sun-rising, and to end immediately upon sun-set; but the better opinion seems to be, that if there be daylight or crepusculum enough, begun or left, to discern a man's face withal, it is no burglary.(u) But this does not extend to moonlight; for then many midnight burglaries would go unpunished: and besides, the malignity of the offence does not so properly arise from its being done in the dark, as at the dead of night; when all the creation, except beasts of prey, are at rest; when sleep has disarmed the owner, and rendered his castle defenceless."
2. As to the place. It must be, according to sir Edward Coke's definition, in a mansion-house; and therefore to account for the reason why
u 3 Inst. 63. 1 Hal. P. C. 350. 1 Hawk. P. C. 101.
(7) Both the breaking and entry must be nocturnal; for if the breaking were in the night, and the entry in the day, or vice versa, the offence would not amount to burglary, 1 Hale, 551.: but if the breaking is on one night, and the entry on another, they together amount to burglary, and it may be supposed that both took place when the entry was effected. 1 Hale, 551. And where the prisoner broke the glass of prosecutor's side door on Friday night, with intent to enter at a fature time, and actually entered on the Sunday night, the judges held this burglary, the breaking and entering being both by night, and the breaking being with intent afterwards to enter. Russ. & Ry. C. C. 417.
(8) In addition to the cases and decisions on this point of the offence, stated by the learned commentator, the following may be useful: 1, As to the place; and, 2. As to the residence.
As to the Place. Every house for the dwelling and habitation of man," observes lord Coke," is taken to be a mansion-house, wherein burglary may be committed." 3 Inst. 64. So even a loft over a stable, used for the abode of a coachman, which he rents for his own use and that of his family, is a place which may be burglariously broken. 1 Leach, 305. So also burglary may be committed in a lodging-room, 1 Leach, 89.; or in a garret used for a workshop, and rented together with an apartment for sleeping, and if the landlord does not sleep under the same roof, the place may be laid as to the mansion of the lodger. 1 Leach, 237. Where J. W. let part of his house, viz. a shop, passage, cellar, &c. to his son, but the son did not sleep there, and there was a distinct entrance into the son's part, but his passage led to his father's cellars, and they were open to his father's part of the house, and the shop was broken into; the judges thought (on case reserved) that by reason of the internal communication, the son's part contained part of the father's house; and the conviction for the burglary was held right. Russ. & Ry. C. C. 244. This offence may also be committed, by breaking open a shop built close to a dwelling-house, although no one sleeps in it, and it has no internal communication with the principal mansion. 1 Leach. 357. And a building used with a dwelling-house, and opening into an enclosed yard belonging thereto, may be parcel of the dwelling-house, though it also opens into an adjoining street, and although it has no internal communication with the dwelling-house. Russ. & Ry. C. C. 357. And where the prosecutor's house was at the corner of a street, and adjoining thereto was a workshop, beyond which a stable and coach-house adjoined; all were used with the house, and had doors opening into a yard belonging to the house, which yard was surrounded by adjoining buildings, &c. making altogether an enclosed yard; the workshop had no internal communication with the house, and it had a door opening into the street, its roof was higher than that of the dwelling-house; the street door of the workshop was broken into in the night; and the offender being indicted for burglary, and convicted, the judges held this workshop was parcel of the dwelling, and that the conviction was right. Russ. & Ry. C. C. 334. 1 Bura J. 24th edit. 501, S. C. So where the prisoner broke into a goose-house opening into the prosecutor's yard, into which his house also opened, and the yard was surrounded partly by other buildings of the homestead, and partly by a wall; some of the buildings had doors opening backward, and there was a gate in one part of the wall opening upon a road; this goose-house was held to be part of the dwelling-house. Russ. & Ry. C. C. 360. 1 Burn. J. 24th edit. 501. S. C. But where a centre building is allotted to a variety of trades, and there are two wings annexed to it, both of which are used as dwelling-houses, and are occupied by different persons, the case will be otherwise, and it will be holden not a dwelling-house for the purpose, being evidently a distinct tenement, and occupied jointly, while the adjoining houses are the respective abodes of individuals. 2 Leach, 913. With respect to out-houses, it is generally laid down by the older writers, that barns, stables, cow-houses, are included in the term domus mansionalis, if they are parcel of the messuage, though neither contiguous to it, nor under the same roof. 3 Inst. 64. 1 Hale, 553. And accordingly it was bolden, that burglary might take place in respect of a building eight or nine yards distant from a dwelling-house, and with only a paling between them, 1 Hale, 558.; and an out-house in the yard of a dwelling-house will be parcel of the dwelling-house if the yard is enclosed, though the occupier has another dwelling-house opening into the yard, and he lets such dwelling-house with certain easements in the yard. 1 Ry. & M. C. C. 13. But it was even then laid down, that if the out-house was at a considerable distance, as if it stood a bow-shot from it, so as not to be reasonably esteemed parcel of the prin
breaking open a church is burglary, as it undoubtedly is, he quaintly observes that it is domus mansionalis Dei. (v) But it does seem absolutely necessary, that it should in all cases be a mansion-house; for it may also be committed by breaking the gates or walls of a town in the night; (w) though that perhaps sir Edward Coke would have called the mansion-house of the garrison or corporation. Spelman defines burglary to be "noc"turna diruptio alicujus habitaculi, vel ecclesiae, etiam murorum  "portarumve burgi, ad feloniam perpetrandam." And therefore we may safely conclude, that the requisite of its being domus mansionalis is only in the burglary of a private house: which is the most frequent, and which it is indispensably necessary to form its guilt, that it must be in a mansion or w Spelm. Gloss. t. Burglary. 1 Hawk. P. C. 103.
v3 Inst. 64.
cipal dwelling, nor within the curtilage, it will not answer to this description. 1 Hale, 144. And in more recent times, it has been decided, that an out-house several feet from the mansion, and unconnected by any common enclosure, is not a place in which burglary can be committed. 1 Leach, 144. And a building separated from the dwelling-house by a public road, however narrow, will not be a parcel of the dwelling-house, if there is no common fence or roof to connect them, though it be held by the same tenure, and though some of the offices necessary to the dwelling-house adjoin it, and though there be an awning extending from it to the dwelling-house. But if it is made a sleeping place for any of the servants of the dwelling-house, it may be deemed a distinct dwelling-house. Russ. & Ry. C. C. 495. A door which only forms part of the outward fence of the curtilage, and opens into no building, but into the yard only, is not such a part of the dwelling-house, as that the breaking thereof will constitute burglary. Russ. & Ry. C. C. 289. An area gate, opening into the area only, is not part of the dwelling-house, so as to make the breaking thereof burglary, if there is any door or fastening to prevent persons in the area from entering the house, although such door or fastening may not be secured at the time. Russ. & Ry. C. C. 322.
As to the residence; from all the cases, it appears that it must be a place of actual residence. Thus, a house under repair, in which no one lives, though the owner's property is deposited there, is not a place in which burglary can be committed; for it cannot be deemed his dwellinghouse, until he has taken possession and began to inhabit it. 1 Leach, 185. Nor will it make any difference, if one of the workmen engaged in the repairs, sleep there, in order to protect it. 1 Leach, 186. in notis. Nor, though the house is ready for the reception of the owner, and he has sent his property into it preparatory to his own removal, will it become for this purpose, his mansion. 2 Leach, 771. And where the owner has never, by himself or by any of his family, slept in the house, it is not his dwelling-house, so as to make the breaking thereof burglary, though he has used it for his meals, and all the purposes of his business. Russ. & Ry. C. C. 138. So, if the landlord of a house purchase the furniture of his out-going tenant, and procure a servant to sleep there, in order to guard it, but without any intention of making it his own residence, a breaking into the house will not amount to burglary. 2 Leach, 876. But if the agent of a public company reside at a warehouse belonging to his employers, this crime may be committed by breaking it, and he may be considered as the owner. 2 Leach, 931. And it seems, that if a man die in his house, and his executors put servants in it, and keep them there at board wages, burglary may be committed in breaking it, and it may be laid to be the executors' property. 2 East P. C. 499.
It seems quite settled, as above observed, that the proprietor of the house need not be actually within it, at the time the offence is committed, provided it is one of his regular places of abode. For if he leaves it animo revertendi, though no person resides there in his absence, it will still be his mansion. As, if a man has a house in town, and another in the country, and goes to the latter in the summer, the nocturnal breaking into either, with a felonious design, will be burglarious. Fost. 77. And, though a man leaves his house and never means to live in it again, yet if he uses part of it as a shop, and lets a servant and his family live and sleep in another part of it, for fear the place should be robbed, and lets the rest to lodgers, the habitation by his servant and family will be a habitation by him, and the shop may still be considered as part of his dwelling-house. 1 Burn J. 24th edit. 503. Russ. & Ry. C. C. 442. S. C. But in an indictment for larceny from a dwelling-house, where the prosecutor left his house without any intention of living in it again, and intending to use it as a warehouse only, though he had persons (not of his family) to sleep in it to guard the property, it was held, it could not be considered the prosecutor's dwelling-house, to support the charge. Russ. & Ry. C. C. 187. And if the occupier of a house removes from it with his whole family, and takes away so much of his goods as to leave nothing fit for the accommodation of inmates, and has no settled idea of returning to it, but rather intends to let it, the offence will be merely larceny. Fost. 76. And the mere casual use of a tenement will not suffice; and, therefore, the circumstance of a servant sleeping in a barn, or porter in a warehouse, for particu lar and temporary purposes, will not so operate as to make a violent entry in the night, in order to steal, a burglary. 1 Hale, 557, 8. Chitty,
(9) Sed quære, see Hawk. b. 1. c. 38. a. 17.