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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 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.


[*221] "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 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) (2). 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; though it does, in some cases, by particular

(a) Ff. 48. 19. 28. § 12.
(b) 1 Hal. P. C. 567.
(c) 3 Inst. 69.

lage or any building in which may be deposited the papers of any public officer: or any barn, or grist mill: or any manufactory of cotton or woollen goods, or both; or paper, iron, or any other fabric; or any fulling mill, ship, or vessel.

3. The wilful burning of any building, ship, or vessel, or any goods, wares, merchandize, or other chattel, which shall be at the time insured against loss or damage by fire, with intent to prejudice the insurer, whether the same be the property of the incendiary or not.

Arson in the fourth degree, is the wilfully setting fire to or burning,

1. In the day time, any building, ship, or vessel, which, if committed in the night, would be arson in the third degree.

2. Either in the day or night, any saw-mill, carding machine, or building containing the

(d) 1 Hawk. P. C. 105.

(e) Cro. Car. 377. 1 Jon. 351.

same; any stack of grain of any kind, or of hay, not being the property of the incendiary: any toll bridge or other public bridge.

Arson in the second degree is punishable with imprisonment not less than ten years: in the third, not less than 7 nor more than 10. in the fourth, not more than 7 years. (2 R. S. 666, &c.)

(2) This is declared to be arson by 7 and 8 Geo. IV. c. 30, § 17, and is made a capital of fence; and the setting fire to any crops of corn, grain, or pulse, whether standing or cut down, or to any woods or heaths, is made felony, punishable with transportation for seven years, or imprisonment not exceeding two years, with whipping to male offenders in addition. See this section fully set forth, post 245, in notis.

statutes (3). However such wilful firing one's own house, in a town, is a' high misdemeanor, and punishable by fine, imprisonment, pillory, and perpetual sureties for the good behaviour (f) (4). 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) (5), (6).

2. As to what shall be said to be a burning, so as to amount to [*222] 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 (7). 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 servant, negligently setting fire to a house or out-houses, shall forfeit 1001. or be sent to the house of correction for eighteen months; in the same

(f) 1 Hal. P. C. 568. 1 Hawk. P. C. 106. (g) Fost. 15.

(3) See ante, p 196, note 24. (4) 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. I Wils. 139. So also an incitement 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 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 it 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, before any combat be performed, and punishable by law, for quando aliquid prohibetur, prohibetur 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 at tempts to provoke another fight or to send a challenge, is guilty of the same offence.

(5) 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.

(6) But these distinctions are now annihilated by 7 and 8 Geo. IV. c. 30, § 2, which enVOL. N

(h) 1 Hawk. P. C. 106.
(i) 1 Hal. P. C. 569.

acts, that if any person shall unlawfully and maliciously set fire to any church or chapel, or to any chapel for the religious worship of persons dissenting from the united church of England and Ireland, duly registered or recorded; or shall unlawfully and maliciously set fire to any house, stable, coach-house, out-house, warehouse, office, shop, mill, malthouse, hopoast, barn or granary, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same, or any of them respectively shall then be in the possession of the offender, or in the possession of any other person, with intent thereby to injure or defraud any person, every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon.

(7) 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. 1 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 wrong ful act of setting fire, for a man must be supposed to intend the necessary consequence of his own act. Russ. & Ry. C. C. 207. 71

manner as the Roman law directed, " eos, qui negligenter ignes apud se habuerint, fustibus vel flagellis caedi (k) (8)."

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 statutes 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 all 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 [*223] statute 4 & 5 P. & M. c. 4, *which expressly denied it to the ac

cessary before the fact (o); though now it is expressly denied to the principal in all cases within the statute 9 Geo. I. c. 22 (9).

II. Burglary, or nocturnal housebreaking, 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 into 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 (10). And the law of England has so particular and

(k) Ff. 1. 15. 4.
(1) LL. Inae, c. 7.
(m) Britt. c. 9.

(8) The punishment inflicted by 6 Ann. c. 31, was again inflicted by 14 Geo. III. c. 78, ◊ 84; which appears to be unrepealed.

(9) See post, 246. for the act.

(10) As the statute law relating to burglary and housebreaking has recently undergone considerable alterations, it is deemed advisable to set out all the enactments in the first instance; their bearings upon the text will be explained in the progress of the chapter.

The 7 and 8 Geo. IV. c. 29, § 10, enacts, that if any person shall break and enter any church or chapel, and steal therein any chattel, or having stolen any chattel, in any church or chapel, shall break out of the same, every such offender, being convicted thereof, shall suffer death as a felon.

Section 11 enacts, that every person convicted of burglary shall suffer death as a felon; and declares, that if any person shall enter the dwelling-house of another with intent to commit felony, or being in such dwellinghouse shall commit any felony, and shall in either case break out of the said dwellinghouse, in the night time, such person shall be deemed guilty of burglary.

Section 12 enacts, that if any person shall

(n) Stiernh, de jure Goth. 1. 3, c. 6.

(0) 11 Rep. 35. 2 Hal. P. C. 346, 347. Fost. 336. (p) See page 180.

break and enter any dwelling-house, and steal therein any chattel, money, or valuable secu rity to any value whatever; or shall steal any such property to any value whatever in any dwelling-house, any person therein being put in fear; or shall steal in any dwelling-house any chattel, money, or valuable security, to the value in the whole of 51. or more; every such offender, being convicted thereof, shall suffer death as a felon.

Section 13 provides and enacts, that no building, although within the same curtilage with the dwelling-house, and occupied therewith, shall be deemed to be part of such dwelling-house for the purposes of burglary, or for any of the purposes aforesaid, unless there shall be a communication between such building and dwelling-house, either immedi ate, or by means of a covered and enclosed passage leading from the one to the other.

Section 14 enacts, that if any person shall break and enter any building and steal therein any chattel, money, or valuable security, such building being within the curtilage of a dwelling-house, and occupied therewith, but not being part thereof, according to the provi sion hereinbefore mentioned, every such of

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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 (2); 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) (11).

*The definition of a burglar (12), as given us by sir Edward [*224] Coke (s), is "he that by night breaketh and entereth into a man

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fender, being convicted thereof, either upon an indictment for the same offence, or upon an indictment for burglary, housebreaking, or stealing to the value of 51. in a dwelling house, containing a separate count for such offence, shall be liable, at the discretion of the court, to be transported for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years; and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment. And section 15 enacts, that if any person shall break and enter any shop, warehouse, or counting-house, and steal therein any chatte!, money, or valuable security, every such offender, being convicted thereof, shall be liable to any of the punishments which the court may award, as hereinbefore last mentioned.

(11) As to this, see ante, 146, note 10. (12) In New-York, burglary is divided into three degrees. The first is, breaking into and entering in the night time the dwelling-house of another, in which there shall be at the time some human being, with intent to commit some crime therein, either: 1. By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window, of such house, or the lock or bolt of such door, or the fastening of such window or shutter. 2. By breaking in any other manner, being armed with some dangerous weapon: or with the assistance of one or more confederates then actually present and assisting. 3. By unlocking an outer door by means of false keys, or by picking the lock thereof.

The second degree, is: 1. The commission of the above offences in the day time instead of the night. 2. The breaking into any dwel ling-house in the night with intent to commit a crime, but under such circumstances as not to be burglary in the first degree. 3. The enter ing into the dwelling-house of another by day or night in such a manner as not to constitute any burglary before specified, but with intent to commit a crime; or the commission of a crime while in the dwelling-house of another; and breaking, in the night time any outer door,

(s) 3 Inst. 63.

window, or shutter of a window, or any other part of the house to get out. 4. The entering the dwelling-house of another in the night time through an open outer door or window, or other aperture not made by the person entering, and then breaking any inner door of the house with intent to commit a crime. 5. The being admitted into a dwelling-house with the consent of the occupant, or being lawfully in the house, and then in the night time breaking any inner door of the house with intent to commit a crime. No building is a dwellinghouse or part of one within the meaning of the preceding provisions, unless it be joined to, immediately connected with, and part of, a dwelling-house.

Burglary in the third degree, is breaking and entering by day or night: 1. Any building within the curtilage of a dwelling-house, but not forming a part of it. 2. Any shop, store, booth, tent, warehouse, or other building, in which any goods, merchandise, or valuable thing, may be kept for use, sale, or deposit, with intent to steal therein or to commit any felony. 3. Breaking, and entering into, the dwelling-house of another, by day under such circumstances as would have constituted the offence of burglary in the second degree if committed in the night. The breaking out of a

dwelling-house, or the breaking of an inner door, by one who is within, is not such a breaking as to constitute burglary in any case except those above particularly specified.

Burglary in the first degree is punishable by imprisonment in a state-prison not less than 10 years in the second, not less than 5 nor more than 10: in the third, not more than 5. 2 R. S. 668, article 2.

Thus by the Revised Statutes the offence may be committed by day or night; it may be in other buildings besides dwelling-houses; it may be by one who is lawfully in the house, and who breaks only an inner door. The former decisions are still necessary to understand the offence; thus they determine what is a breaking and entering, what is the dwelling-house of another, what a curtilage, when the night commences and ends, &c.

sion-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 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 breaking open a church is burglary, as it undoubtedly is, he quaintly observes that it is domus mansionalis Dei (v). But it does not seem absolutely necessary that it should in all cases be a mansion-house (13), (14); for it

1 (t) See page 180, 181.

(u) 3 Inst. 63. 1 Hal. P. C. 350. 1 Hawk. P. C. 101.

(13) The new statute does not contain the word mansion, which was formerly held to comprehend out-houses, if parcel of the dwelling-house; the consequences of which, and of the new provisions in ss. 13 and 14, is, that no building, except a dwelling-house, or a building immediately connected therewith, can now be the subject of burglary, either at common -law, or under the new statute. Where the owner has never by himself, or by any of his family, slept in the house, it is not his dwellinghouse, so as to be the subject of burglary, Rex v. Martin, R. and R. C. C. 108. And see Lyon's case, Leach, 169; Thompson's case, id. 893. Where a servant has part of a house for his occupation, and the rest is reserved by the proprietor for other purposes, the part reserved cannot be deemed part of the servant's dwelling-house; and it will be the same if any other person has part of the house, and the rest is reserved. Rex v. Wilson, R. and R. C. C. 115. Where a servant stipulates upon hire for the use of certain rooms in his master's premises for himself and family, the premises may be described as the master's dwelling-house, although the servant is the only person who inhabits them; for he shall be considered as living there as servant, not as holding as tenant. Rex v. Stock, id. 185. Where a shop was rented with some of the apartments of a house, it was held that the shop was still part of the dwelling-house, and that burglary might be committed in it, as the house of the landlord. Gibson's case, Leach, 287. Where it must be laid in the indictment to be the dwelling-house of the landlord, if he break open the apartments of his lodgers, and steal their goods, it is not burglary, for a man cannot be guilty of burglary in his own house.

(v) 3 Inst. 64.

Kel. 84.

With respect to the new provisions contained in ss. 13 and 14 of the new statute, it would seem that any building which before the passing of this statute would have been the subject of burglary, by reason of its being within the curtilage, may now be the subject of an indictment under s. 14. The main question in such cases will be, what shall be considered as being within the curtilage, which, in the Termes de la Ley, is defined to be, a garden, yard, field, or piece of void ground, lying near, and belonging to, the messuage. Such garden, &c. must be connected with the messuage by one uninterrupted fence or enclosure of some kind, and perhaps such fence may more properly be termed the curtilage, than the ground lying within it. An indictment under the new section must aver that the building was within the curtilage of the prosecutor's dwelling-house, and that it was occupied therewith by the prosecutor; but it would seem that it need not aver that the building was one in which burglary could not be committed. See Rex v. Robinson, R. and R. C. C, 321. The other clauses of this statute, namely, s. 10, as to sacrilege, or burglary and stealing in a church or chapel; s. 12, as to housebreaking, and stealing in a house; and s. 15, as to robbery in a shop; will be more properly the subjects of consideration and exposition in the succeeding chapter, 17, to which the reader is referred.

(14) 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

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