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and much more pernicious to the public than simple theft : because first, it is ar oflence 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. [*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 selony, 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) F'. 48. 19. 28. 6 12. () i Hal. P. C.567.
(d) I Hawk. P. C. 105.
(c) 3 Inst. 69.
lage or any building in which may be deposit- same; any stack of grain of any kind, or of
the third, not less than 7 nor more than 10.
Arson in the fourth degree, is the wilfully or to any woods or heaths, is made felony, pu. setting fire to or burning,
nishable with transportation for seven years, 1. In the day time, any building, ship, or or imprisonment not exceeding two years, vessel, which, if committed in the night, would with whipping to male offenders in addition. be arson in the third degree.
See this section fully set forth, post 245, in 2. Either in the day or night, any saw-mill, notis. carding machine, or building containing the
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 (8) (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
I Hal. P. C. 568. ] Hawk. P. C. 106. (8) Fost. 15.
(h) 1 Hawk. P. C. 106.
(3) See ante, p 196, note 24.
acts, that if any person shall unlawfully and (4) It has been decided that an attempt, or maliciously set fire to any church or chapel, preparation, by a man to set fire to his own or to any chapel for the religious worship of house in a town, though the fire he never persons dissenting from the united church of kindled, is a misdemeanor. And that every England and Ireland, duly registered or record. attempt to commit a felony is a misdemeanor; ed; or shall unlawfully and maliciously set fire and, in general, an attempt to commit a mis- to any house, stable, coach-house, out-house, demeanor is an offence of the same nature. warehouse, office, shop, mill, mallhouse, hopCald. 397. 6 East, 464. I Wils. 139. So oast, barn or granary, or to any building or also an incitement or solicitation to commit a erection used in carrying on any trade or macrime is a misdemeanor. R. v. Higgins, 2 nufacture, or any branch thereof, whether the East, 5.
same, or any of them respectively shall then be in Voluntas reputatur pro facto is still true, both the possession of the offender, or in the possession in treason and misdemeanor ; but the inten- of any other person, with intent thereby to injure tion in both must be manifested by an open or defraud any person, every such offender shall act. Men cannot be punished by the law for be guilty of felony, and being convicted therethe thoughts of the mind, however wicked of, shall suffer death as a selon. they may be : even a resolution to commit (7) The term malice, in this case as in many high treason, evidenced only by a confession, others, does not merely imply a design to inwithout any attempt to carry it into effect, is not jure the party who is eventually the sufferer, punishable by the law of England. The prin. but an evil and mischievous intention, how. ciple of these cases is well illustrated by lord ever general, producing damage to individuals. Coke, who, after treating of single combats For if a man has a design to burn one house, and affrays, says, "if any subject challenge and by accident the flames destroy another, inanother to fight, this is also an offence, before stead of that against which his contrivance was any combat be performed, and punishable by directed, he will be guilty of maliciously burnlaw, for quando aliquid prohibetur, prohibetur et ing the latter. Hale, 569. Hawk. b. 1. c. omne, per quod devenitur ad illud." * 3 Inst. 158. 39. s. 5. The maxim malitia supplet etatem And therefore he who carries the challenge, applies to this as well as to other cases; for knowing that it is a challenge, is also guilty lord Hale gives an instance of a youth of ten. of a misdemeanor: and he who designedly at- der age being convicted before himself, and tempts to provoke another fight or to send a executed for this offence, on circumstances afchallenge, is guilty of the same offence. fording strong evidence of a mischievous dis
(5) It has been determined, that if a tenant cretion. Hale, 569, 570. And the intent to set fire to the house of his landlord before the injure may be always inferred from the wrong. tenancy expires, he is not guilty of arson. ful act of setting fire, for a man must be supLeach. 195, 209.
posed to intend ihe necessary consequence of (6) But these distinctions are now annihi. his own act. Russ. & Ry. Ć. C. 207. lated by 7 and 8 Geo. IV. c. 30, $ 2, which en. Vol. M
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 (7). And in the reign of Edward the First, this sentence was executed by a kind of ler 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 ossence 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 so 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
(n) Stiernh. de jure Goth. I. 3, c. 6.
(k) Ff. 1. 15. 4.
(8) The punishment icflicted by 6 Ann. c. break and enter any dwelling-house, and steal 31, was again inflicted by 14 Geo. Ill. c. 78, 9 therein any chattel, money, or valuable secu. 84; which appears to be unrepealed.
rity to any value whatever; or shall steal any (9) See post, 246. for the act.
such property to any value whatever in any (10) As ihe statute law relating to burglary dwelling house, any person therein being put and housebreaking has recently undergone in fear; or shall steal in any dwelling-house considerable alterations, it is deemed advisable any chattel, money, or valuable security, to the to set out all the enactments in the first in- value in the whole of 51. or more ; every such stance; their bearings upon the text will be offender, being convicted thereof, shall suffer explained in the progress of the chapter. death as a felon.
The 7 and 8 Geo. IV. c. 29, $ 10, enacts, that Section 13 provides and enacts, that no if any person shall break and enter any church building, although within the same curtilage or chapel, and steal therein any chattel, or with the dwelling-house, and occupied there. having stolen any chattel, in any church or with, shall be deemed to be part of such chapel, shall break out of the same, every dwelling-house for the purposes of burglary, such offender, being convicted thereof, shall or for any of the purposes aforesaid, unless suffer death as a felon.
there shall be a communication between such Section 11 enacts, that every person con- building and dwelling-house, either immedi. victed of burglary shall suffer death as a felon; ate, or by means of a covered and enclosed and declares, that if any person shall enter passage leading from the one to the other. the dwelling-house of another with intent to Section 14 enacts, that if any person shall commit felony, or being in such dwelling. break and enter any building and steal therein house shall commit any felony, and shall in any chattel, money, or valuable security, such either case break out of the said dwelling- building being within the curtilage of a house, in the night time, such person shall be dwelling-house, and occupied therewith, but deemed guilty of burglary.
not being part thereof, according to the provi. Section 12 enacts, that if any person shall sion hereinbefore mentioned, every such of
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 (0);"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
(8) 3 Inst. 63.
(9) pro domo, 41.
fender, being convicted thereof, either upon an window, or shutter of a window, or any other indictinent for the same offence, or upon an part of the house to get out. 4. The entering indictment for burglary, housebreaking, or the dwelling-house of another in the night stealing to the value of 5l. in a dwelling. time through an open outer door or window, or house, containing a separate count for such other aperture not made by the person enter. offence, shall be liable, at the discretion of the ing, and then breaking any inner door of the court, to be transported for life, or for any house with intent to commit a crime. 5. The term nol less than seven years, or to be impri- being admitted into a dwelling-house with the soned for any term not exceeding four years; consent of the occupant, or being lawfully in and, if a male, to be once, twice, or thrice the house, and then in the night time breaking publicly or privately whipped (if the court shall any inner door of the house with intent to so think fit) in addition to such imprisonment commit a crime. No building is a dwelling
And section 15 enacts, that if any person house or part of one within the meaning of the shall break and enter any shop, warehouse, or preceding provisions, unless it be joined to, counting-house, and steal therein any chalie!, immediately connected with, and part of, á money, or valuable security, every such offend: dwelling house. er, being convicted thereof, shall be liable to Burglary in the third degree, is breaking any of the punishments which the court may and entering by day or night: 1. Any buildaward, as hereinbefore last mentioned. ing within the curtilage of a dwelling house,
(11) As to this, see ante, 146, note 10. but not forming a part of it. 2. Any shop,
(12) In New-York, burglary is divided into store, booth, tent, warehouse, or other building, three degrees. The first is, breaking into and in which any goods, merchandise, or valuable entering in the night time the dwelling-bouse thing, may be kept for use, sale, or deposit, of another, in which there shall be at the time with intent to steal therein or to commit any some human being, with intent to commit felony. 3. Breaking, and entering into the some crime therein, either : I. By forcibly dwelling house of another, by day under such bursting or breaking the wall, or an outer door, circumstances as would have constituted the window, or shutter of a window, of such offence of burglary in the second degree if house, or the lock or bolt of such door, or the committed in the night. The breaking out of fastening of such window or shutter. 2. By a dwelling-house, or the breaking of an inner breaking in any other manner, being armed door, by one who is within, is not such a with some dangerous weapon : or with the as. breaking as to constitute burglary in any case sistance of one or more confederates then ac. except those above particularly specified. tually present and assisting. 3. By unlocking Burglary in the first degree is punishable by an outer door by means of false keys, or by imprisonment in a state-prison not less than picking the lock ihereof.
10 years : in the second, not less than 5 nor The second degree, is: 1. The commission more than 10: in the third, not more than 5. of the above offences in the day time instead 2 R. S. 668, article 2. of the night. 2. The breaking into any dwel. Thus by the Revised Statutes the offence ling-house in the night with intent to commit a may be committed by day or night; it may be crime, but under such circumstances as not to in other buildings besides dwelling-houses; it be burglary in the first degree. 3. The enter. may be by one who is lawsully in the house, ing into the dwelling-house of another by day and who breaks only an inner door. The fora or night in such a manner as not to constitute mer decisions are still necessary to under. any burglary before specified, but with intent stand the offence; thus they determine what to commit a crime ;'or the commission of a is a breaking and entering, what is the dwel. crime while in the dwelling-house of another; ling-house of another, what a curtilage, whon and breaking, in the night time any outer door, 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 () See page 180, 181.
(v) 3 Inst. 64. (u) 3 Inst. 63. I Hal. P. C. 350. I Hawk. P. C. 101.
(13) The new statute does not contain the Kel. 84. word mansion, which was formerly held to With respect to the new provisions contain. comprehend out-houses, if parcel of the dwel. ed in ss. 13 and 14 of the new statute, it would ling-house ; the consequences of which, and of seem that any building which before the pass. the new provisions in ss. 13 and 14, is, that no ing of this statute would have been the subbuilding, except a dwelling-house, or a build. jeci of burglary, by reason of its being within ing immediately connected therewith, can now the curtilage, may now be the subject of an be the subject of burglary, either at common indictment under s. 14. The main question law, or under the new statute. Where the in such cases will be, what shall be consider. owner has never by himself, or by any of his fa- ed as being within the curtilage, which, in the mily, slept in the house, it is not his dwelling. Termes de la Ley, is defined to be, a garden, house, so as to be the subject of burglary: yard, field, or piece of void ground, lying near, Rex v. Martin, R. and R. C. C. 108. And and belonging to, the messuage. Such garsee Lyon's case, Leach, 169; Thompson's den, &c. must be connected with the mescase, id. 893. Where a servant has part of a suage by one uninterrupted fence or enclosure house for his occupation, and the rest is re- of some kind, and perhaps such fence may served by the proprietor for other purposes, the more properly be termed the curtilage, than the part reserved cannot be deemed part of the ground lying within it. An indictment under servant's dwelling-house; and it will be the the new section must aver that the building same if any other person has part of the house, was within the curtilage of the prosecutor's and the rest is reserved. Rex v. Wilson, R. dwelling-house, and that it was occupied and R. C. C. 115. Where a servant stipulates therewith by the prosecutor; but it would upon hire for the use of certain rooms in his seem that it need not aver that the building master's premises for himself and family, the was one in which burglary could not be compremises may be described as the master's mitted. See Rex v. Robinsun, R. and R. dwelling-house, although the servant is the C. C, 321. The other clauses of this statute, only person who inhabils them; for he shall be namely, s. 10, as to sacrilege, or burglary and considered as living there as servant, not as stealing in a church or chapel; s. 12, as to holding as tenant. Rex v. Stock, id. 185. housebreaking, and stealing in a house; and s. Where a shop was rented with some of the 15, as to robbery in a shop; will be more proapartments of a house, it was held that the perly the subjects of consideration and exposhop was still part of the dwelling-house, and sition in the succeeding chapter, 17, to which that burglary might be committed in it, as the the reader is referred. house of the landlord. Gibson's case, Leach, (14) As to the residence, from all the cases, 287. Where it must be laid in the indictment it appears that it must be a place of actual re
to be the dwelling-house of the landlord, if he sidence. Thus, a house under repair, in which • break open the apartments of his lodgers, and no one lives, though the owner's property is steal their goods, it is not burglary, for a man deposited there, is not a place in which burcannot be guilty of burglary in his own house. glary can be committed; for it cannot be