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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, “nocturna diruptio alicujus "habitaculi, vel ecclesiae, [ *225] 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 in which it is indispensably necessary to form its guilt, that it must be in a mansion or dwelling-house. For no distant barn, warehouse, or the like, are under the same privileges, nor looked upon as a man's castle of defence: nor is a breaking open of houses wherein no man resides, and which therefore for the time being are not mansion-honses, attended with the same circumstances of midnight terror. A house, however, wherein a man sometimes resides, and which the owner hath only left for a short season, animo revertendi, is the object of burglary, though no one be in it at the time of the fact committed (x). And if the barn, stable, or warehouse, be parcel of the mansion-house and, within the same common fence (y), though not under the same roof or contiguous, a burglary may be committed therein ; for the capital house protects and privileges all its branches and appurtenances, if within the curtilage or homestall (2). A chamber in a college or an inn of court, where each inhabitant hath a distinct property, is, to all other purposes as well as this, the mansion-house (10) Spelm. Gloss. 1. Burglary. 1 Hawk. P. C. (y) K. v. Garland, P. 16 G. III. by all the judges.

(2) I Hal. P. C. 558. 1 Hawk. P. C. 104.

103.

(1) 1 Hal. P. C. 566. Fost. 77.

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deemed his dwelling-house, until he has taken it will still be his mansion. As, if a man has possession and began to inhabit it. 1 Leach, a house in town, and another in the country, 185. Nor will it make any difference, if one and goes to the latter in the summer, the nocturof the workmen engaged in the repairs, sleep nal breaking into either, with a felonious dethere, in order to protect it. 1 Leach, 186. in sign, will be burglarious. Fost. 77. And, notis. Nor, though the house is ready for the though a inan leaves his house, and never means reception of the owner, and he has sent his to live in it again, yet if he uses part of it as a property into it preparatory to his own remo- shop, and lets a servant and his family live and val, will it become for this purpose, his man. sleep in another part of it, for fear the place sion. 2 Leach, 771. And where the owner should be robbed, and lets the rest to lodgers, has never, by himself or by any of his family, the habitation by his servant and family will slept in the house, it is not his dwelling-house, be a habitation by him, and the shop may still so as to make the breaking thereof burglary, be considered as part of his dwelling-house. though he has used it for his meals, and all 1 Burn J. 24th edit. 503. Russ. & Ry. C. C. the purposes of his business. Russ. & Ry. 442. S. C. But in an indictment for larceny C. C. 138. So, if the landlord of a house pure from a dwelling.house, where the prosecutor chase the furniture of his out-going tenant, left his house without any intention of living and procure a servant to sleep there, in order in it again, and intending to use it as a wareto guard it, but without any intention of mak. house only, though he had persons (not of his ing is his own residence, a breaking into the family) to sleep in it to guard the property, it house will not amount to burglary. 2 Leach, was held, it could not be considered the pro876. But if the agent of a public company secutors dwelling house, to support the charge. reside at a warehouse belonging to his em- Russ. & Ry. C. C. 187. And if the occupier ployers, this crime may be committed by break of a house removes from it with his whole fa. ing it, and he may be considered as the owner. mily, and takes away so much of his goods as 2 Leach, 931. And it seems that if a man die to leave nothing fit for the accommodation of in his house, and his executors put servants in inmates, and has no settled idea of returning it, and keep them there at board wages, burgla. to it, but rather intends to let it, the offence ry may be committed in breaking it, and it may will be merely larceny. Fost. 76. And the be laid to be the executors' property. 2 East, mere casual use of a tenement will not sufP. C. 499.

of the owner (a). So also is a room or lodging, in any private house, the mansion for the time being of the lodger; if the owner doth not himself dwell in the house, or if he and the lodger enter by different outward doors. But if the owner himself lies in the house, and hath but one outward door at which he and his lodgers enter, such lodgers seem only to be inmates and all their apartments to be parcel of the one dwelling-house of the owner (6). Thus too the house of a corporation, inhabited in seperate apartments by the officers of the body corporate, is the mansion-house of the corporation, and not of the respective officers (c). But if I hire a shop, parcel of another man's house, and work or trade in it, but never lie there;

it is no dwelling-house, nor can burglary be committed therein; for [*226] by the lease *it is severed from the rest of the house, and there

fore is not the dwelling-house of him who occupies the other part: neither can l be said to dwell therein, when I never lie ihere (d). Neither can burglary be committed in a tent or booth erected in a market or fair; though the owner may lodge therein (e); for the law regards thus highly nothing but permanent edifices; a house or church, the wall or gate of a town ; and though it may be the choice of the owner to lodge in so fragile a tenement, yet his lodging there no more makes it burglary to break it open, than it would be to uncover a tilted waggon in the same circumstances.

3. As to the manner of committing burglary: there must be both a breaking and an entry to complete it. But they 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 (f ). There must in general be an actual breaking ; not a mere legal clausum fregit (by leaping over invisible ideal boundaries, which may constitute a civil trespass), but a substantial and forcible irruption. As at least by breaking, or taking out the glass of, or otherwise opening, a window : picking a lock, or opening it with a key ; nay, by lifting up the latch of a door, or unloosing any other fastening which the owner has provided (15). But if a person leaves his doors or windows open, it is his own folly and negligence, and if a man enters therein, it is no burglary: yet, if he afterwards unlocks an inner or chamber door, it is so (g) (16). But to come down a chimney is (a) 1 Hal. P. C. 556.

(e) i llawk. P. C. 104. (b) Kel. 84. I Hal. P. C. 556.

( 1 Hal. P. C. 553. (c) Foster, 38, 39.

(g) Ibid. (d) 1 Hal. P. C. 558.

(15) So to push open massive doors which c. 157. And it is to be observed, that even shùt hy their own weight, is burglarious, when the first entry is a mere trespass, being though there is no actual fastening. 2 East, as per janua aperta, if the thief afterwards P. C. 487. Pulling down the sash of a win. breaks open any inner room, he will be guilty dow is a breaking, though it has no fastening, of burglary, 1 Hale, 553: and this may be and is only kept in its place by the pulley done by a servant who sleeps in an adjacent weight; it is equally a' breaking, although room, unlatching his master's door, and enter: there is an outer shutter which is not put to. ing his apartment, with intent to kill him. I Russ. & Ry. C. C. 451. And where a win. Hale, 344. But lord Hale doubts wberber a dow opens upon hinges, and is fastened by a guest at an inn is guilty of burglary by rising wedge, so that pushing against it will open it, in the night, opening his own door, and stealforcing it open by pushing against it is suffi- ing goods from other rooms. Hale, 554. cient to constitute a breaking. Russ. & Ry. And it seems certain that breaking open a C. C. 355. But where the prisoner broke out chest or trunk, is not in itself burglarious, of a cellar by lifting up a heavy flap, by which Fost. 108, 9: and according to the better opi. the cellar was closed on the outside next the nion, the same principle applies to cupboards, street; the flap was not bolted, but it had presses, and other fixtures, which, though at. bolts. Six of the learned judges were of tached to the freehold, are intended only the opinion that there was a sufficient breaking better to supply the place of moveable deposito constitute burglary; the remaining six tories. Fost. 109. were of a contrary opinion. Russ. & Ry. C. (16) It will be burglary to unlatch an inner

person

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held a burglarious entry; for that is as much closed as the nature of things
will permit (h). So also to knock at the 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 admit-
tance, in order to search for traitors, and then to bind the constable and
rob the house ; all these entries have been adjudged burglarious,
though there was * no actual breaking ; for the law will not suf- [*227]
fer itself to be trifled with by such evasions, especially under the
cloak of legal process (i). And so, if a servant opens and enters his
master's chamber-door with a felonious design ; or if any

other
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 (k); for the servant is doing an unlawful act, and the opportunity as-
forded him of doing it with greater ease, rather aggravates than extenu-
ates the guilt. As for the entry, any the least degree of it, with any part
of the body, or with an instrument held in the hand, is sufficient; as to
step over the threshold, to put a hand or a hook in at a window to draw
out goods, or a pistol to demand one's money, are all of them burglarious
entries (1) (17). The entry may be before the breaking, as well as after:
for by statute 12 Ann. c. 7. if a person enters into the dwelling-house of
another, without breaking in, either by day or by night, with intent to com-
mit felony, or being in such a house, shall commit any felony ; and shall
in the night break out of the same, this is declared to be burglary ; there
having before been different opinions concerning it : lord Bacon (m) hold-
ing the affirmative, and sir Matthew Hale (n) the negative. But it is
universally agreed, that there must be both a breaking, either in fact or by
implication, and also an entry, in order to complete the burglary (18).

4. As to the intent; it is clear, that such breaking and entry must be with a felonious intent, otherwise it is only a trespass.

And it is the same, whether such intention be actually carried into execution, or only demonstrated by some attempt or overt act, of which the jury is to judge. And therefore such a breach and entry of a house as has been before described, by night, with intent to commit a robbery, *a murder, [*228] (h) I Hawk. P. C. 102. 1 Ilal. P. C. 552.

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a rape, or any other felony, is burglary ; whether the thing be actual. ly perpetrated or not. Not does it make any difference, whether the offence were felony at common law, or only created so by statute ; since that statute which makes an offence felony, gives it incidentally all the properties of a felony at common law (0) (19).

Thus much for the nature of burglary; which is a felony at common law, but within the benefit of clergy. The statutes however of 1 Edw. Vi. c. 12. and 18 Eliz. c. 7. take away clergy from the principals, and that of 3 & 4 W. & M. c. 9, from all abettors and accessaries before the fact (p) (20). And in like manner, the law of Athens, which punished no simple theft with death, made burglary a capital crime (9).

CHAPTER XVII.

OF OFFENCES AGAINST PRIVATE PROPERTY.

The next and last species of offences against private subjects, are such as more immediately affect their property. Of which there are two, which are attended with a breach of the peace ; larceny, and malicious mischief ; and one, that is equally injurious to the rights of property, but attended with no act of violence ; which is the crime of forgery. Of these three in their order.

I. Larceny, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two sorts; the one called simple larceny, or plain theft unaccompanied with any other atrocious circumstance; and mixed or compound larceny, which also includes in it the aggravation of a taking from one's house or person (1). (0) I Hawk. P. C. 105.

be single felony, and punished with transportation (p) Burglary in any house belonging to the plate for seven years (21). glass company, with intent to steal the stock or (9) Pott. Antiq. b. 1, c. 26. utensile, is by statute 13 Geo. III. c. 38. declared to

(19) But if a servant, intrusted by his mas. was before the commencement of this Act; ter to sell goods, receives money to his use, and every court, whose power as to the trial conceals it in the house instead of paying it of larceny was before the commencement of over, and after his dismissal, breaks the house this Act limited to petty larceny, shall have and steals it, the entry is not burglarious, be- power to try every case of larceny, the punish. cause there was no felony in the original tak- ment of which cannot exceed the punishment ing. 1 Show. 53. And even where prisoners hereinafter mentioned for simple larceny, and were proved to have broken open a house in also to try all accessaries to such larceny." the night time, to recover teas seized for want By $ 3, every person convicted of simple of a legal permit, for the use of the person larceny, or of any felony thereby made punishfrom whom they were taken, an indictment for able like simple larceny, shall (except in the burglary with intent to steal, was holden not cases thereinafter otherwise provided for) be to be supported. 2 East, P. C. 510.

liable to transportation for seven years, or im. (20) All repealed by 7 & 8 Geo. IV. c. 27. prisonment not exceeding two years; and, if a

(21) Re-enacted by 33 Geo. III. c. 17, s male, to one, two, or three public whippings ; 33.

and by 94, where the sentence is imprisonment, (1) By statute 7 and 8 Geo. IV. c. 29, § 2, the courts have a discretionary power to it is enacted, “That the distinction between award hard labour or solitary confinement in grand and petty larceny shall be abolished, addition. This observation has been introand every larceny, whatever be the value of duced here that the reader may observe, how the property stolen, shall be deemed to be of far the present provisions of the law vary from the same nature, and shall be subject

to the the text, in his progress through this imporsame incidents in all respects as grand larceny tant chapter, and to remind him that the subtle And, first, of simple larceny; which, when it is the stealing of goods above the value of twelve-pence, is called grand larceny; when of goods to that value, or under, is petit larceny ; offences which are considerably distinguished in their punishment, but not otherwise (2). I shall therefore first consider the nature of simple larceny in general; and then shall observe the different degrees of punishment inflicted on its two several branches.

Simple larceny then is "the felonious taking, and carrying away, of the personal goods of another.” This *offence certainly [*230] commenced then, whenever it was, that the bounds of property, or laws of meum and tuuin, were established. How far such an offence can exist in a state of nature, where all things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual, in the occupation of what he has seised to his present use, seems to be the only offence of this kind incident to such a state. But unquestionably, in social communities, when property is established, the mecessity whereof we have formerly seen (a), any violation of that property is subject to be punished by the laws of society : though how far that punishment shall extend, is matter of considerable doubt. At present we will examine the nature of theft, or larceny, as laid down in the foregoing definition. 1. It must be a taking (3). This implies the consent of the owner to

(a) See Book II. p. 8, &c. distinctions between grand and petty larceny grand larceny. Stealing public records, &c. are now entirely abolished.

is also the same offence : whether the thief By 0 61, in every felony punishable under be the officer having custody of them or anthis Act, every principal in the second degree, other; any other than such officer may, how. and every accessary before the fact, shall be ever, be punished by fine, or by imprisonment punishable with death, or otherwise, in the in a state-prison or county jail, or by fine and same manner as the principal in the first degree; imprisonment. (Ib. 680.) See ib. as lo value and every accessary after the fact, (except only of property stolen. a receiver of stolen property,) shall on convic. (3) The cases upon this important requisite tion be liable to imprisonment for any term not of the offence of larceny are so numerous, exceeding two years; and every person aiding, and the distinctions so subtle, that it will be abetting, counselling, or procuring the commis- necessary to go into considerable detail to give sion of any misdemeanor punishable under a complete view of the law upon the subject. this Act, shall be liable to be indicted and pu. See in general, 3 Chit. Crim. L. 2 ed. 917 to nished as a principal offender. As to the 924. venue in cases of larceny, see 7 Geo. IV. c. 64, Ist. When offender lawfully acquired the ss. 12 and 13.

session of goods, but under a bare charge, the (2) In New-York, the stealing, taking, and owner still retaining his property in them, the carrying away the personal property of an. offender will be guilty of larceny at common other of the value of 25 dollars or under, is law in embezzling them. Thus in addition to petit larceny, and punishable by imprisonment the instances put by the learned author, of the in a county jail not inore than six months, and butler, the shepherd, and guest at an inn, if a by fine not more than 100 dollars. Grand lar. master deliver property into the hands of a ceny is feloniously taking and carrying away servant for a special purpose, as to leave it at personal property worth more than 25 dollars, the house of a friend, or to get change, or de.. and is punishable by imprisonment in a state posit with a banker, the servant will be guilty prison for not more than 5 years. But if grand of felony in applying it to his own use, for it larceny be committed in a dwelling-house, still remains in the constructive possession of ship, or other vessel, the imprisonment may its owner. 2 Leach, 870. 942; and see 2 be for 8 years : if committed in the night, and East P. C. 563. sed vide East P. C. 562. R. from the person of another, it may be for 10 & R. C. C. 215. 4 Taunt. 258. S. C. years. (2 R. S. 690, Ø 1: and 679, 9. 63, &c.) banker's clerk is sent to the money-room to The severing from the soil of another, pro- bring cash for a particular purpose, and he duce growing thereon worth more than 25 takes the opportunity of secreting some for dollars, or from any building, gate, fence, or his own use, I Leach, 344. he is guilty of larother railing or enclosure, any part thereof, ceny, and see 1 Leach, 251. Kel. 33. Cowp. or any material of which it is formed of like 294. And if several persons play together at value, and taking and converting the same to cards, and deposit money for that purpose, not one's own use with intent to steal, is also parting with their property therein, and one Vol. II.

72

pos.

If a