the peace broken shall be before the king; that is, by indictment in the king's courts; and the assailant may also be sued before the bishop, that excommunication or bodily penance may be imposed: which if the offender will redeem by money, to be given to the bishop, or the party aggrieved, it may be sued for before the bishop; whereas otherwise to sue in any spiritual court for civil damages for the battery, falls within the danger of pramunire.(t) But suits are and always were, allowable in the spiritual court, for money agreed to be giver as a commutation for penance.(u) So that upon the whole it appears, that person guilty of such brutal behaviour to a clergyman is subject to three kind of prosecntion, all of which may be pursued for one and the same offence: an indictment, for the breach of the king's peace by such assault and battery; a civil action, for the special damage sustained by the party injured; and a suit in the ecclesiastical court, first, pro correctione et salute animæ, by enjoining penance, and then again for such sum of money as shall be agreed on for taking off the penance enjoined; *it being usual in those courts to exchange [*218] their spiritual censures for a round compensation in money; (v) perhaps because poverty is generally esteemed by the moralists the best medicine pro salute animæ.(11) VIII. The two remaining crimes and offences, against the persons of his majesty's subjects, are infringements of their natural liberty: concerning the first of which, false imprisonment, its nature and incidents, I must content myself with referring the student to what was observed in the preceding book, (w) when we considered it as a mere civil injury. But besides the private satisfaction given to the individual by action, the law also demands public vengeance for the breach of the king's peace, for the loss which the state sustains by the confinement of one of its members, and for the infringement of the good order of society. We have seen before, (x) that the most atrocious degree of this offence, that of sending any subject of this realm a prisoner into parts beyond the seas, whereby he is deprived of the friendly assistance of the laws to redeem him from such his captivity, is punished with the pains of pramunire, and incapacity to hold any office, without any possibility of pardon.(y) And we may also add, that by statute 43 Eliz. c. 13, to carry any one by force out of the four northern counties, or imprison him within the same, in order to ransom him or make spoil of his person or goods, is felony without benefit of clergy, in the principals and all accessories before the fact. Inferior degrees of the same of fence, of false imprisonment, are also punishable by indictment, (like assaults and batteries) and the delinquent may be fined and imprisoned.(z) And, indeed, (a) there can be no doubt but that all kinds of crimes of a public nature, all disturbances of the peace, all oppressions, and other misdemeanors whatsoever of a notoriously evil example, may be indicted at the suit of the king. *IX. The other remaining offence, that of kidnapping, being the [*219] forcible abduction or stealing away of a man, woman, or child, from their own country, and sending them into another, was capital by the Jewish law. "He that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death."(b) So likewise in the civil law, the offence of spiriting away and stealing men and children; which was called plagium, and the offenders plagiarii, was punished with death.(c) This is unquestionably a very heinous crime, as it robs the king of his subjects, banishes a man from his country, and may in its consequences be productive of the most cruel and disagreeable hardships; and therefore the common law of England has punished it with fine, imprisonment, and pillory.(d) And also the statute 11 and 12 Wm. III, c. 7, though principally intended against pirates, has a clause that extends (t) 2 Inst. 492, 620. (v) Roll. Rep. 384. (11) The punishment is now imprisonment not exceeding two years. Statute 24 and 25 Vic c. 100, § 36. to prevent the leaving of such persons abroad, as are thus kidnapped or spirited away; by enacting, that if any captain of a merchant vessel shall (during his being abroad) force any person on shore, or wilfully leave him behind, or refuse to bring home all such men as he carried out, if able and desirous to return, he shall suffer three month's imprisonment. (12) And thus much for offences that 1.ore immediately affect the persons of individuals. CHAPTER XVI. OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS. 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 outhouse 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 the 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 other; but is more merciful to such as only fire a cottage, or house, standing by itself. (1) (a) Ff. 48, 19, 28, § 12. (12) See statute 24 and 25 Vic. c. 100, for the punishment of abduction and kidnapping. Also, statute 17 and 18 Vic. c. 104, for the punishment of wilfully and wrongfully leaving persons abroad. (1) The English statutes on this subject were revised and consolidated in 24 and 25 Vic. с 97. Section 1 makes it felony, punishable with penal servitude for life, or for any term not less than three years, or with imprisonment not more than two years, with or without whipping, if the offender be a male over sixteen years of age, to set fire, unlawfully and maliciously, to any church, chapel, meeting-house or other place of divine worship. Section 2 imposes the like punishment for setting fire to a dwelling-house, any person being therein. Section 3 imposes the like punishment for setting fire to any house, stable, coach-house, outhouse, warehouse, office, shop, mill, malt-house, hop-oast, barn, storehouse, granary, hovel, shed or fold, or to any farm building, or to any building or erection used in farming land, or in carrying on any trade or manufacture, whether in possession of the offender or not, with intent to injure or defraud any person. And by subsequent sections the unlawfully and maliciously setting fire to buildings belong. ing or appertaining to railways, ports, docks, harbors, or canals, or to public buildings, or "to any buildings other than such as are in this act before mentioned," or to any thing in, against or under a building, under such circumstances that, if the building were thereby set fire to, the offence would be felony, or to crops of hay, grass, corn, grain or pulse, or of any cultivated vegetable produce, standing or cut, or to any wood, coppice or plantation of trees, or to any neath, gorse, furze, or fern, or to stacks of hay, grain, straw, coal, peat, wood, &c., or to coal mines, or to ships or vessels, is also made felony. Attempts to burn the like buildings or property are also provided for by the same act; and, by section 58, it is not essential to any of these offences that they should be committed from the malice conceived against the owner of the property. *Our English law also distinguishes with much accuracy upon this [ *221 ] 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 outhouses 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; though it does, in some cases, by particular statutes. 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. (ƒ) (2) 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) (3) *2. As to what shall be said to be a burning, so as to amount to arson, [ *222 ] 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. () Also, it must be a malicious burning: otherwise it is only a trespass: and, therefore, no negligence or mischance amounts to it. (4) For which reason, though an unqualified person, by (b) 1 Hal. P. C 567. (2) [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 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 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 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 attempts to provoke another to fight or to send a challenge, is guilty of the same offence.] (3) See 2 Bish. Cr. L. § 24. It is usual to provide by statute that the burning one's own house with intent to defraud shall be felony. (4) [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 Fy 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, 8. 5. The maxim malitia supplet atatem applies to this as well as to other cases: for Lord 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 outhouses shall forfeit 1007. 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 habuerint, fustibus vel flagellis cædi." (k) 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 lex talionis; for the incendiaries were burnt to death: (m) as they were also by the Gothic constitutions. (2) The statute 8 Hen. VI, c. 6, inade 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 Edward 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 and 5 P. and M. c. 4, *which expressly denied it to the accessories before the fact; (0) though now it is expressly denied to the prin- [ *223 ] cipal in all cases within the statute 9 Geo. I, c. 22. (5) II. Burglary, or noctural 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 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 shown 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; (4) "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 cases, the public safety superaedes 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 in any other case. (r) (6) *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 [*224] (i) 1 Ial. P. C. 569. (k) Ff. 1, 15, 4. (1) LL. Inae. c. 7. (m) Britt. c. 9. (n) Stiernh. de jure Goth. l. 3. c. 5. (0) 11 Rep. 35. 2 Hal. P. C. 346, 347. Fost. 336. (p) See page 180. (q) pro domo, 41. (r) 1 Hal. P. C. 547. (s) 3 Inst. 63. 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. and Ry. C. C. 207.] As to intent, see further, Reg. v. Paice, 1 C. and K. 73; Reg. v. Wallace, Car. and M. 200; Jesse v. State, 28 Miss. 100; State v. O'Connell, 26 Ind. 266. (5) The punishment of arson is no longer capital in England. (6) The English statute for the punishment of this offense is 24 and 25 Vic. c. 96. The penalty in the discretion of the court is penal servitude for life, or for any term not less thar three years, or imprisonment for any term uc; exceeding two years, with or without hard labor and with or without solitary confinement. 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 burglars 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; (7) for it may be also committed by breaking (u) 3 Inst. 63. 1 Hal. P. C. 350. 1 Hawk. P. C. 101. (v) 3 Inst. 64. (t) See pages 180, 181. (7) [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 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 dwellinghouse, and that burglary might be committed in it, as the house of the landlord. Gibson's Case, Leach, 387. 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. Kel. 84. 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 dwelling-house until he has taken possession and begun 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. and Ry. C. C. 138. So, if the landlord of a house purchases the furniture of his outgoing 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 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. owner. 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 reside 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 ed. 503; Russ. and Ry. C. C. 442, |