neither can I be faid to dwell therein,, when I neves lie there'. Neither can burglary be committed in a tent or booth erected in a market or fair; though the owner may lodge thereina: for the law regards thus highly nothing but permanent edifices; a house, or church, the wall, or gate of a town; and it is the folly of the owner to lodge in fo fragile a tenement: but his lodging there no more makes it burglary to break it open, than it would be to uncover a tilted waggon in the fame 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 fame breakers enter the next night through the fame, they are burglars. There must be an actual breaking ; not a mere legal claufum fregit, (by leaping over invifible ideal boundaries, which may conftitute a civil trefpafs) but a substantial and forcible irruption. As at leaft by breaking, or taking out the glass of, or otherwife opening, a window; picking a lock, or opening it with a key; nay, by lifting up the latch of a door, or unloofing any other fastening which the owner has provided. But if a perfon 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 fof. But to come down a chimney is held a burglarious entry; for that is as much closed, as the nature of things will permit. So also to knock at a 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 conftable to gain admittance, in order to search for traitors, and then to bind the conftable and rob the house; all these entries have been adjudged burglarious, though there was no actual breaking: for the law will not fuffer itself to be trifled with by such evasions, efpecially under the cloke of legal process. And so, if a servant

opens and enters his master's chamber door with a felonious defign; or if any other perfon lodging in the same house, or in a public inn, opens and enters another's door, with fuch evil intent; it is burglary. Nay, if the servant confpires with a robber, and lets him into the house by night, this is burglary in both for the fervant is doing an unlawful act, and the opportunity afforded him, of doing it with greater eafe, rather aggravates than extenuates the guilt. As for the As for the entry, any the least degree of it, with any part of the body, or with an inftrument held in the hand, is fufficient: 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. The entry may be before the breaking, as well as after : for by statute 12 Ann. c. 7. if a perfon enters into, or is within, the dwelling house of another, without breaking in, either by day or by night, with intent to commit felony, and shall in the night break out of the fame, this is declared to be burglary; there having before been different opinions concerning it: lord Bacon' holding the affirmative, and fir Matthew HaleTM the negative. But it is univerfally agreed, that there must be both a breaking, either in fact or by implication, and also an entry, in order to complete the burglary.

4. As to the intent; it is clear, that such breaking and entry must be with a felonious intent, otherwife it is only a trefpafs. And it is the fame, whether fuch intention be actually carried into execution, or only demonftrated by fome 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, a rape, or any other felony, is burglary; whether the thing be actually perpetrated Nor does it make any difference, whether the offence were felony at common law, or only created fo by ftatute; fince

or not.

that statute, which makes an offence felony, gives it incidentally all the properties of a felony at common law ".

THUS much for the nature of burglary; which is, as has been faid, a felony at common law, but within the benefit of clergy. The statute however of 18 Eliz. c.7. takes away clergy from the principals, and that of 3 & 4 W. & M. c. 9. from all acceffories before the fact. And, in like manner, the laws of Athens, which punished no fimple theft with death, made burglary a capital crime °.

I Hawk. P. C. 105.

Pott. Antiq. b. 1. c. 26.

CHAPTER THE SEVENTEEN T H.

OF OFFENCES AGAINST PRIVATE PROPERTY.

Τ

HE next, and laft, fpecies of offences against private subjects, are such as more immediately affect their pr

Tjects, xe fuch as more property.

Of which there are two, which are attended with a breach of the peace; larciny, and malicious mifchief: 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. LARCINY, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two forts; the one called fimple larciny, or plain theft unaccompanied with any other atrocious circumstance; and mixt or compound larciny, which also includes in it the aggravation of a taking from one's house or perfon.

AND, first, of fimple larciny: which, when it is the stealing of goods above the value of twelvepence, is called grand larciny; when of goods to that value, or under, is petit larciny: offences, which are confiderably distinguished in their punishment, but not otherwife. I fhall therefore firft confider the nature of fimple larciny in general; and then shall observe the different degrees of punishment, inflicted on it's two feveral branches.

SIMPLE

SIMPLE larciny then is "the felonious taking, and carrying away, of the perfonal goods of another." This offence certainly commenced then, whenever it was, that the bounds of property, or laws of meum and tuum, were established. How far fuch an offence can exift in a state of nature, where all things are held to be common, is a queftion that may be folved with very little difficulty. The disturbance of any individual, in the occupation of what he has seised to his prefent 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 neceffity whereof we have formerly feen, any violation of that property is subject to be punished by the laws of society: though how far that punishment should extend, is matter of confiderable doubt. At prefent we will examine the nature of theft, or larciny, as laid down in the foregoing definition.

1. IT must be a taking. This implies the confent of the owner to be wanting. Therefore no delivery of the goods from the owner to the offender, upon truft, can ground a larciny. As if A lends B a horse, and he rides away with him; or, if I fend goods by a carrier, and he carries them away; these are no larcinies. But if the carrier opens a bale or pack of goods, or pierces a veffel of wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole, these are larcinies: for here the animus furandi is manifeft; fince in the first case he had otherwise no inducement to open the goods, and in the fecond the trust was determined, the delivery having taken it's effect. But bare non-delivery shall not of course be intended to arise from a felonious defign; fince that may happen from a variety of other accidents. Neither by the common law was it larciny in any fervant to run away with the goods committed to him to keep, but only a breach of civil truft. But by statute 33 Hen. VI. c. 1. the fervants of perfons