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 burned; 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 misdemeanour, and punishable by fine, imprisonment, pillory, and perpetual sureties for the good behaviour.(f) 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)

*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.(h) Also it must be a malicious burning; otherwise it is only a trespass; and therefore no negligence or mischance amounts to it. For which reason, though an unqualified person, by shooting

years, or imprisonment not exceeding two years, with shipping to male offenders in addition.-CHITTY.

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 misdemeanour; and that every attempt to commit a felony is a misdemeanour; and, in general, an attempt to commit a misdemeanour 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 misdemeanour. Rex vs. Higgins, 2 East, 5.

Voluntas reputatur pro facto is still true, both in treason and misdemeanour; 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 misdemeanour; and he who designedly attempts to provoke another to fight or to send a challenge, is guilty of the same offence.-CHRISTIAN.

3 It has been expressly 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.-CHRISTIAN. But these distinctions are now annihilated, by 7 & 8 Geo. IV. c. 30. ? 2, which enacts 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, hop-oast, 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.-CHITTY.

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. i. 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 VOL. II.--31

481

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.(?) But, by statute 6 Anne, c. 31, any servant negligently setting fire to a house or outhouses shall forfeit 100l. 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)

And

3. The punishment of arson was death by our antient Saxon laws. (1) in the reign of Edward the First, this sentence was executed by a kind of lex talionis; for the incendiaries were burned to death :(m) as they were also by the Gothic constitutions. (n) The statute 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 statute 4 & 5 P. and M. c. 4, *which expressly denied it to the accessory be*223] fore the fact;(0) though now it is expressly denied to the principal in all cases within the statute 9 Geo. I. c. 22.

II. Burglary, or nocturnal housebreaking, burgi latrocinium, which by our antient 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

1 Hal. P. C. 569.

Ff. 1, 15, 4.

(1) LL. Ina, c. 7.
(m) Britt. c. 9.

(*) Stiernhook, de jure Goth. l. 3, c. 6.
11 Rep. 35. 2 Hal. P. C. 346, 347. Fost. 336.
(P) See page 180.

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 consequences of his own act. Russ. & Ry. C. C. 207.-CHITTY.

5 The punishment inflicted by 6 Anne, c. 31 was again inflicted by 14 Geo. III. c. 78, s. 84, which appears to be unrepealed.-CHITTY.

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 & 8 Geo. IV. c. 29, s. 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 dwelling-house shall commit any felony, and shall in either case break out of the said dwelling-house in the night-time, such person shall be deemed guilty of burglary.

Section 12 enacts that if any person shall break and enter any dwelling-house, and steal therein any chattel, money, or valuable security 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 57. 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

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 antient Rome, as expressed in the words of Tully :(q) "quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium 2" 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)

*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 [*224 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 daytime 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, antiently the day was accounted to begin only at sunrising and to end immediately upon sunset; 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, for it may also be committed by breaking the

(4) Pro domo, 41.

1 Hal. P. C. 547. *) 3 Inst. 63.

(t) See pages 180, 181.

() 3 Inst. 63. 1 Hal. P. C. 350. 1 Hawk. P. C. 11. (") 3 Inst. 64.

there shall be a communication between such building and dwelling-house, either immediate 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 provision herein before mentioned, every such offender, being convicted thereof, either upon an indictment for the same offence or upon an indictment for burglary, housebreaking, or stealing to the value of 57. 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 chattel, 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.-CHITTY.

'No difficulty, however, can now arise on this point, as the time in which the crime of burglary can be committed is expressly defined, by stat. 1 Vict. c. 86, s. 4, to commence at nine o'clock in the evening of each day and to conclude at six o'clock in the morning of the next succeeding day. STEWART.

The new statute does not contain the word mansion, which was formerly held to comprehend out-houses, if parcel of the dwelling-house; the consequence of which, and of the new provisions in ss. 13 & 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

gates on 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 *225] defines burglary to be "nocturna diruptio alicujus *habitaculi, vel ecclesiæ, etiam murorum portarumve burgi, ad feloniam perpetrandam." And there

(w) Spelm. Gloss. tit. Burglary. 1 Hawk. P. C. 103.

of his family, slept in the house, it is not his dwelling-house so as to be the subject of burglary. Rex vs. Martin, R. & 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 vs. Wilson, R. & R. Č. 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 vs. 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 dwellinghouse 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.

With respect to the new provisions contained in ss. 13 & 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 vs. Robinson, R. & R. C. Č. 321. The other clauses of this statute, namely, s. 10, as to sacrilege, or bur glary and stealing in a church or chapel; s. 12, as to housebreaking and stealing in s house; and s. 15, as to robbery in a shop, will be more properly the subjects of considera tion and exposition in the succeeding chapter, 17, to which the reader is referred.

As to the residence: from all the cases, it appears that it must be a place of actual resi dence. 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. & Ry. C. C. 138. So, if the landlord of a house purchase the furniture of his out-going 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 owner. 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.

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 resides 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.

fore 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-houses, 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 bject 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 home-stall.(z) 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 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.(b) Thus, too, the house of a corporation inhabited in separate apartments by the officers of the body corporate is the mansionhouse 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 by the lease *it is severed from the rest of the house, and therefore is not the dwell[*226 ing-house of him who occupies the other part; neither can I be said to dwell therein when I never lie there.(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 wagon 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,

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

(King vs. Garland, P. 16 Geo. III. by all the judges.

(*) 1 Hal. P. C. 558. 1 Hawk. P. C. 104.

(a) 1 Hal. P. C. 556.

(*) Kelw. 84. 1 Hal. P. C. 556.

(c) Fost. 38, 39.
d) 1 Hal. P. C. 558.
1 Hawk. P. C. 104.

1 Hal. P. C. 553.

1 Burn, J. 24th ed. 503. Russ. & Ry. C. C. 442, S. C. But in an indictment for larceny from a dwelling-house, where the prosecutor left his house without any intention of living in it again, and intending to use it as a warehouse only, though he had persons (not of his family) to sleep in it to guard the property, it was held it could not be considered the prosecutor's dwelling-house to support the charge. Russ. & Ry. C. C. 187. And if the occupier of a house removes from it with his whole family and takes away so much of his goods as to leave nothing fit for the accommodation of inmates, and has no settled idea of returning to it, but rather intends to let it, the offence will be merely larceny. Fost. 76. And the mere casual use of a tenement will not suffice; and therefore the circumstance of a servant sleeping in a barn, or porter in a warehouse, for particular and temporary purposes, will not so operate as to make a violent entry in the night, in order to steal, a burglary. 1 Hale, 557, 558.-CHITTY.