BOOK 4, CHAPTER 16 Of Offenses Against the Habitations of Individuals

formado por un único campo de gules en que aparecen tres leones pasantes y

contorneados de oro, lampasados y armados o uñados de azur.

THE only two offenses, that more immediately affect the habitations of individuals or private subjects, are those of arson and burglary.

I. ARSON, ab ardendo [of burning], is the malicious and wilful burning of the house or outhouses of another man. This is an offense of very great malignity, and much more pernicious to the public than simple theft: because, first, it is an offense 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 attends it; and, lastly, because in simple theft the thing stolen only changes its master, but still remains in esse [in being] 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 law1 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.

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 offense; next, wherein the offense itself consists, or what amounts to a burning of such house; and, lastly how the offense 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.2 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.3 The burning of a stack of corn was anciently likewise accounted arson.4 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 offense of arson (strictly so called) may be committed by wilfully setting fire to one’s own house, provided one’s neighbor’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.5 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 behavior.6 And if a landlord or reversioner sets fire to his house, of which another is in possession under a lease from himself or from those whose estate he has, it shall be accounted arson; for, during the lease, the house is the property of the tenant.7

2. AS to what shall be said a burning, so as to amount to arson: a bare intent, or attempt to do it, by actually setting fire to an house, unless it absolutely burns, does not fall within the description of incendit et combussit [burned and consumed]; 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.8 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 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.9 But by statute 6 Ann c. 31. any servant, negligently setting fire to a house or outhouses, shall forfeit 100£, 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 caedi” [“those who have fire carelessly about them shall be beaten with whips or sticks”].10

3. THE punishment of arson was death by our ancient Saxon laws.11 And, in the reign of Edward the first, this sentence was executed by a king of lex talionis [law of retaliation]; for the incendiaries were burnt to death:12 as they were also by the gothic constitutions.13 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 suspension. The offense 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. & M. c. 4. which expressly denied it to the accessory;14 though now it is expressly denied to the principal also, by statute 9 Geo. I. c. 22.

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 offense: 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 chapter15) 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 stiles 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;16 “quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium?” [“For what is more sacred, what more inviolable, than the house of every citizen?”] For this reason no 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 eavesdroppers, 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.17

THE definition of a burglar, as given us by Sir Edward Coke,18 is, “he that by night breaks and enters into a mansion 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,19 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 sunrising, and to end immediately upon sunset; but the better opinion seems to be, that if there be daylight or crepusculum [twilight] enough, begun or left, to discern a man’s face withal, it is no burglary.20 But this does not extend to moonlight; for then many midnight burglaries would go unpunished: and besides, the malignity of the offense 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 defenseless.

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 [the mansion house of God].21 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 gates or walls of a town in the night;22 though that perhaps Sir Edward Coke would have called the mansion-house of the garrison or corporation. Selman defines burglary to be, “nocturna diruptio alicujus habitaculi, vel ecclesiae, etiam murorum portarumve burgi, ad feloniam perpetrandam.” [“The nocturnal breaking open of any habitation or church, or even the walls or gates of a town, for the purpose of committing a felony”] 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 defense: 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 has only left for a short season, animo revertendi [intending to return], is the object of burglary; though no one be in it, at the time of the fact committed.23 And if the barn, stable, or warehouse be parcel of the mansion-house, 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.24 A chamber in a college or an inn of court, where each inhabitant has a distinct property, is, to all other purposes as well as this, the mansion-house of the owner.25 So also is a room or lodging, in any private house, the mansion for the time being of the lodger. The house of a corporation, inhabited in separate apartments by the officers of the body corporate, is the mansion-house of the corporation. And not of the respective officers.26 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 dwellinghouse, nor can burglary be committed therein: for by the lease it is severed from the rest of the house, and therefore is not the dwellinghouse of him who occupies the other part; neither can I be said to dwell therein, when I never lie there.27 Neither can burglary be committed in a tent or booth erected in a market or fair; though the owner may lodge therein:28 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 so fragile a tenement: but 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.29 there must be an actual breaking; not a mere legal clausum fregit [breaking the close], (by leaping over invisible ideal boundaries, which may constitute a civil trespass) but a substantial and forcible irruption. As at least by 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 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. 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.30 But to come down a chimney is held a burglarious entry; for that is as much closed, as the nature of things will permit.31 So also to knock at a door, and upon opening it to rush in, with a felonious intent; or, under pretense of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance, 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 suffer itself to be trifled with by such evasions, especially under the cloak of legal process.32 And so, if a servant opens and enters his master’s chamber door with a felonious design; or if any other person 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:33 for the servant is doing an unlawful act, and the opportunity afforded him, of doing it with greater ease, rather aggravates than extenuates 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.34 The entry may be before the breaking, as well as after: for by statute 12 Ann. c. 7. if a person 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 same, this is declared to be burglary; there having before been different opinions concerning it: lord Bacon35 holding the affirmative, and Sir Matthew Hale36 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.

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, a rape, or any other felony, is burglary; whether the thing be actually perpetrated or not. Nor does it make any difference, whether the offense were felony at common law, or only created so by statute; since that statute, which makes an offense felony, gives it incidentally all the properties of a felony at common law.37

THUS much for the nature of burglary; which is, as has been said, 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 accessories before the fact. And, in like manner, the laws of Athens, which punished no simple theft with death, made burglary a capital crime.38

NOTES

     1.    Ff. 48. 19. 28. § 12.

     2.    1 Hal. P. C. 567.

     3.    3 Inst. 69.

     4.    1 Hawk. P. C. 105.

     5.    Cro. Car. 377.

     6.    1 Hal. P. C. 568. 1 Hawk. P. C. 106.

     7.    Fost. 115.

     8.    1 Hawk. P. C. 106.

     9.    1 Hal. P. C. 569.

   10.    Ff. 1. 15. 4.

   11.    LL. Inne. c. 7.

   12.    Britt. c. 9.

   13.    Stierh. de jure Goth. l. 3. c. 6.

   14.    11 Rep. 35. 2 Hal. 346, 347. Foster. 336.

   15.    See pag. 180.

   16.    Pro. domo, 41.

   17.    1 Hal. P. C. 547.

   18.    3 Inst. 63.

   19.    See pag. 180, 181.

   20.    3 Inst. 63. 1 Hal. P. C. 1 Hawk.

   21.    3 Inst. 64.

   22.    Spelm. Gloss. t. Burglary. 1. Hawk. P. C. 103.

   23.    1 Hal. P. C. Fost. 77.

   24.    1 Hal. P. C. 558. 1 Hawk. P. C. 104.

   25.    1 Hal. P. C. 556.

   26.    Foster. 38, 39.

   27.    1 Hal. P. C. 558.

   28.    1 Hawk. P. C. 104.

   29.    1 Hal. P. C. 551.

   30.    Ibid. 553.

   31.    1 Hawk. P. C. 102. 1 Hal. P. C. 552.

   32.    Hawk. P. C. 102.

   33.    1 Hal. P. C. 553. 1 Hal. P. C. 103.

   34.    1 Hal. P. C. 1 Hawk. P. C. 103.

   35.    Elem. 65.

   36.    1 Hal. P. C. 554.

   37.    1 Hawk. P. C. 105.

   38.    Pott. Antiq. b. 1. c. 26.

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