manner as the Roman law directed, " eos, qui negligenter ignes apud se ha buerint, fustibus vel flagellis caedi (k) (8).”

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 (n). The statutes 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 c. 1, but that statute was repealed by 1 Edw VI.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 [*223] statute 4 & 5 P. & M. c. 4, *which expressly denied it to the ac

cessary before the fact (o); though now it is expressly denied to the principal in all cases within the statute 9 Geo. I. c. 22 (9).

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 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 into the assistance of the weaker party; and, besides that they leave him this natural right of killing the aggressor, if he can (as was shewn in a former chapter) (p), they also protect and avenge him, in case the might of the assailant is too powerful (10). And the law of England has so particular and

(k) Ff. 1. 15. 4.
(1) LL. Inae, c. 7.
(m) Britt. c. 9.

(8) The punishment inflicted by 6 Ann. c. 31, was again inflicted by 14 Geo. III. c. 78, 84; which appears to be unrepealed.

(9) See post, 246. for the act.

(10) 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 and 8 Geo. ÏV. c. 29, § 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 dwellingbouse, in the night time, such person shall be deemed guilty of burglary.

Section 12 enact, that if any person shall

(n) Stiernh. de jure Goth. 1. 3, c. 6.

(0) 11 Rep. 35. 2 Hal. P. C. 346, 347. Fost 336. (p) See page 180.

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 51. 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 suen dwelling-house for the purposes of burglary, or for any of the purposes aforesaid, unless there shall be a communication between such building and dwelling-house, either immedi ate, or by means of a covered and enclosed passage leading from the one to the other.

Section 14 enacts, that if any person shal 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 provi sion hereinbefore mentioned, every such of

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 here in with the sentiments of ancient Rome, as expressed in the words of Tully (q); " quid enim sanctius, quid omni religione munitius, quam domus uniuscu jusque civium?" 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) (11).

The definition of a burglar (12), as given us by sir Edward [224] Coke (s), is he that by night breaketh and entereth into a man

sion-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 (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 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 defence⚫less.

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 (13), (14); for it

(13) The new statute does not contain the word mansion, which was formerly held to comprehend out-houses, if parcel of the dwelling-house; the consequences of which, and of the new provisions in ss. 13 and 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 of his family, slept in the house, it is not his dwellinghouse, 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 dwelling-house, and that burglary might be committed in it, as the house of the landlord. Gibson's case, Leach, 987. 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.

(v) 3 Inst. 64.

Kel. 84.

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

(14) As to the residence, from all the cases, it appears that it must be a place of actual re sidence. 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 ca anot be

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

(z) 1 Hal. P. C. 566. Fost. 77. deemed his dwelling-house, until he has taken possession and began 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 break ing 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, burglay may be committed in breaking it, and it may be laid to be the executors' property. 2 East, P. C. 499.

t 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,

(y) K. v. Garland, P. 16 G. III. by all the judges. (z) 1 Hal. P. C. 558. 1 Hawk. P. C. 104.

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 noctur. nal 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 edit. 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 ware house only, though he had persons (not of his family) to sleep in it to guard the property, i: was held, it could not be considered the prosecutors 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, 8,

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 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 therefore is not the dwelling-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 waggon in the same circum

stances.

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.

(b) Kel. 84. 1 Hal. P. C. 556. (c) Foster, 38, 39.

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

(15) So to push open massive doors which shut by their own weight, is burglarious, though there is no actual fastening. 2 East, P. C. 487. Pulling down the sash of a window is a breaking, though it has no fastening, and is only kept in its place by the pulley weight; it is equally a breaking, although there is an outer shutter which is not put to. Russ. & Ry. C. C. 451. And where a window opens upon hinges, and is fastened by a wedge, so that pushing against it will open it, forcing it open by pushing against it is sufficient to constitute a breaking. Russ. & Ry. C. C. 355. But where the prisoner broke out of a cellar by lifting up a heavy flap, by which the cellar was closed on the outside next the street; the flap was not bolted, but it had bolts. Six of the learned judges were of opinion that there was a sufficient breaking to constitute burglary; the remaining six were of a contrary opinion. Russ. & Ry. C.

(e) 1 Hawk. P. C. 104.
(f) 1 Hal. P. C. 553.
(g) Ibid.

C. 157. And it is to be observed, that even when the first entry is a mere trespass, being as per janua aperta, if the thief afterwards breaks open any inner room, he will be guilty of burglary 1 Hale, 553: and this may be done by a servant who sleeps in an adjacent room, unlatching his master's door, and entering his apartment, with intent to kill him. 1 Hale, 344. But lord Hale doubts whether a guest at an inn is guilty of burglary by rising in the night, opening his own door, and stealing goods from other rooms. 1 Hale, 554. And it seems certain that breaking open a chest or trunk, is not in itself burglarious, Fost. 108, 9: and according to the better opi nion, the same principle applies to cupboards, presses, and other fixtures, which, though at tached to the freehold, are intended only the better to supply the place of moveable depositories. Fost. 109.

(16) It will be burglary to unlatch an inner