the court information; and others have held that what the child told her mother or other relations may be given in evidence, since the nature of the case admits frequently of no better proof. But it is now settled [Brazier's case, before the twelve judges, P. 19, Geo. III.] that no hearsay evidence can be given of the declaration of a child who hath not capacity to be sworn, nor can such child be examined in court without oath; and that there is no determinate age at which the oath of the child ought either to be admitted or rejected. Yet, where the evidence of children is admitted, it is much to be wished, in order to render their evidence credible, that there should be some concurrent testimony of time, place, and circumstances, in order to make out the fact; and that the conviction should not be grounded singly on the unsupported accusation of an infant under years of discretion. There may be, therefore, in many cases of this nature, witnesses who are competent, that is who may be admitted to be heard, and yet, after being heard, may prove not to be credible or such as the jury is bound to believe. Crime Against Nature.

IV. What has been here observed, especially with regard to the manner of proof, which ought to be more clear in proportion as the crime is the more detestable, may be applied to another offence of a still deeper malignity, the infamous crime against nature, committed either with man or beast.

This the voice of nature and of reason and the express law of God determined to be capital. And this offence was made felony without benefit of clergy by statute 25 Hen. VIII. c. 6, revived and confirmed by 5 Eliz. c. 17.

Inferior Offences,

These are all the felonious offences more immediately against the personal security of the subject. The inferior offences or misdemeanours that fall under this head are assaults, batteries, wounding, false imprisonment, and kidnapping.

Assaults, Batteries, Wounding.

V., VI., VII. With regard to the nature of the three first of these offences in general, I have nothing further to add to what has already been observed in the preceding book of these commentaries, when we consider them as private wrongs or civil injuries, for which a satisfaction or remedy is given to the party aggrieved. But taken in a public light, as a breach of the king's peace, an affront to his government, and a damage done to his subjects, they are also indictable and punishable with fines and imprisonment, or with other ignominious corporal penalties, where they are committed with any very atrocious design; as in case of an assault with intent to murder, or with an intent to commit either of the crimes last spoken of.

False Imprisonment.

VIII. The two remaining crimes and offences against the person 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 volume, when we considered it as a mere civil injury. Inferior degrees of the same offence of false imprisonment are also punishable by indictment (like assaults and batteries), and the delinquent may be fined and imprisoned. And, indeed, there can be no doubt but that all kinds of crimes of public nature, all disturbances of the peace, all oppressions and other misdemeanours whatsoever, of a notoriously evil example, may be indicted at the suit of the king.

Kidnapping.

IX. The other remaining offence, that of kidnapping, being the forcible abduction or stealing away of a man, woman, or child from their own country and sending them into another, the common law of England has punished with fine, imprisonment and pillory.

Chapter XVI.

OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS.

Arson.

220-229.

The only two offences that more immediately affect habitations of individuals or private subjects are those of arson and burglary.

I. Arson, ab ardendo, is malicious and wilful burning the house or outhouse of another man.

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. 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. The burning of a stack of corn was anciently likewise accounted arson. The offence 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 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. 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 wilfully 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. 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.

2. As to what shall be said to be a burning, so as to amount to arson, a bare intent, or attempt to do it by acually 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. 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 opinions of former writers, but it was made a felony by the general acts of Edward VI. and Queen Mary: and now the punishment of all capital felonies is uniform, namely, by hanging.

Burglary.

II. Burglary, or nocturnal housebreaking, burgi latrocinium, has always been looked upon as a very heinous offence.

The definition of a burglar, as given by Sir Edward Coke, is "he that by night breaketh and entereth 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. 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 enough, begun or left, to discern a man's face withal, it is no burglary. But this does not extend to moonlight, for then many midnight burglaries would go unpunished.

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. 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. And therefore we may safely conclude that the requisite of its being domus man

sionalis 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 object of burglary, though no one be in it at the time of the act committed. And if the barn, stable, or warehouse be parcel of the mansion-house, and within the same common fence, 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. 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. 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 has 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. 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 dwelling-house of him who occupies the other part; neither can I be said to dwell therein when I never lie there. Neither can burglary be committed in a tent or booth erected in a market or fair, though the owner may lodge therein; 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.

As to the manner of committing burglary: there must be both a breaking and an entry to complete it. But they need not both be 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. 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. But if a person leaves his doors or windows open, it is his own folly or negligence, and if a man enters therein it is no burglary; yet, if he afterwards unlocks an inner or chamber door, it is so. 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 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. 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 any 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; 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. The entry may be before the breaking, as well as after: for, by statute 12 Anne, c. 7, if a person enters into the dwelling-house of another without breaking in, either by day or by night, with intent to commit felony, or being in such a house shall commit any felony, and shall in the night break out of the same, this is declared to be burglary. 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 offence were felony at