The Online Library of Liberty

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• Commentaries On the Laws of England.
• Book the Third.: of Private Wrongs.
• Chapter I.: Of the Redress of Private Wrongs By the Mere Act of the Parties.
• Chapter II.: Of Redress By the Mere Operation of Law.
• Chapter III.: Of Courts In General.
• Chapter IV.: Of the Public Courts of Common Law and Fquity.
• * [*61 Chapter V.: Of Courts Ecclesiastical, Military, and Maritime.
• Chapter VI.: Of Courts of a Special Jurisdiction.
• Chapter VII.: Of the Cognizance of Private Wrongs.
• Chapter VIII.: Of Wrongs, and Their Remedies, Respecting the Rights of Persons.
• Chapter IX.: Of Injuries to Personal Property.
• Chapter X.: Of Injuries to Real Property; and First of Dispossession, Or Ouster of the Freehold.
• Chapter XI.: Of Dispossession, Or Ouster, of Chattels Real.
• Chapter XII.: Of Trespass.
• Chapter XIII.: Of Nuisance.
• Chapter XIV.: Of Waste.
• Chapter XV.: Of Subtraction.
• Chapter XVI.: Of Disturbance.
• Chapter XVII.: Of Injuries Proceeding From, Or Affecting, the Crown.
• Chapter XVIII.: Of the Pursuit of Remedies By Action; and First of the Original Writ.
• Chapter XIX.: Of Process.
• Chapter XX.: Of Pleading
• Chapter XXI.: Of Issue and Demurrer.
• Chapter XXII.: Of the Several Species of Trial.
• Chapter XXIII.: Of the Trial By Jury.
• Chapter XXIV.: Of Judgment and Its Incidents.
• Chapter XXV.: Of Proceedings In the Nature of Appeals.
• Chapter XXVI.: Of Execution.
• Chapter XXVII.: Of Proceedings In the Courts of Equity.
• Appendix.
• No. I.: Proceedings On a Writ of Right Patent.
• * *vii.] No. II.: Proceedings On an Action of Trespass In Ejectment, By Original, In the King’s Bench.
• * [*xiii. No. III.: Proceedings On an Action of Debt In the Court of Common Pleas; Removed Into the King’s Bench By Writ of Error.
• Book the Fourth.: of Public Wrongs.
• Chapter I.: Of the Nature of Crimes, and Their Punishment.
• Chapter II.: Of the Persons Capable of Committing Crimes.
• Chapter III.: Of Principals and Accessories.
• Chapter IV.: Of Offences Against God and Religion.
• * [*66 Chapter V.: Of Offences Against the Law of Nations.
• Chapter VI.: Of High Treason.
• Chapter VII.: Of Felonies Injurious to the King’s Prerogative.
• Chapter VIII.: Of PrÆmunire.
• Chapter IX.: Of Misprisions and Contempts Affecting the King and Government.
• Chapter X.: Of Offences Against Public Justice.
• Chapter XI.: Of Offences Against the Public Peace.
• Chapter XII.: Of Offences Against Public Trade.
• Chapter XIII.: Of Offences Against the Public Health, and the Public Police Or Economy.
• Chapter XIV.: Of Homicide.
• Chapter XV.: Of Offences Against the Persons of Individuals.
• Chapter XVI.: Of Offences Against the Habitations of Individuals.
• Chapter XVII.: Of Offences Against Private Property.
• Chapter XVIII.: Of the Means of Preventing Offences.
• Chapter XIX.: Of Courts of a Criminal Jurisdiction.
• Chapter XX.: Of Summary Convictions.
• Chapter XXI.: Of Arrests.
• Chapter XXII.: Of Commitment and Bail.
• Chapter XXIII.: Of the Several Modes of Prosecution.
• Chapter XXIV.: Of Process Upon an Indictment.
• Chapter XXV.: Of Arraignment and Its Incidents.
• Chapter XXVI.: Of Plea, and Issue.
• Chapter XXVII.: Of Trial and Conviction.
• Chapter XXVIII.: Of the Benefit of Clergy.
• Chapter XXIX.: Of Judgment and Its Consequences.
• Chapter XXX.: Of Reversal of Judgment.
• Chapter XXXI.: Of Reprieve and Pardon.
• Chapter XXXII.: Of Execution.
• Chapter XXXIII.: Of the Rise, Progress, and Gradual Improvements of the Laws of England.
• Appendix.
• Sect. 1.: Record of an Indictment and Conviction of Murder, At the Assizes.
• Sect. 2.: Conviction of Manslaughter.
• Sect. 3.: Entry of a Trial Instanter In the Court of King’s Bench, Upon a Collateral Issue; and Rule of Court For Execution Thereon.
• Sect. 4.: Warrant of Execution On Judgment of Death, At the General Gaol-delivery In London and Middlesex.
• Sect. 5.: Writ of Execution Upon a Judgment of Murder, Before the King In Parliament.
• Barron Field, an Analysis of Blackstone’s Commentaries On the Laws of England.

CHAPTER XVI.

OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS.

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

1. Arson, ab ardendo, is the malicious and wilful burning the house or out-house of another man. This is an offence of very great malignity, and much more pernicious to the public than simple theft, because, first, it is an offence 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 attend it; and, lastly, because in simple theft the thing stolen only changes its master, but still remains in esse 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 law(a) 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.

**221]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 offence; next, wherein the offence itself consists, or what amounts to a burning of such house; and, lastly, how the offence is punished.

1. Not only the bare dwelling-house, but all out-houses that are parcel thereof, though not contiguous thereto, nor under the same roof, as barns and stables, may be the subject of arson.(b) 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.(c) The burning of a stack of corn was antiently likewise accounted arson.(d)1 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 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)2 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)3

*[*2222. 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 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.4 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.(i) 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)5

3. The punishment of arson was death by our antient Saxon laws.(l) And 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, **223]which expressly denied it to the accessory before the fact;(o) 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.6 And the law of England has 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?” 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)

*[*224The 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 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.7

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,8 for it 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 **225]habitaculi, vel ecclesiæ, 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-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 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 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 by the lease *[*226it 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 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, or unloosing any other fastening which the owner has provided.9 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)10 But to come down a chimney is held a burglarious entry; for that is as much closed as the nature of things will permit.(h) So, also, to knock at the 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 **227]no actual breaking; for the law will not suffer itself to be trifled with by such evasions, especially under the cloak of legal process.(i) 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;(k) 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.(l)11 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, there having before been different opinions concerning it, lord Bacon(m) holding the affirmative and Sir Matthew Hale(n) 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.12

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, *[*228a 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 common law, or only created so by statute; since that statute which makes an offence felony gives it incidentally all the properties of a felony at common law.(o)13

Thus much for the nature of burglary, which is a felony at common law but within the benefit of clergy. The statutes, however, of 1 Edw. VI. c. 12, and 18 Eliz. c. 7, take away clergy from the principals, and that of 3 & 4 W. and M. c. 9, from all abettors and accessories before the fact.(p) And, in like manner, the law of Athens, which punished no simple theft with death, made burglary a capital crime.(q)14

[(a) ]Ff. 48, 19, 28, 12.

[(b) ] 1 Hal. P. C. 567.

[(c) ] 3 Inst. 69.

[(d) ] 1 Hawk. P. C. 105.

[1 ] This is declared to be arson, by 7 & 8 Geo. IV. c. 30, 17, and is made a capital offence; and the setting fire to any crops of corn, grain, or pulse, whether standing or cut down, or to any woods or heaths, is made felony, punishable with transportation for seven years, or imprisonment not exceeding two years, with whipping to male offenders in addition.—Chitty.

[(e) ] Cro. Car. 377. 1 Jon. 351.

[(f) ] 1 Hal. P. C. 568. 1 Hawk. P. C. 106.

[2 ] 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 in tention 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.

[(g) ] Fost. 15.

[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.

[(h) ] 1 Hawk. P. C. 106.

[4 ] 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 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.

[(i) ] 1 Hal. P. C. 569.

[(k) ]Ff. 1, 15, 4.

[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.

[(l) ]LL. Inæ, c. 7.

[(m) ] Butt. c. 9.

[(n) ] Stiernhook, de jure Goth. l. 3, c. 6.

[(o) ] 11 Rep. 35. 2 Hal. P. C. 346, 347. Fost. 336.

[(p) ] See page 180.

[6 ] 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 5l. 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 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 hereinbefore mentioned, every such offender, being convicted thereof, either upon an indictment for the same offence or upon an indictment for burglary, house-breaking, or stealing to the value of 5l. 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.

[(q) ]Pro domo, 41.

[(r) ] 1 Hal. P. C. 547.

[(s) ] 3 Inst. 63.

[(t) ] See pages 180, 181.

[(u) ] 3 Inst. 63. 1 Hal. P. C. 350. 1 Hawk. P. C. [Editor: illegible character]

[7 ] 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.

[(v) ] 3 Inst. 64.

[8 ] 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 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. 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 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 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. 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. 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 properly the subjects of consideration 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 residence. 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. 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.

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

[(x) ] 1 Hal. P. C. 566. Fost. 77.

[(y) ] King vs. Garland, P. 16 Geo. III. by all the judges.

[(z) ] 1 Hal. P. C. 558. 1 Hawk. P. C. 104.

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

[(b) ] Kelw. 84. 1 Hal. P. C. 556.

[(c) ] Fost. 38, 39.

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

[(e) ] 1 Hawk. P. C. 104.

[(f) ] 1 Hal. P. C. 553.

[9 ] 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. 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, 554. 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, 109;) and, according to the better opinion, the same principle applies to cupboards, presses, and other fixtures, which, though attached to the freehold, are intended only the better to supply the place of movable depositories. Fost. 109.—Chitty.

[(g) ] 1 Hal. P. C. 553.

[10 ] It will be burglary to unlatch an inner door with a felonious intent; and whatever would be a breaking of an outer door will also be a breaking of an inner door to constitute burglary. See 2 East, P. C. 488.

But it does not seem to be a burglary to break the doors of cupboards, presses, and closets. Ibid.—Chitty.

[(h) ] 1 Hawk. P. C. 102. 1 Hal. P. C. 552.

[(i) ] 1 Hawk. P. C. 102.

[(k) ] Stra. 881. 1 Hal. P. C. 553. 1 Hawk. P. C. 103.

[(l) ] 1 Hal. P. C. 555. 1 Hawk. P. C. 103. Fost. 108.

[11 ] So if the prisoner breaks open a shop-window and with his hand takes out goods, the offence is complete. Fost. 107. Russ. & Ry. C. C. 499, S. P. Introducing the hand between the glass of an outer window and an inner shutter is sufficient entry to constitute burglary. Russ. & Ry. C. C. 341. And where several having broken open a house, and, attempting to enter, are opposed by the owner, and in making a pass at him the hand of one of the party is within the threshold, he will be guilty of burglary. 1 Hale, 553. If, however, an instrument has been thrust into the window, not for the purpose of taking out property, but only calculated to form the aperture, this will not be regarded as an entry, (1 Leach, 406;) or if a house be broken open, and the owner, through the fear occasioned by the circumstance, throw out his money, the burglary will not be completed. 1 Hale, 555. It seems doubtful whether shooting through a window is sufficient by the entry of the shot discharged; but it seems the better opinion that it is, as in this case a felony by killing is as much attempted as in the introduction of an instrument a felony by stealing is attempted. 1 Hale, 555. Hawk. b. i. c. 38, s. 7. See 4 Camp. 220. 1 Stark. 58.—Chitty.

[(m) ] Elm. 65.

[(n) ] 1 Hal. P. C. 554.

[12 ] The act now in force is 7 & 8 Geo. IV. c. 27.—Chitty.

[(o) ] 1 Hawk. P. C. 105.

[13 ] But if a servant intrusted by his master to sell goods receives money to his use, conceals it in the house instead of paying it over, and, after his dismissal, breaks the house and steals it, the entry is not burglarious, because there was no felony in the original taking. 1 Show. 53. And even where prisoners were proved to have broken open a house in the night-time, to recover teas seized for want of a legal permit for the use of the person from whom they were taken, an indictment for burglary with intent to steal was holden not to be supported. 2 East, P. C. 510.—Chitty.

[(p) ] Burglary in any house belonging to the Plate-Glass Company, with intent to steal the stock or utensils is, by stat. 13 Geo. III. c. 38, declared to be single felony, and punished with transportation for seven years.

[(q) ] Pott. Antiq. b. i. c. 26.

[14 ] The punishment of this crime now varies according to the circumstances under which it is committed, it being enacted, by stat. 1 Vict. c. 86, s. 2, that whoever shall burglariously break and enter into any dwelling-house, and shall assault with intent to murder any person being therein, or shall stab, cut, wound, beat, or strike such person, shall be guilty of felony punishable with death; but, by s. 3, the simple crime of burglary is punishable only with transportation for life or for not less than ten years, or imprisonment for three years,—and now penal servitude may be substituted. And now, further, by stat. 14 & 15 Vict. c. 19, ss. 1, 2, any person found by night armed with any dangerous weapon, with intent to enter any dwelling and to commit felony therein, or found in the possession, without lawful excuse, of housebreaking instruments, or with his face blackened or disguised, or found by night in any building with intent to commit any felony, shall be guilty of a misdemeanour, punishable with imprisonment, with or without hard labour, not exceeding three years,—and now with penal servitude.—Stewart.