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CHAPTER THE SIXTEENTH.
OF OFFENCES AGAINST THE HABITA
TIONS OF INDIVIDUALS.
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 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. [ 221 ] upon this crime. And therefore we will enquire, first, what
! • Ff. 48. 19. 28. $12.
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 . 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 antiently likewise accounted arson . 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 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. 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 misdemesnor, and punishable by fine, imprisonment, pillory, and perpetual sureties for the good behaviour (14). t i Hal. P.C.567.
e Cro. Car. 377. i Jon.351. os Inst. 67.
fi Hal. P.C. 568. i Hawk. P. C. • 1 Hawk. P.C. 6.39. $ S. c.39. $ 15.
(14) The 43 G.5. č. 58., which I have already had occasion to cite several times, makes it a capital felony wilfully and maliciously to set fire to any house, barn, granary, hop-oast, outhouse, mill, warehouse, or shop, whether the same shall then be in the party's own possession or not, if it be done with intent to injure or defraud his majesty, any of his subjects, or any body corporate. The principal object of this enactment was to comprise the cases of persons burning houses, mills, &c., of which they are tenants or owners, to the injury of their landlords, or to defraud the insurers. But it is not necessary to prove any distinct malice, or intent to defraud, beyond that which the law necessarily inplies from the act of deliberate arson,
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 [ 222 ] 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 ; 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 the opinion of former writers. But by statute 6 Ann. c.31. any servant negligently setting fire to a house or out-houses, shall forfeit 1001. or be sent to the house of correction for eighteen months; in the same manner as the Roman law directed, “ eos, qui negligenter iğnes apud se habuerint, fastibus vel flagellis caedi” *. (15)
3. The punishment of arson was death by our antient Saxon laws!. And in the reign of Edward the first, this sentence ☆ Fost, 115.
* Ff. 1. 15.4. hi Hawk. P. C. c. 39. $ 16, 17.
'LL. Inae. c.7. (16) i i Hal. P. C. 569.
This is the application of the general principle of the criminal law, that a man must be presumed to intend the necessary consequences of his acts ; and in pursuance thereof, a case was held to be within the statute in which the witnesses for the prosecution stated that the prisoner “ was an harm« less inoffensive man, that there never had been any quarrel or disagree“ ment between him and his masters (the owners of the mill set fire to), or “ any of the clerks, and that they were not aware of any motive which « could have induced him to commit the act." Farrington's case, 2 Russell, C.L. 1675.
(15) This statute is repealed, but a similar provision is to be found in 14 G.3. C.78.
(16) The law of Ina referred to is c. 77. de incendiaris et veneficis; it is not very easy to render its meaning exactly, but it does not seem án au
was executed by a kind of lex talionis ; for the incendiaries were burnt to death m: as they were also by the Gothic constitutions". 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 uow the punishment of all capital felonies is uniform, namely, by hanging. The offence of arson was denied the benefit of clergy by statute 23 Hen. VIII. c. 1., but that statute was repealed by i Edw. VI. c. 12., and arson was afterwards held to be ousted of clergy, with re
spect to the principal offender, only by inference and deduc[ 223 ] tion from the statute 4 & 5 P. & M. c. 4., which expressly
denied it to the accessory before the fact °; though now it is expressly denied to the principal in all cases within the statute 9 Geo. I. c. 22. (17)
thority for the position in the text. After some directions as to the ordeal by water or fire, which was to be the mode of trial, the law goes on thus : si tunc juramentum producere nequeat, et ille impurus sit, in potestate senioris, qui ad eandem urbem pertinet, positum sit, AN VITAM HABEAT, VEL NON HABEAT.
(17) Several statutes, which I shall hereafter have occasion to notice, have extended the crime and punishment of arson to other subject matters, requiring protection, and many of them use the words “ set fire to" either alone, or in the alternative with the word “ burn." The important statutes 9 G. 1. c. 22., and the 43 G.3. c. 58. use the words “ set fire to” alone; but no case has decided that an actual burning is not equally necessary to satisfy these words; see Taylor's case, 2 East, P.C. c. 21. s. 4. Indeed, with regard to the first of these two statutes, it has been laid down more than once by the judges that it did not alter the nature of the crime, or create any new offence, but only excluded the principal from clergy more clearly than he was before. Spalding's case. Breeme's case, 2 East, P.C. c. 21. s. 6. By a farther provision of the 9 G.1. c. 22., the offender may be required by order of the king in council to surrender within forty days after proclamation made in the manner therein stated, in default of which the court may award execution; and the same act provides that for the more impartial trial of offences under it, they may be inquired of, tried, and deter. mined in any county as if the fact had been there committed. Upon which clause it hath been holden, that the private prosecutor has his option to prosecute in a different county from that in which the crime was committed. Mortis's case, 2 East, P.C. c. 20. s. 10.
: 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 shewn 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 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?; quid est 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 cases, the public safety supersedes the private. Hence also in part arises the animadversion of the law upon eaves-droppers, nusancers, 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".
The definition of a burglar, as given us by sir Edward [ 224 ] Coke', is, “ he that by night breaketh and entereth into a “ mansion-house (of another,] 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, in the p See pag. 180.
• 3 Inst. 63. 4 pro domo, 41.
See pag, 180, 181, ri Hal. P.C.547.