any vessel, whether the same be complete or in an unfinished state (c) -the setting fire to, casting away, or destroying any vessel, with intent thereby to prejudice any owner or part owner of such vessel, or of any goods on board the same, or any underwriter of a policy of insurance upon such vessel, or on the freight thereof, or upon any goods on board the same (d)-the attempting, by any overt act, to set fire to, cast away, or destroy any vessel, under such circumstances that if the ship or vessel were thereby set fire to, cast away, or destroyed, the offender would be guilty of felony (e)-the placing or throwing into, upon, against, or near any vessel, gunpowder, or any other explosive substance, with intent to destroy or damage any vessel, machinery, tools, or chattels, whether or not an explosion take place, and whether or not any injury be effected (f)-the damaging, otherwise than by fire, *gunpowder, or other explosive substance, any vessel, whether complete or in an unfinished state, with intent to [*270] destroy the same or render the same useless (g).

Such are the malicious injuries to property analogous to arson which are indictable and punishable under the statute law.

III. Burglary.

III. 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 which 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 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 (h)), 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 ancient Rome, as expressed in the words of Tully (i); “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 [*271]

also in part arises the animadversion of the law upon 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

(c) Sect. 42. Punishment: penal servitude for life or for not less than five years,—or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement, and if a male under the age of sixteen years, with or without whipping.

As to setting fire to ships of war, ante, p. 134.

(d) Sect. 43. Punishment ut supra. (e) Sect. 44. Punishment: penal servitude for not more than fourteen nor less than five years, or imprisonment for not more than two years, with or without hard labour, and

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 (k).

The definition of a burglar, as given by sir Edward Coke (7), 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.

The time must be by night, and not by day: for in the daytime there is no burglary. We have seen (m), in the case of justifiable homicide, how much more heinous all laws made an attack by night 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; though the better opinion was, that if there were daylight or crepusculum enough, begun or left, to discern a man's face withal, it was no burglary (n). But all questions as to what constitutes the night,' for the purpose of burglary, were set at rest by statute, and now the 24 & 25 Vict. c. 96, enacts (section 1) that for the purposes of the act, which inter alia prescribes the punishment for burglary (0), the night shall be deemed to commence at nine o'clock in the evening, and to conclude at six o'clock in the morning of the next succeeding day. As to the place wherein burglary can be committed, it must, at common law, according to sir Edward Coke's definition, be in a mansion-house (p): and therefore to * account for the reason why breaking open a church

[*272 ] is burglary, by the common law, he quaintly observes that it is domus

mansionalis Dei (q). But burglary might also have been committed by breaking the gates or walls of a town in the night (r); though that perhaps Sir Edward Coke would have called the mansion-house of the garrison or corporation. Spelman defines burglary to be, "nocturna diruptio habitaculi, vel ecclesiæ, etiam murorum portarumve burgi, ad feloniam perpetrandam." And therefore we may safely conclude that the words domus mansionalis are only requisite in defining at common law burglary in a private house: which is the most frequent form of this offence. For no distant barn, warehouse, or the like, was clothed with the same privileges, nor looked upon as a man's castle of defence: nor is the breaking open of a house wherein no man resides, and which, therefore, for the time being is not a mansion-house, attended with the same circumstances of midnight terror (s).

A house wherein a man sometimes resides, and which the owner has only left for a short season, animo revertendi, may be the object of burglary, though no one be in it at the time of the fact committed (t). There mere casual use, however, 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 raake a violent entry in the night, in order to steal, a burglary (u).

(k) 1 Hale, P. C. 547; ante, p. 163.

(7) 3 Inst. 63.

(m) Ante, p. 213.

(q) 3 Inst. 64. See 1 Hale, P. C. 556 (d). Sacrilege by breaking and entering a church or other place of divine worship is punisha

(n) 3 Inst. 63; 1 Hale, P. C. 350; 1 Hawk. ble under the 24 & 25 Vict. c. 96, s. 50.

P. C. 101.

(0) Sect. 52; cited post.

(p) "Every house for the dwelling and habitation of man," observes Lord Coke, "is taken to be a mansion-house, wherein burglary may be committed." 3 Inst. 64.

(r) Spelm. Gloss. tit. Burglary; 1 Hawk. P. C. 103.

(8) 1 Hale, P. C. 559.

(t) 1 Hale, P. C. 556; Fost. 77.

(u) 1 Hale, P. C. 557-8. Nor, though the house is ready for the reception of the owner,

A chamber in a college or an inn of court, where each inhabitant [* 273] has a distinct property, is, for all purposes, the mansion-house of the owner (t). So also is a room or lodging, in any private house, the mansion for the time being of the lodger; if the owner does not himself dwell in the house, or if he and the lodger enter by different outward doors. But if the owner himself sleeps 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 (x). 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 (z). But if I hire a shop, parcel of another man's house, and work or trade in it, but never sleep 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 sleep there (a). Neither can burglary be committed in a tent or booth erected in a market or fair; though the owner may lodge therein (b); 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 under the same circumstances (c). If a barn, stable, or warehouse, were parcel of the mansion-house, [* 274] and within the same common fence (d), though not under the same roof or contiguous, a burglary might at common law have been committed therein; for the capital house was held to protect and privilege all its branches and appurtenants, if within the curtilage or homestall (e). But now, by statute, no building, although within the same curtilage with any dwelling-house, and occupied therewith, shall be deemed to be part of such dwelling-house for the purposes of the act, unless there 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 (ƒ).

As to the manner of committing burglary: there must at common law be both a breaking and an entry to complete it. But the breaking and entering need not be both done at once: for if a hole be broken one night, and the breakers enter the next night through it, they are burglars (g). 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 process), but a substantial and forcible irruption. As at least by breaking, or taking out the glass of, or otherwise opening, a window (h): picking a lock, or opening it and he has sent his property into it preparatory to his own removal, will it become, for this purpose, his mansion. R. v. Thompson, 3 Leach, 771. And 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 make the breaking thereof burglary, though he has used it for his meals, and all the purposes of his business. Martin, Russ. & Ry. 138; R. v. Flannagan, ld. 187.

(t) 1 Hale, P. C. 556.

(x) Kel. 83; 1 Hale, P. C. 556. (2) Foster, 38, 39.

R. v.

(a) 1 Hale, P. C. 558.

(b) 1 Hawk. P. C. 104.

(c) But it is otherwise if it be a permanent
building, though used only for the purposes
of the fair. R. v. Smith, i M. & Rob. 256.
(d; R. v. Garland, 1 Leach, 144.

(e) 1 Hale, P. C. 558; 1 Hawk. P. C. 104.
(f) 24 & 25 Vict. c. 96, s. 53.
(g) 1 Hale, P. C. 553.

(h) Pulling down (or raising) 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

*

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 door [* 275] For window open, it is his own folly and negligence, and if a man enters thereby it is no burglary: yet, if he afterwards unlocks an inner or chamber door, it is so (i). But to come down a chimney is held a burglarious entry; for that is as much closed as the nature of things will permit (k). 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 no actual breaking; for the law will not suffer itself to be trifled with by such evasions, especially under the cloak of legal process (1). 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 (m). Nay, if the servant conspires with a robber, and lets him into the house by night, this is burglary in both (n); 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 (0). 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

[*276] 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 (p). The entry may be before the breaking, as well as after: for by statute 24 & 25 Vict. c. 96, s. 51, it is enacted that: "Whosoever shall enter the dwelling-house of another with intent to commit any felony therein, or being in such dwellinghouse shall commit any felony therein, and shall in either case break out of the said dwelling-house in the night, shall be deemed guilty of burglary."

As to the intent; it is clear, that to constitute burglary the breaking and entry must be with a felonious intent, otherwise it is only a trespass. And this is so, 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 common law,

not put to. R. v. Haines, Russ. & Ry. 451; R. v. Hyams, 7 C. & P. 441. Where, however, the window is already partly open, the raising it higher, so as to admit a person through it is not a breaking. Reg. v. Smith, 1 Mood. 178. 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. R. v. Hall, Russ. & Ry. 355.

(i) 1 Hale, P. C. 553. The lifting up of the flap of a cellar usually kept down by its own weight, and thereby getting into the house, has been held a sufficient breaking. R. v. Russell, 1 Mood. 337.

(k) 1 Hawk. P. C. 102; 1 Hale, P. C. 552. R. v. Brice, Russ. & Ry. 450.

() 1 Hawk. P. C. 102. (m) 1 Hale, P. C. 553, 554. (n) Cornwall's Case, 2 Stra. 880; 1 Hale, P. C. 553; 1 Hawk. P. C. 103.

(0) But if a servant, pretending to agree with a thief, open the door and let him in, for the purpose of detecting and apprehending him, this is no burglary, for the door is lawfully open. R. v. Johnson, C. & Mar. 218.

(p) 1 Hale, P. C. 555; 1 Hawk. P. C. 103; Fost. 108. So if the prisoner breaks open a shop window, and with his hand takes out goods, the offence is complete. Fost. 107; R. v. Davis, Russ. & Ry. 499

or created so by statute; since the statute which makes an offence felony, gives it incidentally all the properties of a felony at common law (q).

Where no actual felony has been committed in the building burglariously entered, the practice is to charge in the indictment that the intent of the accused was to commit murder, larceny, or any specific felony, and from surrounding circumstances this intent may be inferred. Where, however, a felony has actually been committed, the jury will infer the intent to commit it from the fact (r).

Thus much for the nature of burglary; which is now * punishable [* 277] with penal servitude for life, or for any term not less than five years, or with imprisonment for not more than two years with or without hard labour, and with or without solitary confinement (s). (713)

(g) 1 Hawk. P. C. 105.

(8) 24 & 25 Vict. c. 96, s. 52. As to fines (r) Reg. v. Powell, 2 Den. 403; 2 East, P. and sureties for keeping the peace under the C. 514; 1 Hale, P. C. 561. above act, see s. 117.

(713) The common-law offense of burglary is the breaking and entering of a dwellinghouse in the night-time, with intent to commit a felony therein. Rex v. Hansom, 1 Root (Conn.), 59; Com. v. Newell, 7 Mass. 247; State v. Wilson, Coxe (N. J.), 441.

It is no breaking if one enters through an open door or window. State v. Boon, 13 Ired. 244; State v. Wilson, Coxe (N. J.), 439; Com. v. Strupney, 105 Mass. 588. But if a door be closed, it is not necessary to constitute burglary that it should be latched (People v. Bush, 3 Park. 552; State v. Reid, 20 Iowa, 413; Finch v. Com., 14 Gratt. [Va.] 643); and if one thrusts himself down the chimney (State v. Boon, 13 Ired. [N. C.] 244; Donohoe v. State, 36 Ala. 281), or through fraud practiced on the occupant, procures him to open the door, it is a sufficient breaking. State v. Johnson, Phillips (N. C.), 186; Fisher v. State, 43 Ala. 17; Ducher v. State, 18 Ohio, 308; State v. Mordecai, 68 N. C. 207. The removal of an iron grating may be burglary as much as opening a window. People v. Nolan, 22 Mich. 229. But it is held that removing a loose plank in a partition wall is not a breaking. Com. v. Trimmer, 1 Mass. 476.

To constitute burglary it is not necessary for the whole physical frame to pass within the dwelling-house. If the hand only (Fisher v. State, 43 Ala. 17), or the instrument with which it is intended to commit the felony goes within, it is sufficient. State v. McCall, 4 Ala. 643. So, merely entering the chimney is sufficient, though the burglar should not pass out of the chimney into any room. Donohoe v. The State, 36 Ala. 281. And if a guest at an inn leaves his own room and breaks into the room of another guest, to commit a felony there, it is burglary. State v. Clark, 42 Vt. 629. See State v. Moore, 12 N. H. 42; People v. Bush, 3 Park. 552; Mason v. People, 26 N. Y. (12 Smith) 200.

To constitute a burglary, the breaking and entering must be into the dwelling-house of another; that is, the place must be one which is used for habitation. See State v. Warren, 33 Me. 30; Com. v. Barney, 10 Cush. (Mass.) 478; People v. Stickman, 34 Cal. 242; Hollister v. Com., 60 Penn. St. 103. It is not essential, however, that any one should be actually within the house at the time the offense is committed. State v. Meerehouse, 34 Mo. 344; Com. v. Brown, 3 Rawle (Penn.), 207; Ex parte Vincent, 26 Ala. 145. And a burglary may be committed in a house or shop within the curtilage of a residence. See State v. Mordecai, 68 N. C. 207; Fisher v. State, 43 Ala. 17; People v. Snyder, 2 Park. 23; State v. Langford 1 Dev. (N. C.) 253. So, of a barn not separated from the residence by a public way Pitcher v. People, 16 Mich. 142. And see State v. White, 4 Jones (N. C.), 349; State v Twitty, 1 Hayw. (N. C.) 102; Armour v. State, 3 Humph. (Tenn.) 379; State v. Wilson, 1 Hay w. (N. C.) 242. But it is not burglary to break the door of a store within three feet of the dwelling-house, and inclosed in the same yard, if the store is not necessary to the house as a dwelling (State v. Langford, 1 Dev. [N. C.] 253); and see State v. Ginns, 1 Nott & M. (S. C.) 583; People v. Parker, 4 Johns. 424. Separate and permanent apartments in a house, occupied by a lodger or family, constitute the dwelling-house of such lodger or family. Com. v. Bowden, 14 Gray (Mass.), 103; Dale v. State, 27 Ala. 31.

The breaking and entering must be with an intent to commit a felony (Anonymous, Dalison, 22; State v. Wilson, Coxe [N. J.], 439; State v. Eaton, 3 Harr. [Del.] 554); and if the