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into another, was capital by the Jewish law. “He that stealeth the English law, a man, or selleth him, or if he be found in his hand, he shall offence. surely be put to death (b).” So likewise in the civil law, the offence of spiriting away and stealing men and children ; which was called plagium, and the offender plagiarii, was punished with death (c). This is unquestionably a very heinous crime, as it robs the king of his subjects, banishes a man from his country, and may, in its consequences, be productive of the most cruel and disagreeable hardships ; and therefore the common law of England has punished it with fine, imprisonment, and pillory (d) (26). And also the statute 11 and 12 W. III. c. 7, though principally intended against pirates, has a clause that extends to prevent the leaving of such persons abroad as are thus kidnapped or spirited away, by enacting, that if any captain of a merchant vessel shall, during his being abroad, force any person on shore, or wilfully leave him behind, or refuse to bring home all such men as he carried out, if able and desirous to return, he shall suffer three months' imprisonment (27). And thus much for offences that more immediately affect the persons of individuals. (6) Exod. xxi. 16.

(d) Raym. 474; 2 Show. 221 ; Skin. (c) F7, 48, 15, 1.

47; Comb. 10.

(26) Stealing children was, by 54 Geo. III. c. 101, punishable as in cases of grand larceny: but that statute is pow repealed by 9 Geo. IV. c. 31 ; by $ 31 of which,“ if any person shall maliciously, either by force or fraud, lead or take away, or decoy or entice away, or detain, any child under the age of ten years, with intent to deprive the parent or parents, or any other person having the lawful care or charge of such child, of the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong; or if any person shall, with any such in tent as aforesaid, receive or harbour any such child, knowing the game to have been, by force or fraud, led, taken, decoyed, enticed away, or detained as herein before mentioned: every such offender, and every person counselling, aiding or abetting, such offender, shall be guilty of felony ; and being con

VOL. IV.

victed thereof, shall be liable to be
transported for the term of seven years,
or to be imprisoned, with or without
hard labour, for any term not exceed-
ing two 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.
Provided always that no person who
shall have claimed to be the father of
an illegitimate child, or to have any
right to the possession of such child,
shall be liable to be prosecuted by
virtue hereof, on account of his getting
possession of such child, or taking such
child out of the possession of the mo-
ther, or any other person having the
lawful charge thereof."

(27) By 9 Geo. IV. c. 31, $ 30, if
any master of a merchant vessel shall,
during his being abroad, force any man
on shore, or wilfully leave him behind
in any of his Majesty's colonies or else-
where, or shall refuse to bring home

219

OFFENCES AGAINST THE PERSONS OF INDIVIDUALS. with him again all such of the men dictment or information to have been whom he carried out with him, as are committed at Westminster, in the in a condition to return when he shall county of Middlesex : and the said be ready to proceed on his homeward court is hereby authorized to issue one bound voyage, every such master shall or more commissions, if necessary, for be guilty of a misdemeanor, and being the examination of witnesses abroad; lawfully convicted thereof, shall be im- and the depositions taken under the prisoned for such term as the court shall same, shall be received in evidence on award ; and all such offences may be the trial of every such indictment or prosecuted by indictment or by informa information. So much of the 11 & 12 tion, at the suit of his Majesty's at- W. III. C. 7, and of the 58 G. II. torney general, in the court of King's c. 38, as related to this subject, is rcBench, and may be alleged in the in- pealed by the 9 G. IV. c. 31.

220

CHAPTER XVI.

OF OFFENCES AGAINST THE HABITATIONS

OF INDIVIDUALS.

the habitations

are,

murder ;

The only two offences, that more immediately affect the habi- Offences against tations of individuals or private subjects, are those of arson of individuals and burglary.

I. Arson, ab ardendo, is the malicious and wilful burning 1: Arson, a ma. of the house or outhouse of another man. This is an offence often including 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.

Our English law also distinguishes with much accuracy [*221] upon this crime. And therefore we will inquire, first, what is is such a house as may be the subject of this offence: next, tio 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 outhouses may be a felony, that are parcel thereof, though not contiguous thereto, nor nor; under the same roof, as barns and stables, may be the subject

(a) Ff. 48, 19, 28, § 12.

susceptible of nice distinc

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of arson (6). 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 anciently 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 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 (s). 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 (9) (2)

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(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. See this section fully set forth, post, 245, in notis.

(2) 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, coachhouse, outhouse, 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, shull then be in the possession of the offender, or in

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2. As to what shall be said to be a burning, so as to if malicious, a amount to arson, a bare intent, or attempt to do it, by actually ligent, a misdesetting fire to a house, unless it absolutely burns, does not fall within the description of incendit et combussit (3); 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. 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).

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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. The provision with respect to churches and chapels appears to be new. The present Act differs also from the repealed Act of 52 Geo. III. c. 130, in using the words “set fire to " alone, instead of the words “burn or set fire to;" but, from analogy to Taylor's case, 2 East, P. C. c. 21, § 4, it would seem to be still necessary to prove an actual burning, to bring a party within the statute. A school-room separated from the dwelling-house by a passage about a yard wide, the roof of which was partly overhung by that of the dwel. ling-house, the two buildings, with others, and the court which enclosed them, being rented by the same person, was held to be an “outhouse," within the 9 Geo. I.c. 22; Winter's case, R. & R. C. C. 295. A prison, or common gaol, has been held to be a “house," within the same statute; Rerv. Dono. van, 2 W. Bla. 682. If an indictment for arson describes the premises as in the possession of A., proof that they were in the possession of the tenants of A. will support it ; Rer v. Ball, R.

& M. C. C. 30. Where a pauper
set fire to a house in which he was put
to live by the overseers, and the trus-
tees, in whom the legal ownership was
vested, were not known, it was held
that it might be described as the house
of the overseers, or of persons unknown;
Rex v. Rickman, 2 East, P. C. 1034.
An indictment for arson, whether at
common law or under the statute, must
describe the parish in which the offence
is stated to have been committed, ac-
cording to the fact.

(3) But the fact of burning is, in
the absence of other circumstances,
strong presumptive evidence of a felo-
nious intent, for a man must necessarily
be deemed to have intended the mis-
chief which is the consequence of this
act; Rer v. Farrington, R. & R. C.C.
207. So, if a man, maliciously intend-
ing to burn the house of A., acciden-
tally burns the house of B., he may be
indicted for maliciously burning the
house of B. ; 1 Hawk. P. C. c. 18,
18. An indictment for arson with intent
to defraud an insurance company cannot
be sustained, if the policy produced is
inadmissible for want of a stamp; Rer
v. Gilson, R. & R. C. C. 138; See
Stark, C. P. 439.

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