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[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 (I); but the burning and consuming of any part is sufficient, though the fire be afterwards extinguished (i). Also it must be a malicious burning, otherwise it is only a trespass; and, therefore, no negligence or mischance amounts to it(k).
The punishment of arson was death by our antient Saxon laws(1); and in the reign of Edward the first this sentence was executed by a ind of lex talionis ; for the incendiaries were burnt to death (m), as they were also according to 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 an ordinary felony, by the general Acts of Edward the sixth and Queen Mary(o). Moreover the offence of arson was denied the benefit of clergy by statute 23 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 But that statute was repealed by 1 Edw.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 Ph. & M. c. 4, which expressly denied the benefit to an accessory before the
The offence which we have here described is that of arson as it stood at common law ; but the antient doctrines as to this offence (which it will be observed had reference almost exclusively to the burning of houses) have now lost
(1) R. v. Russell, 1 Car. & M. 541.
(i) Hawk. P. C. b. 1, c. 39, ss. 16, 17.
(k) i Hale, P. C. 569.
( 1 Edw. 6, c. 12, and 1 Mary, c. 1, vide post, c. VI.
(p) 11 Rep. 35; 2 Hale, P. C. 316, 317; Fost. 336 ; and see 9 Geo. 1, c. 22, now repcaled by 7 & 8 Geo. 4, c. 27.
much of their importance, specific enactments having been passed by the legislature in reference to almost every case of criminal firing. The existing provisions on this head are as follows.
By 24 & 25 Vict. c. 97, s. 2(7), whosoever shall unlawfully and maliciously set fire to any dwelling-house, any person being therein, shall be guilty of felony, and is made liable to penal servitude for life, or not less than five years (r), or to imprisonment for not more than two years, with or without hard labour, or solitary confinement; and if the offender be a male under the age sixteen, he may also be sentenced to be whipped (s). And the same punishments are attached to the felonious offence of so setting fire to any church, chapel, meetinghouse, or other place of divine worship (t);-and, provided the intent be to injure or defraud any person, to the crime of feloniously firing a house, stable, coachhouse, outhouse, warehouse, office, shop, mill, malthouse, hopoast, barn, storehouse, granary, pens, shed, or fold; or any farm building, or building or erection used in farming land, or in carrying on any trade or manufacture, whether in possession of the offender or any other person (u);and to the felonious offence of firing a station or other building belonging to a railway, port, dock, harbour, canal, or other navigation (v); or any building (other than those already specified) belonging to the Queen, a county,
(9) By 24 & 25 Vict. c. 95, the provisions with regard to this species of arson, contained in 7 Will. 4 & 1 Vict. c. 89, s. 2, are repealed. By that Act the punishment was death.
(r) See 27 & 28 Vict. c. 47.
(8) In this and all other felonies punishable under 24 & 25 Vict.c. 97, the offender may in addition to any other pu ment be required to find sureties for keeping the peace;
or, in default, is liable to additional imprisonment to the extent of one year. (24 & 25 Vict. c. 97, s. 73 )
(t) Sect. 1.
(u) Sect. 3. As to what is an “outhouse," see R. v. James, 1 Car. & Kir. 303; R. v. England, ibid. 533.
(1) Sect. 4. The previous enactment as to this, contained in 14 & 15 Vict. c. 19, s. 8, is repcaled by 24 & Vict. c. 95.
riding, division, city, borough, poor-law union, parish or place, or to any university, or college or hall thereof, or to any inn of court, or devoted or dedicated to public use or ornament, or erected or maintained by public subscription or contribution (x).
As to other buildings not specified as above, the offence of so setting fire to them, is somewhat less penal; being a felony punishable with penal servitude to the extent of fourteen years instead of life, or else by such imprisonment as already mentioned (y).
It is also enacted, that it shall be felony, and punishable as last mentioned, by any overt act to attempt to set fire to a building, or any matter or thing in, against, or under a building, under such circumstances that if the firing were accomplished the offence would amount to felony (z).
With regard to arson other than that of buildings,-it is enacted that unlawfully and maliciously to set fire to any stack of corn, grain, pulse, tares, hay, straw, haulm, stubble, or of other cultivated vegetable produce, or stack of furze, gorse, heath, fern, turf, peat, coals, charcoal, wood or bark, or steer of wood or bark, shall be equally penal as firing any of the buildings above specified (a): but the punishment, if by way of penal servitude, is limited to the term of fourteen years, in the case of so setting fire to any crop of hay, grass, corn, grain or pulse, or cultivated vegetable produce, whether standing or cut down, or to any part of any wood, coppice, or plantation of trees, or to any heath, gorse, furze, or fern, wheresoever the same may be growing (6); and to the term of seven years, if the offence be attempted by overt act and not completed, -- under such circumstances that if the
(2) 24 & 25 Vict, c. 95, s. 5.
(a) Sect. 17. To fire a barn in a field, if filled with hay or corn, or a
stack of corn, was also accounted as arson at common law. (3 Inst. 67; Hawk. P. C. b. 1, c. 39, s. 2.)
(6) Sect. 16.
firing were effected, the offender would be guilty of felony (c).
Finally, to fire any coal mine (d),-or ship or vessel(e), -is made equally penal with setting fire to one of the buildings specified in the Act. And an attempt to do so by an overt act, is also severely punished, the term of penal servitude being in that case fourteen years (f).
II. Burglary, or nocturnal housebreaking, burgi latrocinium, which, by our antient law, was called hamesecken, has always been looked upon as a very heinous offence (9). For it always tends to occasion a frightful alarm, and often leads by natural consequence to the crime of murder itself. [Its malignity also is strongly illustrated by considering how particular and tender a regard is paid by the law of England to the immunity of a man's house ; which it styles his castle, and will never suffer to be violated with impunity: agreeing herein with the sentiments of antient Rome, as expressed in the words of Tully, “ quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium ?” (h). 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 eavesdroppers, 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 (i).
The definition of a burglar, as given us by Sir Edward
(c) 24 & 25 Vict. c. 97, s. 18.
(1) Pro Domo, 41.
(i) i Hale, P. C. 547. As to riots, ronts, and unlawful assemblies, vide post, c. vi.
[Coke, is “ he that by night breaketh and entereth into a “ mansion-house, with intent to commit a felony" (j). In which 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 in the case of justifiable homicide, how much more heinous is an attack by night, rather than by day; for one who is attacked by night may kill his assailant with impunity (k). 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 afterwards was, that if there were daylight or crepusculum enough, begun or left, to discern a man's face withal, it was no burglary (1). But this did not extend to moonlight, for then many midnight burglaries would have gone 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 creation is at rest.] But the doctrines of the common law on this subject are no longer of practical importance, it being provided by 24 & 25 Vict. c. 96, (by which this offence is now regulated,) that for the purposes of that Act, and in reference to the crime now under consideration, the night shall be deemed to commence at nine in the evening, and to conclude at six in the morning of the succeeding day (m).
[As to the place. It must be, according to Sir E. 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 (n). But it does not seem
(j) 3 Inst. 63.
(1) 3 Inst. 63; 1 Hale, P. C. 550; Hawk. P. C. b. 1, c. 38, s. 2.
(T) 24 & 25 Vict. c. 96, s. 1. The
previous enactment on this subject, contained in 7 Will. 4 & 1 Vict. c. 86, s. 4, was repealed by 24 & 25 Vict. c. 95.
(n) 3 Inst, 64