own, it does not amount to felony, though the fire was kindled with intent to burn another's. 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 misdemeanor, and punishable by fine and imprisonment, pillory, and perpetual sureties for the good behaviour. And if a landlord or reversioner sets fire to his own house, of which another is in possession under 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 called 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 decription 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 malicions burning; otherwise it is only a trespass: and therefore no negligence or mischance amounts to it. But by statute 6 Ann. c. 31. any servant negligently setting fire to a house or outhouses, shall forfeit L. 100. or be sent to the house of correction for eighteen months.

3. The punishment of arson, and of all capital felonies, is uniform, namely, by hanging.

II. Burglary, or nocturnal housebreaking. The

definition of a burglar, as given by sir Edward Coke, 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 day-time there is no burglary. If there be daylight or crepusculum enough, begun or left to discern a man's face withal, it is no burglary. 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.

2. As to the place. It must be, according to sir Edward Coke's definition, in a mansion-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 sometime 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. And if the barn, stable, or warehouse, be parcel of the mansion-house, and

within the same common fence, 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 appurtenants if within the curtilage or home-stall. 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. 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. Thus too the house of a corporation, inhabited in separate apartments by the officers of the body corpo. rate, is the mansion-house of the corporation, and not of the respective officers. But if 1 hire a shop, parcel of another man's house, and work or trade in it, but never lie there, it is no dwellinghouse, 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 lie there. Neither can burglary be committed in a tent or booth erected in a market or fair, though the owner may lodge therein: for the law regards thus highly nothing but permanent edifices.

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. 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. But to come down a chimney is held a burglarious entry; for that is as much closed as the nature of things will permit. So also to knock at a 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. And so, if a servant open and enter his master's chamber door with a felonious design; or if any other person lodging in the same house, or in a public inn, open and enter another's door, with such evil intent; it is burglary. Nay, if the servant conspire with a robber, and let him into the house by night, this is burglary in both 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 book in at a window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries. The entry may be before the breaking, as well as after: for, 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. 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.

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.

CHAPTER XVII.

OF OFFENCES AGAINST PRIVATE PROPERTY.

THE next, and last, species of offences against private subjects, are such as more immediately affect their property.