CHAPTER V. OF OFFENCES AGAINST RIGHTS OF PROPERTY OR THE next class of crimes that we propose to consider are such as affect property; in considering which we shall notice, first, offences which more immediately affect houses or other property connected with land; and, next, offences against property in general, including offences against rights arising out of contract. And, first, with respect to offences against houses, &c. I. Arson, ab ardendo, is the malicious and wilful burning of the house or outhouse of another man. [This is an offence of very great malignity, and much more pernicious to the public than simple theft; because of the terror and confusion which necessarily attend it; and, also, 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 punished with death, such [as maliciously set fire to houses in towns and contiguous to others; but was more merciful to such as only fired a cottage or house standing by itself (a). Our English common law also distinguishes with much accuracy upon this crime; and, therefore, we will inquire, first, what 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. Not only the bare dwelling-house, but all outhouses that are parcel thereof,-though not of necessity contiguous thereto, or under the same roof,-as barns and stables, may be the subject of arson (b). The offence 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 be done but to one's own, it did not, at common law, amount to felony, though the fire was kindled with intent to burn another's (c). However, such wilful firing one's house, in a town, was always a high misdemeanor, and punishable by fine, imprisonment, and perpetual sureties for the good behaviour (d); and if a landlord or reversioner set fire to his own house, of which another was in possession under a lease from himself, or from those whose estate he hath, it was accounted arson; for, during the lease, the house is the property of the tenant (e). As to what shall be said to be 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 description of incendit et combussit; which were words necessary, in the days of law-Latin, to all indictments of this sort (f); but the burning and con (a) Ff. 48, 19, 28, s. 12. (b) 1 Hale, P. C. 567. (e) Cro. Car. 377; 1 Jon. 351. (d) 1 Hale, P. C. 568; Hawk. P. C. b. 1, c. 39, s. 3; 2 East, P. C. c. 21, s. 7. (e) Fost. 115. (f) R. v. Russell, 1 Car. & M. 541. [suming of any part is sufficient, though the fire be afterwards extinguished (g). Also it must be a malicious burning, otherwise it is only a trespass; and, therefore, no negligence or mischance amounts to it (h). The punishment of arson was death by our antient Saxon laws (i); and in the reign of Edward the first, this sentence was executed by a kind of lex talionis; for the incendiaries were burnt to death (k), as they were also according to the Gothic constitutions (7). 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 (m). 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 fact (n).] 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 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 (o), whoever shall un lawfully and maliciously set fire to a 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 (p), 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 of sixteen, he may also be sentenced to be whipped (2). And the same punishments are attached to the felonious offence of so setting fire to a church, chapel, meeting-house, or other place of divine worship (→); and (provided the intent be to injure or defraud any person) to the crime of feloniously firing a house, stable, coach-house, out-house, warehouse, office, shop, mill, malthouse, hopoast, barn, storehouse, granary, pens, shed, or fold; or any building or erection used in a farm, or in carrying on any trade or manufacture, whether in possession of the offender or other person (s) ;-and also to the felonious offence of firing a station or other building belonging to a railway, port, dock, harbour, canal, or other navigation (t); or any kind of building (other than those already specified) belonging to the Queen, to a county, riding, division, city, borough, poor-law union, parish or place, or to any university, college or hall, or to any inn of court, or devoted or dedicated to public use or ornament, or erected or maintained by public subscription or contribution (u). As to other buildings not specified as above, the offence of setting fire to them unlawfully and maliciously, is somewhat less penal; being a felony punishable with penal (p) See 27 & 28 Vict. c. 47. (2) In this and all other felonies punishable under 24 & 25 Vict. c. 97, the offender may, in addition to any other punishment, be required to find sureties for keeping the peace; or, in default, is liable to additional imprisonment to the extent of one year. (Sect. 73.) (*) Sect. 1. (s) Sect. 3. As to what is an "outhouse," see R. v. James, 1 Car. & Kir. 303; R. v. England, ib. 533. (t) Sect. 4. The previous enactment as to this, contained in 14 & 15 Vict. c. 19, s. 8, was repealed by 24 & 25 Vict. c. 95. (u) Sect. 5. 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, to attempt by any overt act 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 (). With regard to arson other than that of buildings,-it is enacted by the same statute 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 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, the punishment (if by way of penal servitude) is limited to the term of fourteen years instead of life (b); and to the term of seven years, if the offence be attempted by overt act but not completed,-under such circumstances that if the 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 (y) 24 & 25 Vict. c. 97, s. 6. (See The Queen v. Manning, Law Rep., 1 C. C. R. 338.) (z) Sects. 7, 8. (See The Queen v. Child, Law Rep., 1 C. C. R. 307.) (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.) (c) Sect. 18. (e) Sects. 42, 43. As to what constitutes a ship, see R. v. Bowyer, 4 C. & P. 559. |