by an overt act, is also severely punishable, the term of penal servitude being in that case fourteen years (ƒ).

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 (g). 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 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 consideredthe 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

(f) 24 & 25 Vict. c. 97, s. 27. (g) 4 Bl. Com. 223.

(h) Pro Domo, 41.

(i) 1 Hale, P. C. 547. As to riots, routs, and unlawful assemblies, vide post, c. VI.

(j) 3 Inst. 63.

[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 (). 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 by night is burglary, as it undoubtedly is, he quaintly observes, that it is domus mansionalis Dei (n). But it does not seem absolutely necessary that it should, in all cases, be a mansionhouse; for burglary may also be committed by breaking the gates or walls of a town in the night; though that perhaps Sir Edward Coke would have called, the mansion-house of the garrison or corporation. Spelman defines burglary to be "nocturna diruptio alicujus habitaculi, vel ecclesiæ, etiam murorum portarumve civitatis aut burgi, ad feloniam aliquam

(k) Vide sup. p. 50.

(7) 3 Inst. 63; 1 Hale, P. C. 550; Hawk. P. C. b. 1, c. 38, s. 2. (m) 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.

[perpetrandam" (o). And therefore we may safely conclude that the requisite of its being domus mansionalis, is only in the burglary of a private house, which is the most frequent; and in which it is indispensably necessary, to form its guilt, that it must be in a mansion or dwelling-house; for no distant barn, warehouse, or the like, are under the same privileges, nor looked upon as a man's castle or defence: nor is a breaking open of houses wherein no man resides, and which therefore for the time being are not mansionhouses, attended with the same circumstances of midnight terror. A house, however, wherein a man sometimes 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 (p).] And it was formerly the rule (2), that if the barn, stable, or warehouse, were parcel of the mansion-house, and within the same common fence (though not under the same roof, or contiguous,) a burglary might be committed therein; for the capital house protected and privileged all its branches and appurtenances, if within the curtilage or homestall. But it is now provided, that no building, although within the same curtilage with the dwelling-house, and occupied therewith, shall be deemed to be a part of such dwelling-house for the purpose of burglary, unless there shall be a communication between such building and dwelling-house; either immediate, or by means of a covered and inclosed passage leading from one to the other (»). [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 (s). 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 (0) Spelm. Gloss. tit. "Burglary;" Hawk. P. C. b. 1, c. 38, 8. 10.

(p) 1 Hale, P. C. 556; Fost. 77. (2) R. v. Garland, 1 Leach, C. L. 171.

(r) 24 & 25 Vict. c. 96, s. 53; re-enacting 7 & 8 Geo. 4, c. 29, s. 13, which was repealed by 24 & 25 Vict. c. 95.

(s) 1 Hale, P. C. 556; Hawk. P. C. b. 1, c. 38, s. 13.

[himself dwell in the house, or if he and his lodger enter by different outward doors (t); 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 (u). 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 (). But if I hire a shop, parcel of another man's house, and work or trade in it, but never lie 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 it 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 (y). 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-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.

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 (a); for if a hole be broken one night, and the same breakers enter the next night through the same, they are burglars (6). There must in general be an actual breaking,-not a mere legal clausum fregit, by leaping over invisible, ideal boundaries, such as may constitute a civil trespass, but a substantial and

(t) See R. v. Rogers, 1 Leach, C. C. 89; R. v. Trapshaw, ib. 427. (u) Kel. 84; 1 Hale, P. C. 556. (x) Fost. 38, 39; 2 East, P. C. c. 15, s. 14.

VOL. IV.

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

(2) Hawk. P. C. b. 1, c. 38, s. 17. (a) R. v. Bird, 9 Car. & P. 44; R. v. Smith, R. & R. C. C. 417. (b) 1 Hale, P. C. 551.

I

[forcible irruption,-as at least by breaking, or taking out the glass of, or otherwise opening, a window; picking a lock, or opening it with a key; nay, by lifting up the latch of a door, or unloosing any other fastening which the owner hath provided. But if a person leaves his doors or windows open, it is his own folly and negligence; and if a man enters therein, it is no burglary; yet if he afterwards unlocks an inner or chamber door, it is so (c). But to come down a chimney is held a burglarious entry, for that is so much closed as the nature of things will admit. 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 (d). 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. Nay, if the servant conspires with a robber, and lets him into the house by night, this is burglary in both (e); 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 hook in at the window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries (f).] The entry may be before

(c) 1 Hale, P. C. 553.

(d) Hawk. P. C. b. 1, c. 38,

8. 5.

(e) Cornwall's case, Stra. 881;

Hale, ubi sup.

(f) 1 Hale, P. C. 555; Hawk. ubi sup. s. 7; Fost. 108. As to what entries are burglarious, see