of 23 H. 8. cap. 1. or 5 & 6 E. 6. cap. 9. and not to burglary at large.(x)

And thus far concerning larciny, robbery and burglary, which are felonies by the common law.

[565]

(x) Since our author wrote, there have been other statutes made to take away clergy in cases of larciny committed in dwelling-houses, &c.

By 3 & 4 W. & M. cap. 9. "Clergy is ousted from those who shall feloniously take away any goods in any dwelling-house, any person being therein and put in fear, or shall rob any dwelling-house in the day-time, any person being therein; or shall comfort, aid, counsel or command any person to commit any of the said offenses, or to break any dwelling-house, shop or warehouse thereto belonging, and therewith used in the daytime, and feloniously to take away any money or goods to the value of five shillings, altho no person be within such dwelling-house, &c. or shall counsel, hire or command any person to commit any burglary, if they be convicted, stand mute, or challenge peremptorily above twenty."

The design of this clause was to deprive the accessaries before of the benefit of the clergy; but this statute not mentioning booths nor out-houses, leaves the accessaries in such cases to their clergy.

The same statute enacts, "That persons indicted for a crime, of which being convict they should not have their clergy by any former statute, shall not have it if they stand mute, or will not answer directly, or challenge peremptorily above twenty, or be outlawed.

"Persons indicted of felony for stealing of goods, &c. if convicted, stand mute, will not directly answer, or challenge peremptorily above twenty, shall lose their clergy, if it appears upon evidence or examination, that the goods were taken in another county in such a manner, whereof, if convicted by a jury of that county they should not have their clergy."

This part of the statute helps the several former acts, which were defective either as to the point of standing mute, or challenging peremptorily, or being outlawed.

By 10 & 11 W. 3. cap. 23. "All persons, who by night or by day shall in any shop, ware house, coach-house or stable privately and feloniously steal any goods, wares or merchandizes of the value of five shillings, or more, tho such shop, &c. be not broke open, and tho the owner, or any other person be not therein, or that shall assist, hire or command any person to commit such offense, being thereof convict or attainted by verdict or confession, or being indicted thereof shall stand mute, or challenge above twenty, shall be excluded from the benefit of clergy."

The uses of this statute are these.

1. By the former statutes (except the case of a booth in a fair or market, by 5 & 6 E. 6.) it was necessary, in order to take away clergy, that the robbery should be in a dwelling-house, whereas this statute extends to shops, ware-houses, &c. tho they should not be adjoining to, or be any part of, a mansion-house.

2. The former statutes required there should be an actual breaking or putting in fear, otherwise it would not be a robbery, which is the stealing intended by 39 Eliz. cap. 15. as appears from the preamble of that statute; but by this statute, if the goods stolen be of the value of five shillings, the offender is ousted of clergy as to a shop, ware-house, coach-house, or stable, tho there be no breaking or putting in fear.

3. By 23 H. 8. and 1 E. 6. clergy was not taken away, unless there were some person in the house put in fear, nor by 5 & 6 E. 6. unless some of the family were in the house or booth; nor by 39 Eliz. unless it were in the day-time, and no person in the house; so that if the offence were committed when any person was in the house, if not put in fear, nor one of the family, or when no body was in the house, if it were in the night-time, in neither of those cases was clergy taken away by those statutes; but this statute takes it away in both those cases as to shops, &c.

But still this statute omitted to mention dwelling-houses or out-houses, wherefore, to supply this omission, another statute was made, viz.

12 Ann. cap. 7. by which it is enacted, "That if any person shall feloniously steal any money, goods, or chattles, &c. of the value of forty shillings in any dwelling-house or out-house thereto belonging, altho it be not broken, nor any person therein, or shall assist any person to commit such offense, and shall be convicted by verdict or confession, or stand mute, or will not answer directly, or shall challenge peremptorily above twenty, he shall be debarred from the benefit of clergy." See ante, note at p. 519.

But both these statutes seem defective as to persons outlawed.

There are two exceptions, that are added hereunto.

1. The first is really true, namely when it is tempus belli within the kingdom, and one enemy either steals, robs, or plunders the house or goods of another, and therefore the book of 22 Assiz. 95. adds to the definition of burglary in time of peace, for in time of war, tho these kinds of offenses committed by those of the same party, or those that are not in hostility one to another are felonies, yet in time of war, when done by an enemy, they put on another name, as acts of hostility, misprisions, and the like.

Jusque datum sceleri.

2. The second is only supposititious, namely when it is done in case of necessity,(y) as a poor person that in case of necessity for hunger shall break and enter a house for victuals under the value of twelve-pence, which is added as an exception to burglary, by Crompt. fol. 33. a. and Dalt. cap. 99. p. 255, 256 (z) for tho I do agree a judge ought to be tender in such cases, and use much discretion and moderation, yet this must not pass for law, for then we shall in a little time let loose all the rules of law and government, and burglaries, robberies, yea murders themselves shall be excusable under pretense of necessity, and we shall fall within the wild doctrine of the Jesuitical casuists, who of late in France and elsewhere, upon those general misapplied maxims of Quicquid necessitas cogit, defendit, and in

casu extrema necessitatis omnia sunt communia, have [566] advised servants and apprentices, that it is lawful in point

of conscience to steal from their masters, or rob them in case they make them not sufficient allowances of meat, drink, or clothes: where laws are settled, there are other remedies appointed for the relief of servants against oppressing masters, and of the poor, by complaint to the magistrates without violating the established laws of kingdoms or states.(*)

(y) See Grot. de jur. belli ac pacis, Lib. II. cap. 2. §§ 6 & 7. (z) New Edit. p. 489.

(*) What our author here observes is undoubtedly true, that the plea of necessity ought not in such cases to be allowd, and the reason is, because the law supposes, that no man can in a well governd commonwealth be driven to such a necessity; this supposition is the more reasonable in England, where there are so many laws, and such large sums yearly collected for the relief of the poor, as are more than sufficient for that purpose, if rightly applied; yet such is the neglect in the execution of those laws, that it were to be wished some expedient were found out to render that relief more speedy and effectual, lest, while the necessity be real, the relief be only supposititious, which our author himself thought was oft-times the case, notwithstanding the provisions of the law; (see his preface to his discourse touching the provision for the poor,) which makes it reasonable it should be allowed as an argument for mercy, tho not as a plea in justification.

CHAPTER XLIX.

OF ARSON, OR WILFUL BURNING OF HOUSES.

THE felony of arson or wilful burning of houses is described by my lord Coke, cap. 15. p. 66. to be the malicious and voluntary burning the house of another by night or by day.

This was felony at common law, (a) and one of the highest nature, and therefore by the statute of Westm. 1. cap. 15. such offenders were not replevisable; (b) and by Briton(c) the offenders herein were burnt to death, but as to that the law is changed, they are to be hanged. H. 7 E. 2. Coram Rege Rot. 88. Norf.(d)

By the statute of 8 H. 6. cap. 6. dispersing of bills of menace to burn houses, if money be not laid down in a cer- [ 567] tain place, was made high treason, if the houses were burned

accordingly: vide Rot. Par. 15 H. 6. n. 23. but as to the treason it is repeald by the statute of 1 E. 6. cap. 12. and 1 Mar. cap. 1. but the felony remains still in case the houses be burned. (e) [1]

In cases of wilful burning of houses the indictment runs, Quod felonicè, voluntariè & malitiosè combussit domum without saying domum mansionalem, as in case of burglary. Co. P. C. p. 67. And to examine this felony these things are inquirable, viz. (a) 3 H. 7. 10. a. (c) cap. 9. (d) By the laws of Ethelstan it was capital, incendiariis capitis pœna esto; vide Leg. Ethelstan, l. 6. and by the laws of Cnute it was one of those capital offenses for which no ransom was allowd. Leg. Canuti, l. 61.

(b) 2 Co. Instit. 188.

(e) But since by the 9 Geo. I. cap. 22. it is made felony without benefit of clergy, knowingly to send any letter without a name subscribed, or signed with a fictitious name demanding money, venison or other valuable thing. This statute is amended by Stat. 27. Geo. 2. c. 15. knowingly to send any letter without a name, or with a fictitious name, demanding money, venison, or any other valuable thing, or threatening (without any demand) to kill any of the king's subjects, or to fire their houses, out-houses, barns, or ricks, is made felony without benefit of clergy. Vide 7 & 8 Geo. IV. c. 29, s. 8. Archb. Pl. & Ev. in Crim. Law, 606.

[1] The English statutes in force at present are: 7 Wm. IV. & 1 Vict. c. 89. § 3. 5 & 6 Vict. c. 38. § 1. 7 & 8 Vict. c. 62. § 1, 3, 4. The statute 7 & 8 Geo. IV. c. 27, wholly repeals the statute 23 Hen. VIII. c. 1. 43 Eliz. c. 13. 22 & 23 Car. II. c. 7. 9 Geo. İ. c. 22. (The Black Act) 9 Geo. III. c. 29 & 52 Geo. III. c. 130; and the statute 9 Geo. IV. c. 31, wholly repeals the statute 43 Geo. III. c. 58. (Lord Ellenborough's Act.) These statutes do not alter the nature of the offence, or create any new offence, except that they extend to the burning of other buildings than dwelling-houses, or out-houses parcel thereof. See Burn's Just. Vol. I. Tit. Burning, 29th Ed. 1845. See Reg. v. Jones, 1 Car. & Kir, 303. 2 Mood. C. C. 308. Reg. v. England, 1 Car. & Kir, 533. Reg. v. Paice, 1 Id. 73. For the United States Statutes, see the Act of March 3, 1825. sects. 1, 2. 11, 3 Story's U. S. Laws, c. 276. p. 1999. Peters's Statutes at Large, vol. 4, p. 106.

For the Massachusetts statutes, see Rev. Stat. c. 126. sects. 1, 2, 3, 4, 5, 6, 7, 8. For the New York statutes, see Rev. Stat. 657. sects. 9 & 10. 2 ld. 666. sects. 1, 2, 3, 4, 5, 6, 7, 8, 9.

For the statutes of New Jersey, sec Statutes of New Jersey, (1847,) Tit. “ Crimes and Punishments," p. 265.

For the statutes of Pennsylvania, see Stroud's Purd. Dig. Tit. “ Arson,” p. 80. 6 Ed. p. 83. 7 Ed.

For the statutes of Virginia, see Rev. Code, ch. 171. sect. 5.

1. What shall be said domus. 2. What domus of another. 3. What a malicious and wilful burning. 4. What kind of felony this is. 5. Whether and how clergy is allowable.

1. What shall be said domus.[2]

[2] The building in respect of which the offence is committed, must come within the ordinary and established meaning of the words used in the statutes. The mere using the building for a particular purpose, does not necessarily alter the nature of the building. Elsmore v. St. Briavells, 2 Man. & Ry. 514; B. & Cr. 461. S. C. An open building in a field, at a distance from and out of sight of the owner's house, though boarded round and covered in, Rex v. Ellison, Mood. C. C. 336; a cart-hovel, consisting of a stub bled roof supported by uprights, in a field at a distance from other buildings, Rex v. Parrott, 6 Car. & P. 402 was held not to be within the statute of 7 W. IV. & 1 Vict. c. 89. But an open shed in a farm-yard, covered with straw as a roof, was. Rex v. Stallion, 1 Mood. C. C. 398; Rex. v. Houghton, 5 Car. & P. 555; Rex v. James, 1 Car. & Kir. 303. A school-room, which was separated from a dwelling-house by a narrow passage, about a yard wide, the roof of which was partly overhung by that of the dwellinghouse, the two buildings, together with some others, and the court which enclosed them, being rented by the same person, was ruled to be well described as an out-house. Rex v. Winter, Russ. & Ry. 295.

As to how far the burning of part of a dwelling-house, &c. (under 9 Geo. I. c. 22.) may be an offence, see North's case, 2 East's P. C. 1021.

A common gaol was holden to be a house within the same statute. Donnevan's cases, 2 Bl. Rep. 682; 2 East's P. C. 1020. S. C. But where a prisoner set fire to his cell, for the purpose of effecting his escape, and such intent was shown, it was held in New York not to be arson. The People v. Cottrell, 18 Johns. R. 115; so also in Virginia, Com. v. Posey, 4 Call's R. 109.

A cotton-mill was held to be within the meaning of the 9 Geo. III. c. 29. s. 2 ; Anon. 2 Russ. 493. Burning a school-house is arson within the statutes of Connecticut and Maryland. State v. O'Brien, 2 Root R. 516; Jones v. Hungerford, 4 G. & J. 402. But is no crime at common law. Wallace v. Young, 5 Monr. 156.

Cases in burglary are referred to in the books to settle what is a dwelling house, with respect to arson. 7 Dane's Abr. 134; 2 East's P. C. 1020; Rex v. McDonald, 2 Lew. C. Cas. 46; 2 Russ. on Crimes, 489. note t

1. A dwelling-house, at common law, includes all buildings, and apartments under the same roof, oocupied with it for any purpose whatsoever. Thus, a wash-room (Burrows's case, Moody's Cas. 274,) under the same roof with the main dwelling, having no internal communication with it, was held to be part of it. And where the principal dwelling and a stable, cow-house, cottage, and barn stood in a line adjoining each other under the same roof, in the order of which they are named, the barn was part of the dwellinghouse. Brown's case, 2 East, P. C. 501.

2. A dwelling-house includes all buildings and apartments under the same roof, however and by whomsoever occupied, which have a closed and covered communication with it. Thus a son living elsewhere had a shop under the same roof with his father's house, having a communication with it through the cellar, and the shop was held to be part of the father's house. (Sefton's case, R. & R. 102.) A tenant had a sleeping-room on the first floor and a work-shop in the garret, (Currell's case, 1 Leach, 237,) and two tenants had each a dwelling-house and shop in the same building, having a communication between the apartments; the shop and workshop were held to be part of the dwelling-house. (Rex v. Baily, 1 Mood. 23.) The same point was also settled in Stock's case, R. § R. 185; and in Com. v. Chevalier, 7 Dane Abr. 134.

3. A dwelling-house comprehends all buildings within its curtilage occupied with it for any purpose, although not under the same roof, nor adjoining to it, nor having any closed or covered communication with it-as a school-room, (Rex v. Winters, R. & R. 295;) a warehouse, (Walter's case, Moo. 13; Lithgo's case, R. & R. 357;) chambers over a press, shop passage and lumber-room, (Rex v. Hancock, R. & R. 170;) a workshop, (Rex v. Chalking, R. & R. 334;) a goose house, (Rex v. Clayburn, R. & R. 360;) a barn, stable, cow-house, sheep-house, dairy-house, and milk-house. 3 Inst. 67.

4. It comprehends adjoining buildings, used by its occupants for domestic purposes, although not within the curtilage. "All out-buildings, as barns, stables, dairy-houses, adjoining the house, are looked upon as part of it." (1 Bac. Ab. Burg. E.) "Out-houses adjoining to a dwelling-house, and occupied as a parcel thereof, though there be no com

It extendeth not only to the very dwelling-house, but to all outhouses, that are parcel thereof, tho not contiguous to it, or under the same roof; as in case of burglary, the barn, stable, cow-house, sheephouse, dairy-house, mill-house. Co. P. C. p. 67. 11 H. 7. 1. b.(ƒ)

(f) The words of the book are, because the barn was adjoining to the house, it was holden to be felony; to make which serve our author's purpose we are not to understand thereby its being contiguous, but being so near the house, as to be parcel thereof.

mon enclosure or curtilage, may still be considered as parts of the mansion." (2 East, P. C. 493.) In Rex v. Brown, (2 East, P. C. 501,) the principal dwelling-house, stable, cow-house, cottage, and barn adjoining each other, were held to be one dwelling, and although the level of the roof was uniform throughout, yet it is plain that they were distinct buildings. But where an occupant of a dwelling-house occupies an adjoining building for other than domestic purposes, it is not a part of the dwelling-house. This was so held in Egginton's case, (2 Leach, 913;) the principal building was a manufactory, occupied by a firm, and the dwelling-house of one of the partners was in one of the wings. As there was no communication between them, the manufactory was held to be no part of the dwelling-house. See ante chap. 48. p. 556, note [11].

The question whose house a dwelling-house is in respect to arson, has been much discussed. In Holme's case, (2 East, P. Č. 1027, S. C. Cro. Car. 376; S. C. William Jones, 351,) it was held, that the malicious burning of his own house by a lessee for years, whereby the buildings of others were in danger of being burnt, was not a felony; that is, was not arson, but was a high misdemeanor, of which the offender was convicted, and for which he was punished under an indictment for a felony. It has been doubted whether he ought to have been convicted under such an indictment, but no question has been made of his being indictable for a misdemeanor. In Harris's case, (2 East, 1023,) Mr. Justice Foster expressed the opinion, that the burning of a house by the rever. sioner, which was occupied by a tenant under a lease, is not the burning of the dwelling-house of another. In the same case it was held, that where the widow was entitled to dower to whom it had not been set off, and a house which had belonged to her husband subject to a mortgage, being occupied by a lessee, was burnt by her, it was arson. In Spalding's case, (2 East, P C. 1025, decided 1780,) after the preceding, it was held not to be arson where the mortgagor, being in possession, set fire to his house, for the purpose of defrauding insurers, as it was not the dwelling-house of another. See Breeme's case, (2 East, P. Č. 1026, S. C. 1 Leach, 220,) the burning of his own house by a lessee for years, was held not to be arson, because it was not the dwelling-house of another. In this case arson is said to be an offence against the possession. In Pedley's case, (2 East, 1026; S. C. Cald. 218; 1 Leach, 242, A. D. 1782,) it was held, that a house occupied under a lease for three months, was that of the lessee. In this case it is said also, that "arson is an offence against the possession of another." In Gowan's case, (2 East, P. C. 1027, A. D. 1786,) where a pauper burnt the house in which he was put by the parish-officers, for which he paid no rent and in which he had no right, it was held to be arson; that is, it was held to be the house of another: in other words, it was held that the parish were the occupants. In Rickman's case, (2 East, 1034, A. D. 1789,) in which the indictment did not allege whose house was burnt by the defendant, it was held to be a material omission. It was a house occupied by the overseers of the poor for the accommodation of paupers, by one of whom it was burnt, but it was not known in whom the legal estate was. It was held that it might have been alleged to be the house of the overseers of the poor, or of persons unknown. The doctrine as laid down by Mr. East, (P. C. vol. 2, p. 1034,) is, that the house must be alleged in the indictment to be that of the person "who may be said to occupy suo jure." This is precisely the doctrine as to burglary, in respect to which a dwelling-house is that of the occupant. In a case subsequent to those above cited, viz. (Glanfield's case, 2 East, P. C. 1034, A. D. 1791,) a dwelling-house belonged to the occupant of the house, and the out-buildings and farm also belonged to her, and she also occupied a part of the out-buildings with her son, who separately occupied other outbuildings with the farm, of which he took upon himself the sole management at his own risk of loss or profit. One of the out-buildings in use of both, and another in use of the son only, were burnt. It was held, that the indictment must allege one building to