his money, throw it into a bush, and the thief take it up; this is a taking from the person.'

We are told by Mr. Selden, that, before the conquest, robbery was punished differently, by the different nations who came from the continent of Europe. By the Saxons, it was punished with death: by the Angles, and by the Danes, it was punished only with fine. After the conquest, these different laws were settled by the Normans in the more merciful way; and if the delinquent fled, his pledge satisfied the law for him. But in the times of Henry the first, the law was again reduced to the punishment of this crime by death: and so it has continued ever since.1

In the ancient laws of Wales, it is expressly declared, that robbery shall never be punished with death; “because (say these laws) it is a sufficient satisfaction for this crime, if the goods taken be restored, and a fine paid to the person from whom they were taken, according to his station, for the violence offered him, and another to the king for the breach of the peace.'

Robbery, by a law of the United States, is punished capitally." By a law of Pennsylvania, a person convicted of robbery forfeits to the commonwealth his lands and goods, and undergoes a servitude not exceeding ten years, in the gaol or house of correction.°

I proceed now to the consideration of two other crimes at the common law, which, though property, as in the case of robbery, enters into their description, yet receive their deep dye from outrages against personal security. This cannot be enjoyed without a legal guard around the residence of the person.

"A man's house is his castle" was the expression, in times rude and boisterous, when the idea of security was found only on its association with the idea of strength; and in such times, no expression more emphatical could have been used. In happier times, when the blessings of peace and law are expected and due-in such times, a man's house is entitled to an appellation more emphatick still-in such times, a man's house is his sanctuary. "Quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium ?" "Into this sanctuary, the law herself, unless upon the most urgent emergencies, presumes not to look or enter. We have seen, on many occasions, with what a delicate-I may add, with what a respectful-reserve, she treats the near and dear domestick connexions. We may well suppose, that she will guard, with peculiar vigilance, the favoured spot in which a family reside. Even those who endeavour clandestinely to pry into its recesses—such are♣ eaves-droppers-receive her reprehension: and unless the peace or security of the publick require it, she will not suffer its doors to be broken, to execute even her own imperial mandates. When she thus solicitously protects the residence of a family from inferiour insults, we may rely, that she will zealously defend.

it from atrocious crimes. Such are arson and bur.

glary.

r

Arson is a felony at common law, in maliciously and voluntarily burning the house of another. This is not intended merely of the dwelling house itself, but extends to the outhouses; as the barn, the stable, the cow house, the dairy house, the mill house, the sheep house; which are parcel of the mansion house."

t

This crime may be committed by wilfully burning one's own house, if the house of another is also burnt; but if no mischief is done to that of another, it is not felony, though the fire was kindled with an intention to burn the house of that other. But if the intention is to burn the house of another person, and by the burning of this the house of a third person is also burned; the burning of the house of this third person is felony; because the pernicious event shall be coupled with the felonious intention. "

V

Neither the mere intention to burn a house, nor even an actual attempt to burn it, by putting fire to it, will, if no part of it be burnt, amount to felony; but if any part of the house be burnt, it is arson, though the fire afterwards go out of itself, or be extinguished. No misfortune, nor even culpable negligence or imprudence, will amount to arson: it must be voluntary and malicious. A person, by shooting with a gun, set fire to the roof of a house; this was determined not to be felony. w

Arson is a crime of deep malignity. The object of other felonies against the right to property, is merely to give it a new master; the object of arson is to destroy it-to lose it to society, as well as to its owner. The confusion and terrour which attend arson, and the continued apprehension which follows it, are mischiefs frequently more distressing than even the loss of the property.

The crime of arson was one of the very few punished capitally by the Saxon law. In the reign of Edward the first, those who perpetrated this crime were burnt, that they might suffer in the same manner, in which they had been criminal. This crime is also one of the very few still punished capitally in Pennsylvania.

X

y z

Burglary is a felony at the common law, in breaking and entering, by night, the mansion house of another, with intent to commit a felony. *

a

There have been some opinions, that this crime, on a construction of the phrase "by night," may be committed at any time after the setting and before the rising of the sun; because the day was deemed to begin at the end, and to end at the beginning of those times; but the later and better opinion is, that if there be day light enough to discern the countenance of a man when the crime is committed, it cannot amount to a burglary.

1. Reev. 485.

X

y 1. Laws. Penn. 137.476.

b

By an act of assembly passed 22d April, 1794, arson is punished by imprisonment at hard labour, for a period not less than five, nor more than twelve years. 3. Laws. Penn. 600. Ed.

a 3. Ins. 63. 1. Haw. 101.

1. Haw. 101.

To a burglary it is necessary, that the house be both. broken and entered. The breaking must be actual, and not merely such as the law implies in every unlawful entry on the possession of another. To open a window; to unlock the door; to break a hole in the wall; to enter an open door and unlatch a chamber door; to come down the chimney; to knock at the door and rush in when it is opened; to gain admittance by an abuse of legal process, or by the means of a conspiring servant; all these are actual breaches. The least degree of entry with any part of the body, or with an instrument held in the hand, or even a load discharged from a gun, is sufficient to satisfy that entry, which the law deems necessary to constitute the crime of burglary. ©

In a dwelling house only burglary can be committed. But a house in which one sometimes resides, and has left with an intention to return; a house which one has hired, and into which he has brought part of his goods, though he has not lodged in it; a chamber in a college; a room occupied in a private house by a lodger; the out houses adjoining to the principal house; all these are mansion houses within the meaning of the law. A shop may be parcel of a mansion house; but if it is severed by a lease to one who works in it by day only, and does not lodge in it, it is not burglary to break and enter it in the night time.

To a burglary, an intention to commit some felony, and not merely a trespass, is indispensable; but, as was shown on another occasion, it is not necessary that the

f

1. Haw. 103. d 3. Ins. 64. 1. Haw. 103. 104. 4. BL. Com. 226. e Wood. Ins. 388.

f Ante. p. 26.