or nocturnal house-breaking, (burgi latrocinium,) which by the ancient English law was called hanefucken, a word also used in the law of Scotland, but in a somewhat different tenor, has always been looked upon as a very heinous offence; not only because of the abundant terror it carries with it, but also as it is a forcible invasion and disturbance of that right of habitation which every individual might acquire even in a state of nature; an invasion which, in such a state, would be sure to be punished with death, unless the assailant were stronger. But, in civil society, the laws come into the assistance of the weaker party: and, besides that they leave him this natural right of killing the aggressor if he can, they also protect and avenge him in case the assailant is too powerful. And the law has so particular and tender a regard to the immunity of a man's house, that it styles it his castle, and will never suffer it to be violated with impunity; agreeing herein with the sentiments of ancient Rome. For this reason no outward doors can in general be broken open to execute any civil process; though in criminal causes the public safety supercedes the private. Hence also in part arises the animadversion of the law upon eaves-droppers, nuisancers, and incendiaries: and to this principle it must be affixed, that a man may assemble people together lawfully (at least if they do not exceed 11), without danger of raising a riot, rout, or unlawful assembly, in order to protect his house; which he is not permitted to do in any other case.

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." 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 daytime there is no burglary; i.e., if there be daylight or crepusculum enough, begun or left, to discern a man's face withal. But this does not extend to moonlight; for then many midnight burglaries would go unpunished; and besides, the malignity of the offence does not confit so much in 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 defenseless.

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 defense; nor is a breaking open of houses wherein no man resides, and which for the time being are not mansion-houses, attended with the same circumstances of midnight terror. A house, however, wherein a man sometimes resides, and which the owner hath left only 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, 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 appurtenances, if within the curtilage or homestead. 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.

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 be an actual breaking; 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 has provided. But if a person leaves his doors or windows open, it is his own folly.