in Law, is applied to one who is guilty of maliciously setting fire to another's dwelling-house, and all outhouses that are parcel thereof, though not contiguous to it, or under the same roof, as barns and stables. A bare intent or attempt to do this, by actually setting fire to a house, unless it absolutely burns, does not fall within the description of incendii et combusti. But the burning and consuming of any part is sufficient; though the fire be afterwards extinguished. It must also be a malicious burning; otherwise it is only a trespass. This offence is called arson in our law.

Among the ancients, criminals of this kind were to be burnt. Qui aedes, acervumque frumenti juxta domum posuisse scierit, prudenteque dolo malo combusturit, vinculo igni necatur.

The punishment of arson was death by our ancient Saxon laws and by the Gothic constitutions: and in the reign of Edward I. incendiaries were burnt to death. The stat. 8 Hen. VI. c. 6. made the wilful burning of houses, under special circumstances, high treason; but it was reduced to felony by the general acts of Edward VI. and Queen Mary. This offence was denied the benefit of clergy by 21 Hen. VIII. c. 1., which statute was repealed by 1 Edw. VI. c. 12.; and arson was held to be out of clergy, with respect to the principal, by inference from the stat. 4 and 5 P. and M. c. 4., which expressly denied it to the accesorify; though now it is expressly denied to the principal also, by 9 Geo. I. c. 22.