or NOCTURNAL HOUSE-BREAKING, (burgi latrocinium), which by the ancient English law was called hamefucken, a word also used in the law of Scotland, but in a somewhat different sense, 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 fact, 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 secure 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, nuisances, 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 in 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 day-time 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 consist 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 defenceless.

2. As to the place. It must be, according to Sir Edward's 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 defence; 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 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. But to come down a chimney is held a burglarious entry: for that is as much closet as the nature of things will permit. 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. Burglary, 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. 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 a window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries. The entry may be before the breaking, as well as after; for by statute 12 Anne, c. 7, if a person enters into the dwelling-house of another, without breaking in, either by day or by night, with an intent to commit felony, or, being in such house, shall commit any felony; and shall in the night break out of the same; this is declared to be burglary.

4. As to the intent; it is clear that such breaking and entry must be with a felonious intent, otherwise it is only a trespass. And it is the same, whether such intention be actually carried into execution, or only demonstrated by some attempt or overt act, of which the jury is to judge.

Burglary is a felony at common law, but within the benefit of clergy. Burglary in any house belonging to the plate-glass company, with intent to steal the stock or utensils, is by statute 13 Geo. III. c. 3, declared to be single felony, and punished with transportation seven years.