BUR 



Cfed tlf»*n) wiihout dAnjcr of railing a riot, rorit, or iin- 

 Inwfnl afTcmblv, in order to proted and defend liis hoiifL- ; 

 which lie is not pernjittcJ to do i.i any other cafe, i H»l. 



P- ^- 547- 



The definition of a burglar, as given by Sr Edward Coke 



(; liifl. 65) is, " he that by nij^ht bieak>th and enttreth 



int''" a Tiaiifion-houfe, with inter.t to commit a felony." In 



this definition, fays Judge lM;ick(lore (Comment, vol. iv. p. 



12 i) there are four things to be coiifidered ; the timi; tiie 



flc.'t, the n. VI tier, and the /'n/«i.'. 



1. Th.etim! muilbeby night, and not by day ; for in the 

 day-time there is no burglary. In confidering what is 

 reckoned night, the day was anciently accounted to begin 

 at fun-rifing and to end immediately upon fun-fet : but the 

 better opini.'n fcems to be, that if there be daylight or 

 twilight lufficient, begun or left, for difceining a man's face, 

 it is no burglary. 3 InIL 63. i Hal. P. C. 350. I Hawk. 

 P. C. 101. B'Jt this does not extend to moon-light: for 

 then many midnight burglaries would go nnpunifhed ; and 

 bcfides, the malignity of the olTcnce docs not fo properly 

 arife from its being done in the dark, as at the dead of 

 night ; when the whole creation, except beafts of prey, is at 

 relt ; when fleep has difarnied the owner, and rendered his 

 caftle dcfencelefs. 



2. As to the phrr. It muft be by the definition a 

 manfion-houft ; and, therefore, in order to account for the 

 reafon why breaking open a church is burglary, as it un- 

 doubtedly is. Sir Edward Coke quaintly obferves, that it is 

 " domus manfionalis Dei." But it is not neceffary that it 

 (liould in all cafis be a manfion houfe ; for it may be commit- 

 ted by breaking the gates or walls of a town in the night. 

 Accordingly Spclmaii defines burglary to be " Nofturna 

 diruptio alicujus habitaculi, vel ecclefix, etiam muiorum 

 portarumvc burgi, ad feloniam perpetiandam." No diilant 

 barn, warehoufe, or the like, has the fame privileges as a 

 mjr.fion or dwelling-houfe, nor is regarded as a man's caftle 

 of defence : nor is a breaking open of houfes in which no 

 man refides, and which, therefore, for the time being are 

 not maulion-hoiifes, attended with the fame circumftances 

 of midnight terror. A houfe, however, in which a man 

 fometimes refides, and which the owner hath only left for a 

 fliort feafon, animo revst ismli, is the objeft of a burglai-j', 

 though no one be in it at the time when the faft is commit- 

 ted. I Hal. P. C. j66. Foft. 77. If a barn, ftable, or 

 warehoufe be parcel of the manfion -houfe, and within the 

 fame common fi:nce, though not under the fame roof, or 

 contiguous, a burglary may be committed in it ; for the 

 capital houfe protects and privileges all its branches and 

 appurtenants, if within the curtilage or homeftall. i Hal. 

 P. C. 55^1. I Hawk. P. C. 104. A chamber in a college 

 or an inn of court, where each inhabitant has a diftinft 

 property, is, to all other pnrpofrs as well as to this, the 

 manfion-houfe of the owner, i Hal. P. C. 5^6. A room, 

 or lodging, in any private houfe, is alfo the manfion for the 

 time being of the lodger ; if the owner doth not hlmfelf dwell 

 in the houfe, or if lie and the lodger enter by different out- 

 ward doors. But, if the owner himfelf lies in the houfe, 

 and hath only one outward door at which he and his lodger 

 enter, fuch lodgers feem only to be inmates, and all their 

 apartments to be parcel of the one dwelling-houfe of the 

 owner. Kel. 84. i Hal. P. C. 556. Thus alfo the houfe 

 of a corporation, inhabited in feparate apartments by the 

 officers of the body corporate, is the manfion-houfe of the 

 .corporation, and not of the refpeftive officers. Fofter, 38, 

 39. If I hire a (liop, parcel of another man's houfe, and 

 ■work or trade in it, but never lie there, it is no dwelling- 

 houfe, nor can burglary be committed in it ; but if I or my 



BUR 



forvant, ufually or often lodge in the Hiop at night, it then 

 becoT.es a manfion-hov.fe and the objeft of burgbry. If 

 tlir fliop-keeper fleep in any part of the building, however 

 dilliiiift thit part is from the fliop, it may be alleged to be 

 his manli ,n-houfc ; provided the owner docs not fleep under 

 the fame roof alfo. Leach's Hawk. P. C. I. c. 3S. ^ 16. 

 By 13 Geo. III. c. 38. burglary in the workfhops of the 

 pi ite glafs manufaftory, with intent to fteal the ftock or 

 utenlils, is declared to be fingle felony, and piinifhed with 

 tranfportation for feven years. No burgkry can be com- 

 mitted in a tent or booth, erefted in a market or fair, 

 though the owner may lodge in it. I Hawk. P. C. IC4 ; 

 but by Stat. 5 and 6 Ed. VI. c. 9. clergy is taken from 

 this offence. 



3. As to the manner of committing 'oiirglary ; there mud 

 be both a breaking and an entry to complete this offence. 

 But they need not be done at once : for, if a hole be 

 broken one night, and the fame breakers enter the next 

 night through the fame, they are burglars, i Hal. P. C. 

 531. There muft in general be an aflnal breaking, fo that 

 it may be regarded as a fubftantial and forcible irruption. 

 Such are breaking, or taking out the glafs of, or otherwife 

 opening, a window, and taking out goods ; picking a lock, 

 or opening it with a key; and lifting up the latch of a door, 

 or loofinT any other faftenings which the owner has provided. 

 But if a perfon leaves his doors or windows of his houfe 

 open, and a man enters by them, or with a hook or by any* 

 other means draws out feme of the goods of the owner, it is no 

 burglary ; but if, having entered, he afterwards unlocks an 

 inner or chamber door, or if he comes down a chimney, he* 

 is deemed a burglar. If a perfon enters by the open door of 

 a houfe, and breaks open a cheft and fteals goods, this is 

 no burglary by the common law, becaufe the cheft i? no part 

 of the houfe ; though this is felony ouftcd of clergy by Stat. 

 3 W. and M. c. 9 ; but if one break open a cup-board or 

 counter, fixed to a houfe, it is burglary, i Hal. P. C. 

 5J2, 553, 554. I Hawk. P. C. 102. So alfo to knock 

 at the door, and upon its being open to rufh in with a fe- 

 lonious intent ; or under pretence of taking lodgings, to 

 fall upon the landlord and rob him ; or to procure a con- 

 ftable to gain admittance, in order to fearch {or traitors, 

 and then to bind the conftab'e and rob the houfe ; are all 

 deemed burglarious ails, aggravated by the evalions that 

 attend any of them. 1 Hawk. P. C. 102. And alfo, if 

 a ftrvant opens and enters his raafter's chamber-door with 

 a felonious defign; or if any other perfon lodging in the 

 fame houfe, or in a public inn, opens and enters another's 

 door with fuch evil intent ; it is burglary. Nay, if a fer- 

 vant confpires with a robber, and lets him into the houfe by 

 night, this is burglary in both (Stra. 8S1. i.Hal. P. C. 

 553. I Hawk. P. C. lOj) ; for the fervant is doing an un- 

 lawful aft, and the opportunity afforded him of doing it 

 with greater eafe rather aggravates than extenuates the 

 guilt. As for the entry, any the leaft degree of it, with 

 any part of the body, or with an inftrument held in the 

 hand, is fufKcient ; as, to ftep over the threfhold, to put a 

 hand or a hook in at a window to draw out goods, or a 

 piftol to demand one's money, are all of them burglarious 

 entries.- i Hal. P. C. 535. 1 Hawk. P. C. 103. Foft. 

 108. When feveral come with a defign to commit burg- 

 lary, and one does it while the rell watch near the houfe, 

 the aft of one is, by interpretation, the aft of all of 

 them. The entry may be before the bieaking as well as 

 after; for by Statute 12 Ann. c. 7. if a perfon enters into 

 the dwelling-houfe of another, without breaking in, either 

 by day or by night, with intent to commit Llonv, or being 

 in fuch houfe, ftiall commit any felony ; and ihall in the 



right 



