51 3 B V R 
BURGH-MAILS, f yearly pavments to the crown of 
Scotland, introduced by Malcolm III. and refembling the 
fee-farm rents of burghs in England. 
BURGH'MO I is, f. the court of a borough. Bv the 
laws of king ltd gar, the bnrghniote was to be held thrice 
in the year; bv thole of Henry I. twelve times. 
BUR'GLAR, f. One guilty of the crime of houfe- 
breaking. 
bUR'GI. A R"Y, /. [from Irdrg, a houfe, and larron, a 
thief;• J>m<ri /atrociniuin, Lat. by our ancient law called 
hamefecken , as it is in Scotland to this day.] A felony at 
common law, in breaking and entering the nmnfion-houie 
of another, or the walls or gates of a walled town, or a 
church, in the night, to rtie intent to commit fome felony 
within the lame; whether the felonious intent be execu¬ 
ted or not. r Hawk. P. C. c. 3S. 4 Comm. 224. It fee ms 
the plained method to conlider the fubjeCt according to 
the four parts of the above definition; and then to add 
iomething on the punilhment ot this offence. 
1. Tltete -muft be both a breaking and an entry to com¬ 
plete this offence. Every entrance into the houfe by a 
trefpaficr is not a breaking in this cafe, but there muff be 
an actual breaking. As, if the door of a manfion-houfe 
Hands open, and the thief enters, this is no breaking. So 
it is if the window of the houle be open, and a thief with 
a hook or other engine draweth out fome of the goods of 
the owner, this is no burglary, becaufe there is no aftual 
breaking of the houfe. But, if the thief breaketh the 
glafs of the window, and with a hook or other engine 
■draweth out fome of the goods of the owner, tins is bur¬ 
glary, fur there was an actual breaking-of the houfe. 3 
'inf. 64. But the following aft s amount to an actual break¬ 
ing, viz. opening tire cafement or breaking the glafs win¬ 
dow, coming down the chimney, picking open the lock 
Of a door or putting back the lock, or the leaf of a win¬ 
dow, or unlatching the door that is only latched. 1 Hg.l. 
H. P. C. 5.52. 
If thievesipretend buhnefs to get into a houfe by night, 
and thereupon the owner of the houle opCns his door, and 
they enter and rob the houfe, this is burglary. Kel. 42. 
So if periods, defigning to rob a houfe, take lodgings in 
it, and then fall on the landlord and rob him ; or where 
perfons', intending to rob a houle, raife a hue and cry, and 
prevail with the conftable to make fearch in the houfe, 
and having got in by that means, with the owner’s confent, 
bind the conftable, and rob the inhabitants; in both thefe 
inllances tiiev are guilty of burglary, for thefe evafions 
rather increme the crime. 1 Hawk. P. C. c. 38. If 3 per- 
fon be within the houle and fteal goods, and then open 1 
the houfe on the infide, and go out with the goods, this 
,is burglary, though the thief did not break the houfe. 3 
Inf. 64. But this was not admitted to be law with any 
certainty ; and therefore, by (fat. 1 2 Anne, c. 7, it is enaCt - 
ed, “ that if any perfon (hall enter into the manfion-houfe 
of another, by day or by night, without breaking, the 
lame, with an intent to commit felony, or being in fuch 
houle lhall commit any felony, and (hall in the night-time 
break the.find houfe to get out, he (hall be guilty of bur¬ 
glary, and oulled of the benefit of clergy, in the fame 
manner as i( h.e had broken and entered the houfe in the 
night-time, with intent to commit felony.” Any the leaft 
entrv, eitiier with the w hole or with but part of the body, 
or wirh any inftrument or weapon, will fatisfy the word 
entered in an indictment for burglary: as if one put Ins 
foot over the tlirefhold, or his hand, or a hook, or piftol,, 
within a window, ot turn tlie key'of a door which is lock¬ 
ed on the infide, or dilcharge a loaded gun into a houfe, 
&c. 1 Hawk. P. C. c. 38, and'the authorities there cited. 
But where thieves had bored a bole through the door, 
•with a centcr-bit, and part of the chips were found in the 
infide of the houle, yet as they had neither got in them- 
felves, nor introduced a hand or inftrument. for the-pur- 
pofe of taking the property, the entry was ruled incom¬ 
plete. W hen feveral come with a defign to commit bur¬ 
glary,. and one docs it, while the reft watch near the 
BUR 
houfe, here his aft is, by interpretation, tire aft of all of 
them. And, upon a like ground, if a fervant, confedera¬ 
ting with a rogue, let him in to rob a houfe, it has been 
determined by all the judges, upon a fpecial verdict, that 
it is burglary both in the fervant and the thief. Leach's 
Hawk. P. C. i. c 38. 
2. It is certainly a dangerous, if not an incurable, fault, 
to omit the word dwelling houfe in an indictment 
for burglary in a houfe. But it feems not necetfary or 
proper in an indictment for burglary in a church, which 
by all the ancient authorities is taken as a diftinCt bur- 
■ glaryn If a man hath two houfes, and relides foinetimes 
in one and fonietimes in the other, if the houfe he doth 
not inhabit is broken by an? perfon in the night, it is bur¬ 
glary. Pop!/.. 52. A chamber in an inn of court, &c. where 
one ufually lodges, is a manfion-houfe; for every one hath 
a feveral property there. {But a chamber where anv per- 
lon doth lodge as an inmate, cannot be called his marifion; 
though, if a burglary be committed in his lodgings, the 
indictment may lay the offence to be in the manfion-houfe 
of him that let them. 3 ////?.65. Kel. 83. If the owner 
of the houfe breaks into the rooms of his lodgers, and 
fteals their goods, it cannot be burglary to break into his 
own houfe, but it is felony to fteal their goods. Wood’s 
Inf. 378. But fee contra, 1 Hawk. P. C.. c. 38. If the 
owner lives under the fame roof with the inmates, there 
mull be a feparate outer door, or the whole is the manfioit 
of the owner; but, if the owner inhabit no part of the 
houfe, or even if he occupy a (hop, or a cellar in it, but 
do not Sleep therein, it is the manlion of each lodger, al¬ 
though there be but one outer door. Leach’s Hawk. P. C. 
c.. 38. There being only one door in common to all the 
inhabitants makes no difference, where the owner does not 
fleep in any part of the houfe, for in that cafe each apart¬ 
ment is a feparate manlion. Chambers, in inns of court, 
&c. have feparate outward doors, which are the extremity 
of obftruCtion, and are enjoyed as feparate property, as 
eftates of inheritance, for life, or during relidence. So a 
houfe divided into feparate tenements, with a diftinCt out¬ 
ward door to each, will be feparate houfes. Part of a 
houfe divided from the reft, having a door of its Own to 
the ftreet, is a manfion-houfe of him who hires it. Kel. 84. 
To break and enter a fhop, not parcel of the manfion- 
houfe, in which the fhopkeeper never lodges, but only 
works or trades there in the day-time, is not burglary, 
but only larceny; but if he, or his fervant, ufually or often 
lodge in the fhop at night, it is tiien a manfion-houfe, in 
which a burglary may be committed. 1 H. P. C. 557, 538. 
But, respecting burglary in the work-fhops of the plate- 
glafs manufactory, it is made (ingle felony, and punifhable 
with tranfpoitation for feven years. If the lhopkeeper 
deep in any part of the building, however diftinCt tiiat 
part is from the (hop, it may be alleged to be his manfion- 
houfe ; pro'vided the owner does not fleep under the fame 
roof alfo. Reach's Hawk. P. C. i. c. 38. A lodger in an 
inn hath a fpecial intereft in his chamber, lo that if he 
opeivs his chamber door, and takes goods in the houfe, and 
goes away, it feems not to be burglary. And where A 
enters into the lionfe of.B in the night, by the doors open, 
and breaks open a chelt, and fteals goods without break¬ 
ing an inner 'door; it is no burglary by the common law, 
becaufe the chelt is no part of the houfe : though it is fe¬ 
lony onfted of clergy by ftatute 3 William and Mary, c. 9 ; 
and, if 011c break open a counter or cupboard, fixed to a 
houfe, it is burglary. 1 Hale's Hif. P. C. 554. All out¬ 
buildings, as barns, (tables, warehoufes, &c.; adjoining to a 
houfe, are-looked upon as part thereof, and confequently 
burglary may be committed in them. And, if the ware- 
ftoule, &c. be parcel of the manfion-houfe,. and within 
the fame, though not under the fame roof, or contiguous, 
a burglary may be committed therein. But an out-houfe 
occupied with, but feparated from, the dwelling-hcmfe by 
an open palfage eight feet wide* and not within or con¬ 
nected by any fence, incloling both, is not within the cur¬ 
tilage-or homeftall. Leach's Hawk. P.C. i. c. 38. 4 Comm, 
a 25,. 
