2. What are the felonies?—205–215.

The felonious offenses more immediately against the personal security of the subject, are: 1. Mayhem. 2. Forcible abduction and marriage. 3. Rape. 4. The crime against nature.

3. What is the crime of rape ?-210.

The carnal knowledge of a woman forcibly, and against her will.

4. Who is presumed by law incapable to commit a rape?-212. A male infant under the age of fourteen years.

5. May rape be committed upon a concubine or harlot ?-212,213. The law of England holds it to be felony to force even a concubine or harlot, because the woman may have forsaken that unlawful course of life.

6. What is the punishment of the crime against nature ?—216. It is capital.

7. What are the inferior offenses or misdemeanors against the personal security of the subject?-216.

They are: 1. Assault. 2. Battery. 3. Wounding. 4. False imprisonment. 5. Kidnapping.

8. How are assaults, batteries, and wounding punishable?—216,

217.

As private wrongs, or civil injuries, a satisfaction or remedy is given to the party aggrieved; but, as a breach of the king's peace, or affront to his government, and a damage done to his subjects, they are also indictable and punishable with fine and imprisonment; or with other ignominious corporeal penalties, where they are committed with any very atrocious design, as in case of an assault with intent to murder.

9. What species of battery is there more atrocious and penal than the rest?-217.

The beating of a clerk in orders, or clergyman.

10. What are its penalties ?-217, 218.

It is subject to three kinds of prosecution, all of which may be pursued for one and the same offense: an indictment for the assault and battery; a civil action for the special damage sustained; and a suit in the ecclesiastical court.

CHAPTER XVI.

OF OFFENSES AGAINST THE HABITATIONS OF INDIVIDUALS.

1. What are the offenses that more immediately affect the habita tions of individuals or private subjects?-220.

Two: Arson and burglary.

2. What is arson?-220.

Arson is the malicious and wilful burning of the house or outhouse of another man.

3. Why is arson much more pernicious to the public than simple theft?-220.

Because, first, it is an offense against that right of habitation, which is acquired by the law of nature as well as by the laws of society; next, because of the terror and confusion that necessarily attend it; and, lastly, because in simple theft the thing stolen only changes its master, but still remains in esse for the benefit of the public, whereas by burning the very substance is absolutely destroyed.

4. Is not arson frequently more destructive than murder itself?—

220.

It is; since murder, atrocious as it is, seldom extends beyond the felonious act designed; whereas fire too frequently involves in the common calamity persons unknown to the incendiary, and not intended to be hurt by him, and friends as well as enemies.

5. What, by the civil law, is the punishment of arson?-220.

It punishes with death such as maliciously set fire to houses in towns, and contiguous to others, but is more merciful to such as only fire a cottage, or house, standing by itself.

6. What kind of house may be the subject of arson ?—221.

Not only the bare dwelling-house, but all outhouses, that are parcels thereof, though not contiguous thereto, nor under the same roof, as barns and stables.

7. When is willfully setting fire to one's own house arson?—221. It is arson, provided one's neighbor's house is thereby also burned; but if no mischief is done but to one's own, it does not amount to felony, though the fire was kindled with intent to burn another's.

8. What if a landlord or reversioner sets fire to his own house, of which another is in possession, under a lease from himself, or from those whose estate he hath ?-221.

It shall be accounted arson; for during the lease the house is the property of the tenant.

9. What shall be said to be a burning, so as to amount to arson? -222.

The burning and consuming of any part is sufficient, though the fire be afterward extinguished.

10. How is arson punished?—222. With death, as a capital felony.

11. How was arson punished in the reign of Edward the First?

-222.

With death; and this sentence was executed by a kind of lex talionis, for the incendiaries were burned to death.

12. How was arson punished by the Gothic constitutions ?—222. In like manner, with death by burning.

13. Can outer doors be broken open to execute process, in criminal cases ?-223.

Yes; because the public safety supersedes the private.

14. How is a burglar defined by Sir Edward Coke ?--224. "He that by night breaketh and entereth into a mansionhouse, with intent to commit a felony."

15. In this definition what things are to be considered?-224. Four things: the time, the place, the manner, and the intent.

16. Can burglary be committed by day?—224.

It cannot the time must be by night, and not by day; for in the day time there is no burglary.

17. In respect of burglary, what is reckoned night, and what day?

-224.

Anciently the day was accounted to begin only at sun-rising, and to end immediately upon sunset: but the better opinion seems to be, that if there be daylight, or crepusculum, enough, begun or left, to discern a man's face withal, it is no burglary.

18. Does the same rule extend to moonlight?—224.

It does not; for then many midnight burglaries would go unpunished; and, besides, the malignity of the offense does not so properly arise from 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.

19. May burglary be committed in a barn, stable, or warehouse?

-225.

It may not, if they are distant from the mansion or dwelling-house; but if they be parcel of the mansion-house, and within the same common fence, though not under the same roof, or contiguous, a burglary may be committed therein.

20. May burglary be committed in a college or an inn of court? -225.

Yes; for 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.

21. Is the house of a corporation, inhabited in separate apartments by the officers of the body corporate, the mansion-house of the corporation, or of the respective officers ?-225.

It is the mansion-house of the corporation.

22. If one hires a shop, parcel of another man's house, and work or trade in it, but never lie there, can burglary be committed therein ? -226.

No; it is no dwelling-house, for by the lease it is severed from the rest of the house, and therefore is not the dwellinghouse of him who occupies the other part.

23. Can burglary be committed in a tent or booth erected in a market or fair?-226.

It cannot; though the owner may lodge therein; for the law regards thus highly nothing but permanent edifices; a house or church, the wall or gate of a town; and though it may be the choice of the owner to lodge in so fragile a tenement, yet his lodging there no more makes it burglary to break it open, than it would be to uncover a tilted wagon in the same circum

stances.

24. What is required to complete burglary?—226.

There must be both a breaking and an entry to complete it.

25. Need the breaking be done, and the entry made, at one time? -226.

They need not; for if a hole be broken one night, and the same breakers enter the next night through the same, they are burglars.

26. What constitutes a breaking in case of burglary?—226.

There must, in general, be an actual breaking; not a mere legal clausum fregit (by leaping over invisible ideal boundaries, which may constitute a civil trespass), but a substantial and forcible irruption; 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, oi unloosing any other fastening which the owner has provided.