Burglary is a felony at the common law, in breaking and' entering, by night, the mansion house of another, with intent to commit a felony.1 There have been some opinions, that this crime, on a construction of the phrase "by night," may be committed at any time after the setting and before the rising of the sun; because the day was deemed to begin at the end, and to end at the beginning of those times; but the later and better opinion is, that if there be daylight enough to discern the countenance of a man when the crime is committed, it cannot amount to a burglary.2 To a burglary it is necessary, that the house be both broken and entered. The breaking must be actual, and not merely such as the law implies in every unlawful en-try on the possession of another. To open a window; to unlock the door; to break a hole in the wall; to enter an open door and unlatch a chamber door; to come down the chimney; to knock at the door and rush in when it is opened; to gain admittance by an abuse of legal process, or by the means of a conspiring servant; all these are actual breaches. The least degree of entry with any part of the body, or with an instrument held in the hand, or even a load discharged from a gun, is sufficient to satisfy that entry, which the law deems necessary to constitute the crime of burglary.3 In a dwelling house only a burglary can be committed. But a house in which one sometimes resides, and has left with an intention to return; a house which one has hired, and into which he has brought part of his goods, though he has not lodged in it; a chamber in a college; a room occupied in a private house by a lodger; the out-houses adjoining to the principal house; all these are mansion houses within the meaning of the law. A shop may be 13 Ins. 63. 1 Haw. 101. 21 Haw. 101. 43 Ins. 64. 1 Haw. 103, 104. 4 Bl. Com. 226. parcel of a mansion house; but if it is severed by a lease to one who works in it by day only, and does not lodge in it, it is not burglary to break and enter it in the nighttime.1 To a burglary, an intention to commit some felony, and not merely a trespass, is indispensable; but, as was shown on another occasion, it is not necessary that the felony intended be committed; and it is immaterial whether that felony be by common or by statute law.3 By the law of Athens, burglary was a capital crime.1 Among the Saxons also, burgessours were to be punished with death. In Pennsylvania, burglary and robbery receive precisely the same punishment. The punishment for robbery has been already mentioned. 1 Wood Ins. 388. $ 4 Bl. Com. 227. 5 1 Reev. 485. 2 Ante, p. 358. 41 Pot. Ant. c. 26. 6 2 Laws Penn. 802, s. 2. CHAPTER III. OF CRIMES AGAINST THE RIGHT OF INDIVIDUALS TO LIBERTY, AND TO REPUTATION. LIBERTY, as we have seen on former occasions, is one of the natural rights of man; and one of the most important of those natural rights. This right, as well as others, may be violated; and its violations, like those of other rights, ought to be punished, in order to be prevented. Yet these violations are scarcely discernible in our code of criminal law. This we must ascribe to one of two causes. Either this right has been enjoyed inviolably: or the law has suffered the violations of it to escape with shameful impunity. The latter is the truth: I am compelled to add, that the latter, bad as it is, is not the whole truth. Violations of liberty have not only been overlooked: they have also been protected; they have also been encouraged; they have also been made; they have also been enjoined by the law. I speak this not only concerning the statute law; I am compelled to speak it also concerning the common law of England: I speak this not only concerning the law as it was received in the American States before their revolution; I am compelled to speak it also concerning the law as it is received in them still: I speak this not only concerning the law as it is received generally in the other sister states; I am compelled to speak it also concerning the law as it is received in Pennsylvania: nay, I am farther compelled to speak it also of the law as it is recently received in our national government. Our public liberty we have indeed secured ;—esto perpetua-But, notwithstanding all our boasted improvements --and they are improvements of which we may well boast -the most formidable enemy to private liberty is, at this moment, the law of the land. 1 In some former parts of my lectures, I have had occasion to remark, and I have remarked with pleasure, that solicitous degree of attention which the law gives to personal security. Its most distant avenues are watchfully guarded. To decide questions, by which it may be affected in the highest, or even in inferior degrees, I have shown, in a sublime part of our system, to be the incommunicable prerogative of sovereignty or selected sovereignty itself. I have shown, that, by an operation inexpressibly fine, personal safety never sees the arm which holds the sword of justice, but at the moment when it is found necessary that its stroke should be made. Inferior to personal safety only, if indeed inferior even to that, is the consideration of personal liberty. And yet, while personal safety can be authoritatively affected only by the community, or a body selected from the community impartially and for the occasion, the law implicitly, causelessly, unconditionally, and continually prostrates personal liberty at the feet of every wretch who is unprincipled enough to trample upon it. I say, unprincipled; because a citizen, who has principle, will not wound it by using the authority of the law. In every state of the union-in every county of every state, there are shops opened, nay licensed, nay established by the law, at which its authority may be purchased, for a trifle, by the worst citizen, in order to infringe the personal liberty of the best. From the disgrace of these enormities against the rights 1 Ante, vol. 2, p. 231, et seq. of liberty, I gladly rescue the character and principles of the common law. The history of the several processes of capias, and orders and rules of commitment will show, when we come to it, that this part of our municipal law is of statute original; and that it was produced in the darkest and rudest, though its existence has continued in the most enlightened and the most refined times. With another part of these enormities against the rights of liberty, however, impartiality obliges me to charge the common law. Man is composed of a soul and of a body. To mental as well as to bodily freedom, he has a natural and an unquestionable right. The former was grossly violated by the common law. Witness the many overgrown titles, by which the volumes of the law are still distended: witness, in particular, the customs de modo decimandi, and the writs de excommunicato capiendo and de heretico comburendo. These parts I only mention; because from these parts we are happily relieved; they are parts of the common law, which did not suit those who emigrated to America: they were, therefore, left behind them. But, in some respects, private liberty is still the orphan neglected; in others, she is still the victim devoted by our municipal law. So inveterate, indeed, is the vice of the law in this particular, that it has infected its very language. The terms, which denote the diminution or the destruction of personal safety-homicide, wounding, battery, assaultare all prima facie understood in an unfavorable meaning; though they are sometimes excused, or justified, or even enjoined, as well as sometimes prohibited and punished by the law but to imprisoment, the idea of legal authority seems, in legal understanding, to be prima facie annexed: and when it speaks of the unauthorized kind, it is obliged to distinguish it by adding the epithets false or unlawful. But legislators should bear in their minds, and should 14 Bl. Com. 46. |