Burglary, or nocturnal housebreaking, has always been considered a very heinous offence, seeing that it always occasions frightful alarm, and often leads to murder. Its malignity, also, is forcibly illustrated by considering how particular and tender a regard is paid by the law of England to the immunity of a man's house, which it styles "his castle," and will never suffer to be violated with impunity, agreeing therein with the sentiment of Cicero, "quid enim sanctius, quid onini religione munitius, quam domus unius cujusque civium." For this reason no outer doors can in general be broken open to execute any civil process, though in criminal cases the public safety supersedes the private immunity. Hence also, in part, arises the animad-version of the law upon eavesdroppers, nuisancers, and incendiaries; and to this principle it must be assigned that a man may assemble people together lawfully (at least if they do not exceed eleven) without danger of raising a riot, rout, or unlawful assembly, in order to protect and defend his house, which he is not permitted to do in any other case.
The definition of a burglar as given by Sir Edward Coke is, "he that by night breaketh and entereth into a mansion house with intent to commit a felony." There are four things which go to make up this definition. For (1) the time must be night and not day; for one who is attacked by night may lawfully kill his assailant, but not so in general if it be by day. Anciently the day was reckoned to commence with sunrising and to end at sunset, but the better opinion afterwards was that, if there were daylight or crepusculum enough begun or left to discern a man's face, it was no burglary, but this did not extend to moonlight, for then many midnight burglaries would have gone unpunished, and, besides, the malignity of the offence does not so properly arise from its being done in the dark, as at the dead of night when all creation is at rest. It has now been enacted by statute 24 and 25 Vict. c. 96 that, so far as regards the crime of burglary, the night shall be deemed to commence at nine o'clock in the evening and to conclude at six o'clock the next morning. (2) As to the place; it must be a mansion or dwelling-house, for no distant barn, warehouse or the like are under the same privileges nor looked upon as a man's castle or defence, nor is a breaking open of houses where no man resides, and which therefore, 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 has only left for a short season, animo revertendi, is the object of burglary, though no one be in it at the time of the fact committed. (3) The manner. A burglary requires (for the complete offence) both a breaking and an entry, but they need not be both done at once. There must in general be an actual breaking, for if a person leaves his doors and windows open it is his own folly and imprudence, and if a man enters thereby it is no burglary; yet, if he afterwards unlocks an inner door, it is so; but to enter by coming down a chimney is a burglary, for that is as much closed as the nature of the thing admits. 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, etc., are burglaries, though there be no actual breaking. (4) The intent. There must be a felonious intent to constitute the crime, otherwise it is only a trespass, but such intention need not be actually carried into execution; it is sufficient if it be demonstrated by some overt act, and therefore a breach and entry by night, with intent to commit a robbery, a murder, a rape, or any other felony is burglary, whether the thing be actually perpetrated or not. So much for the nature of burglary, which (when committed under certain circumstances of aggravation) was until recently a capital offence, but the punishment for it is now regulated by the above-mentioned statute passed in the year 1861, under which whoever shall be convicted of the crime of burglary shall be liable to penal servitude for life, or any term not less than five years, or to be imprisoned for any term not more than two years, with or without (according to the heinousness of the circumstances) hard labour and solitary confinement. The distinction above pointed out between burglary and house-breaking does not prevail in Scotland. There are State laws in the United States applicable to this crime.