Arson

Arson (from Lat. ardere, to burn), a crime which has been described as the malicious and voluntary burning of the house of another (3 Co. Inst. 66). At common law in England it is an offence of the degree of felony. In the Roman civil law arson was punishable by death. It appears early in the history of English law, being known in ancient laws by the term of boernet. It is mentioned by Cnut as one of the bootless crimes, and under the Saxon laws was punishable by death. The sentence of death for arson was, says Stephen (Commentaries, iv. 89), in the reign of Edward I. executed by a kind of lex talionis, for the incendiaries were burnt to death; a punishment which was inflicted also under the Gothic institutions. Death continued to be the penalty at least down to the reign of King John, according to a reported case (Gloucester Pleas, pl. 216), but in course of time the penalty became that of other common-law felonies, death by the gallows. It is one of the earliest crimes in which the mens rea, or criminal intent, was taken special notice of. Bracton deals at length with the mala conscientia, which he says is necessary for this crime, and contrasts it with negligentia (f. 146 b), while in many early indictments malice aforethought (malitia praecogitata) appears. Arson was deprived of “benefit of clergy” under the Tudors, while an act of 8 Henry VI. c. 6 (1429) made the wilful burning of houses, under particular circumstances, high treason, but acts of 1 Ed. VI. c. 12 (1547) and 1 Mary (1553) reduced it to an ordinary felony. The English law concerning arson was consolidated by 7 & 8 Geo. IV. c. 30, which was repealed and re-enacted by the Malicious Damage Act 1861.

The common-law offence of arson (which has been greatly enlarged by the act of 1861) required some part of the house to be actually burnt; neither a bare intention nor even an actual attempt by putting fire in or towards it will constitute the offence, if no part was actually burnt, but the burning of any part, however trifling, is sufficient, and the offence is complete even if the fire is put out or goes out of itself. The burning must be malicious and wilful, otherwise it is only a trespass. If a man by wilfully setting fire to his own house burn the house of his neighbour also, it will be a felony, even though the primary intention of the party was to burn his own house only. The word house, in the definition of the offence at common law, extends not only to dwelling-houses, “but to all out-houses which are parcel thereof, though not adjoining thereto.” Barns with corn and hay in them, though distant from a house, are within the definition.

The different varieties of the offence are specified in the Malicious Damage Act 1861. The following crimes are thereby made felonies: (1) setting fire to any church, chapel, meeting-house or other place of divine worship; (2) setting fire to a dwelling-house, any person being therein; (3) setting fire to a house, out-house, manufactory, farm-building, &c., with intent to impose and defraud any person; (4) setting fire to buildings appertaining to any railway, port, dock or harbour; or (5) setting fire to any public building. In these cases the act provides that the person convicted shall be liable, at the discretion of the court, to be kept in penal servitude for life, or for any term not less than three years (altered to five years by the Penal Servitude Acts Amendment Act 1864), or to be imprisoned for any time not exceeding two years, with or without hard labour, and, if a male under sixteen years of age, with or without whipping. Setting fire to other buildings, and setting fire to goods in buildings under such circumstances that, if the building were thereby set fire to, the offence would amount to felony, are subject to the punishments last enumerated, with this exception that the period of penal servitude is limited to fourteen years. The attempt to set fire to any building, or any matter or thing not enumerated above, is punishable as a felony. Russell says (Crimes, p. 1781) that the term building is no doubt very indefinite, but it was used in 9 & 10 Vict. c. 25, s. 2; and it was thought much better to adopt this term and leave it to be interpreted as each case might arise, than to attempt to define; as any such attempt would probably have failed in producing any expression more certain than the term “building” itself. In R. v. Manning, 1872 (L.R. 1 C.C.R. 338), it was held that an unfinished house was a building within the meaning of the act. The setting fire to crops of hay, grass, corn, &c., is punishable by penal servitude for any period not exceeding fourteen years, but setting fire to stacks of the same, or any cultivated vegetable produce, or to peat, coals, &c., is regarded as a more serious offence, and the penal servitude may be for life. For the attempt to commit the last two offences penal servitude is limited to seven years. Setting fire to mines of coal, anthracite or other mineral fuel is visited with the full measure of penalty, and in the case of an attempt the penal servitude is limited to fourteen years. By the Dockyards, &c., Protection Act 1772 it is a felony punishable by death wilfully and maliciously to set fire to any of His Majesty’s ships or vessels of war, or any of His Majesty’s arsenals, magazines, dockyards, rope-yards, victualling offices or buildings therein, or any timber, material, stores or ammunition of war therein or in any part of His Majesty’s dominions. If the person guilty of the offence is a person subject to naval discipline, he is triable by court-martial, and if found guilty, a sentence of capital punishment may be passed. The Malicious Damage Act 1861, s. 43, also includes as a felony the setting fire to any ship or vessel, with intent to prejudice any owner or part owner of the vessel, or of any goods on the same, or any person who has underwritten any policy of insurance on the vessel, or upon any goods on board the same.

In Scotland the offence equivalent to arson in England is known by the more expressive name of fire-raising. The crime was punishable capitally by old consuetudinary law, but it is now no longer capital, and may be tried in the sheriff court (50 & 51 Vict. c. 35, s. 56). Formerly the public prosecutor had the privilege of declining to demand capital punishment, and he invariably did so. Wilful fire-raising, which is the most heinous form of the crime, requires the raising of fire, without any lawful object, but with the deliberate intention of destroying certain premises or things, whether directly by the application of fire thereto, or indirectly by its application to something contained in or forming part of or communicating with them; also the intention to destroy premises or things of a certain description (much as mentioned above); and such premises or things must be the property of another than the accused. Wicked, culpable and reckless fire-raising differs from wilful fire-raising in that the fire is raised without the deliberate intention of destroying premises or things, but while the accused was engaged in some unlawful act, or while he was in such a state of passion, excitement or recklessness as not to care what results might follow from his acts.

United States.—The same general principles apply to this crime in American law. In some states by statute the intent to injure or defraud must be shown, e.g. when the property is insured. In New York one who wilfully burns property (including a vessel or its cargo) with intent to defraud or prejudice the insurer thereof, though the offence of arson is not committed, is punishable by imprisonment for not more than five years (N.Y. Pen. Code, ss. 575, 578). There must be an intent to destroy the building (ibid. s. 490; California Code, s. 447). An agreement to commit arson is conspiracy (ibid. s. 171). Killing a person in committing the crime of arson is murder in the first degree (ibid. s. 183); this is so in California, even where the crime is merely an attempt to commit arson (Cal. Pen. Code, s. 189). Explosion of a house by gunpowder or dynamite is arson (Texas Pen. Code, art. 761), but a charge of arson by “burning” will not be sustained by proof of exploding by dynamite, even though part of the building is burnt by the explosion (Landers v. State [Tex.], 47 S.W. 1008).

Authorities.—W.S. Holdsworth, History of English Law, vol. iii.; Pollock and Maitland, History of English Law; Stephen, History of Criminal Law, vol. iii.; Stephen, Commentaries; Russell on Crimes.

* * *