Outside of murder, which cuts to the core of who we are as human beings, burglary is perhaps the ultimate criminal transgression in America. Burglary violates two strong American principles at the very same time: the protection of property and the right to privacy. It also brings with it a potential for violence, since confronting a burglar could bring bodily harm or even death to the victim.
Common law defines burglary as the breaking and entering of a dwelling house at night with the intent of committing a felony once inside. The “breaking in” actuality does not have to involve force. It can be as simple as opening an unlocked window or door, entering through a partially open window or door, or even using fraud or trickery to gain entrance. However, if a window was already sufficiently open to allow a person’s body to go through it, the entry technically can not be considered a break in.
Only part of the burglar’s body, or even part of an extension tool used by him or her, needs to cross into a house for it to be considered an entry. Some American statutes expanded the definition of burglary beyond simply entering a dwelling house to include all kinds of structures, such as storehouses, sheds, or chicken coops. Warehouses, shops, and even ships were often targets of burglars in early America, especially during the seventeenth century.
“Night” under common law is defined as “when a man’s face cannot be distinguished by the light of the sun,” although it can also be defined as the time between sunset and sunrise. The fact that burglaries occur at night elevates the seriousness of the crime. Inhabitants are much more likely to be present during the nighttime, so the potential for violence is greater. The thought that someone could be present in your house while you slept is also particularly unsettling. In contrast to burglary, breaking and entering a house with the intention of committing a felony during the day is called housebreaking.
Once a burglar breaks into a house, the offender does not need to carry out a felony within the dwelling for it to be considered a burglary; only the intention to commit a felony is needed. Whatever felony is committed inside the place of residence is its own crime, and it is prosecuted and punished as an offense separate from the burglary.
Burglary in the 17th Century
Burglary was not much of a concern in the early days of the American colonies, and so the laws governing its punishment were relatively mild. The Massachusetts Bay Colony, for example, simply stipulated that burglary should be “severely punished” and left the form of punishment up to the discretion of the judge.
As more people populated the colonies and filled the towns, burglary became a serious crime. In 1647, the Bay Colony reacted to this trend by formally codifying the punishment for burglary. First time offenders were to have a letter B branded on their foreheads, second time offenders would be severely whipped and branded, and a third offense would bring the death penalty.
In 1671, the Plymouth Colony followed the Bay Colony by making burglary a capital crime on the third conviction as well, although the law also stipulated that the court could show mercy and decide instead that the offender be “otherwise grievously punished.” When the Massachusetts Bay and Plymouth colonies were combined to create the Province of Massachusetts Bay in 1692, it basically adopted the Bay Colony’s set of punishments for burglary, although second time offenders could be whipped with up to 39 lashes and made to sit on the gallows for an hour.
In contrast to Massachusetts, Pennsylvania actually reduced their penalties for burglary over the course of the seventeenth century. Before the Lower Counties under the Duke of York were incorporated into Pennsylvania, burglary was punished much like it was in Massachusetts, with a branding on the forehead for the first offense and death for the third offense. After William Penn established the colony of Pennsylvania in 1682, he put in place the mildest criminal code in the American colonies. Crimes against property under Penn were generally punished by having the perpetrators pay a multiple of the value of the property, and murder was the only crime that could result in execution. On top of compensating the victim, burglars in Pennsylvania could also be punished by wearing a sign for a specified period of time.
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