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11 Wm. & Mary L. Rev. 211 (1969-1970)
Reformation of Burglary

handle is hein.journals/wmlr11 and id is 225 raw text is: REFORMATION OF BURGLARY

At early common law, burglary was defined as the felony of break-
mg and entering the dwelling of another in the nighttime with the in-
tent to commit a felony therein. 1 This crime was strictly defined and
enforced according to the above six elements,2 and was established for
the protection of the habitation.8 This concept of the security of the
dwelling protected by the establishment of a harshly-pumshed felony,
is unique to the Anglo-Saxon system of law for no legal systems other
than derivatives of Anglo-Saxon origins have any substantive criminal
offense of the seriousness or definition of common law burglary 4 The
idea of such security of the habitation is said to have developed from
the notion that a man's home was his castle and that while there, he was
to be disturbed unlawfully only at the expense of great risk of death.5
Paralleling the development of burglary in the common law, the in-
choate offense of attempt also developed.6 This offense provided that
when an act amounted to the pursuit of the consummation of a specific
1. W CLARK &, J. MARSHALL, LAW o CRIMES 870 (6th ed. 1958); R. PERKINS,
CRMIINAL LAW 149 (1957) [hereinafter cited as PERKINS].
2. Note, Statutory Burglary, The Magic of Four Walls and A Roof, 100 U. PA.
L. REv. 411 (1951) [hereinafter cited as Statutory Burglary].
supra note 1.
4. Statutory Burglary, supra note 2, at 424.
5. Annor, 43 A.L.R.2d 831, 834 (1955) in which the author states:
It is evident that the offense of burglary at common law was considered one
aimed at the security of the habitation rather than against property. That
is to say, it was the circumstance of midnight terror aimed toward a man or
his family who were m rightful repose m the sanctuary of the home, that was
punished, and not the fact that the intended felony was unsuccessful. Such
attempted Immunity extended to a man's dwelling or mansion house has been
said to be attributable to the early common-law principle that a man's home
is his castle. The jealousy with which the law guarded against any infringe-
ment of this ancient right of peaceful habitation is best illustrated by the
severe penalties which at common law were assessed against a person con-
victed of burglary, even though the enterprise, except for the essential ele-
ments of breaking and entering a mansion house or dwelling house at night
with intent to commit a felony therein, was unsuccessful.
6. N. Y. PENAL LAW art. 140, Practice Commentary 332 (McKinney 1967) [hereinafter
cited as Practice Commentary].
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