CHAPTER XVI.

OF WILFUL FIRE-RAISING, AND ATTEMPT TO COMMIT THAT CRIME.

By the laws of all countries, wilful fire-raising is considered as a crime of the most atrocious nature, both from the malignant spirit from which it proceeds, and the disastrous consequences with which it is attended. It is in Scotland numbered among the pleas of the Crown, which, on account of their importance and difficulty, can be tried only in the Court of Justiciary.

1. It is essential to the crime of fire-raising, that some part of the tenement set on fire should have been actually ignited; but, if this has been done, it is immaterial how small a portion that may be, or for how short a time the flames may have continued.

Whatever opinion may be formed of the guilt of the offender, it is fixed law, that the complete and capital crime of wilful fire-raising is not committed, unless some part of the subject set on fire has actually been consumed. If, therefore, the matches only have been kindled, and tossed among the corn, or in at the window, or into the stack-yard, or upon the roof of the house; still, if the purpose has failed, and no actual burning has taken place, it is not wilful fire-raising, but attempt at wilful fire-raising, which has been committed.'. Accordingly, in the case of Barbara Phinnick, July 8. 1670, who, being left alone in her master's house, had torn the bed-quilt, and placed it under the bed, with a lighted candle stuck into its middle, and then left the house, and locked the door, evidently with intent to destroy the house; but, owing to the bed-tick being of leather, the quilt was not quite consumed, and the floor was

1 Hume, i. 127; Burnett, 220

only beginning to be touched, no sentence, followed on the verdict establishing these facts. She was clearly guilty of the attempt; but that was not the crime laid in the indictment. To constitute, however, the capital offence, it is necessary that the thing ignited be some part of the house, or of the fixtures which properly form part of it, as shelves, thatch, floors, joists, doors, windows, or the like; for the burning any of the effects within it, is an inferior offençe, punishable only with an arbitrary pain.2

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But, while this is clear on the one hand, it is equally well settled on the other, that the offence is completed if the subject set on fire has once begun to burn, for how short a period, or in how small a degree soever. The fire-raiser shall be involved in the capital pains, though no stack in the farm-yard be consumed, or no chamber in the tenement be destroyed, if the fire has once laid hold of, or been raised in the premises, so as to occasion alarm for their safety, and put them in danger of being consumed. Accordingly, in the case of the Frasers, 7th November 1720, the Court found "their having wilfully set fire to the barn, or corns in the barn-yard libelled, whereby the said corns, or any part thereof, were burnt or consumed, relevant to infer the pain of death.”5 So also in the case of Robert Allan, Glasgow, April 1756, the libel was found relevant to infer the pain of death, though the libel set forth that the fire was extinguished before it had proceeded far. On 28th July 1819, a libel was found relevant against Aaron Bramwell, which charged wilful fire-raising, in respect he had wilfully put a candle in a small closet, which was afterwards locked up, and that "the said fire took effect, and communicated to the said counting-house, and consumed great part of the wood work of the said closet, or safe, and part of the floor of the said counting-room. Lastly, in the case of William Sutherland, 15th March 1825, a libel was raised against the pannel, charging him with having set fire to the shop by putting in combustibles whereby the "said fire did consume the floor of the said shop, or parts thereof." An objection to the citation prevented the case being tried; but the opinion of the Court was expressed on a former libel in the same case, 14th February 1825, that if the fire had once fastened on the floor of 7 Hume, i. 127.-2 Burnett, 220.—3 Burnett, 220; Hume, i. 127.—1 Hume, i. 127.— Ibid.—6 Burnett, 220.—7 Hume, i. 127.

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the house, and consumed any part, though small, of the wood, the capital' crime was committed. Indeed, in the case of Margaret Nicolson, August 16, 1711, who was charged with setting fire to a thatched roof of her master's, the pannel's life was only saved by a restriction of the libel, though the fire was almost immediately discovered and extinguished.2

2.

If any articles of furniture within a house are set on fire, but it has not spread to any of the fixtures of the building, the crime of attempt at fire-raising only has been committed. Accordingly, in the case of William Douglas, 28th May 1827, the indictment charged the crime of attempt at wilful fire-raising, and supported that charge in the minor, by a statement that the pannel had set fire to a chest of drawers and bureau, with intent to consume the house; that the drawers and bureau were in great part consumed, and the flames beginning to communicate to the wood-work of the house, when they were discovered and extinguished. This libel was found relevant, thereby proving the sense of the Court that this species facti amounted to the minor offence of attempt to commit the capital crime. The pannel was convicted; but, being proved insane at the time, he was ordered to be confined for life.3

12. The rule in regard to the tenements which may be the subject of wilful fire-raising, is the same with that in regard to those on which housebreaking may be committed, and embraces every subject, whether dwelling-house, shop, barn, or out-house, communicating with, or forming part of, the premises.

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The fire may not be communicated to a house or shop, strictly speaking, but to some outhouse or building connected with them; and an important question for the pannel may arise as to the buildings by the ignition of which the capital crime is committed. Now, on this subject, the rule seems to be, that wilful fire-raising is committed if a building is set on fire which communicates with, and forms part of, the premises of either a shop or dwelling-house, though forming no part of such a tenement itself. According to this rule, it is as much capital to set on fire a barn, shed, stable, byre, cart-house, or coach-house, as

1 Unreported. Hume, i. 128.-3 Ibid.

a dwelling-house or shop, provided the inferior species of building thus put in flames communicates with, or is so situated as seriously to endanger either a house, shop, or stack of corns. Thus on 31st July 1806, Janet Hamilton and James Campbell had sentence of death for wilful fire-raising, on a libel which related that they had set on fire a cart-house adjoining a dwelling-house, whereby the cart-house, stable, byre, and dwelling-house were consumed. At Ayr, September 1817, Margaret Crossan had sentence of death for setting on fire a barn, whereby a stable, byre, and barn-yard were partly destroyed. In the case of Alexander Perth, April 1801, a boy was convicted of wilful fire-raising, for setting fire to a lint-shade; and, in the case of Margaret Macinnon, Inverness, September 1787, the like crime was held to have been committed by setting fire to a small storeroom belonging to a ship-carpenter.3

The law of England is the same. Arson with them is the wilful burning of the house of another; but, under the word house, they include all outhouses which are parcel thereof, as they say, though not adjoining thereto, or under the same roof.1 And, at common law (for the rule was altered as to burglary, by 7th and 8th Geo IV. c. 29, § 13), they hold all buildings to be parcel of a house which form part of its premises, though not, strictly speaking, connected, as outhouses, warehouses, barns, stable, cow-houses, and dairies.5

But there seems to be no authority, at least in the Scotch law, for holding that it is wilful fire-raising to set on fire an outhouse or byre at a distance from, and nowise endangering, any shop or dwelling-house; as, for example, a milk-house in the corner of a field, a dovecot in an orchard, or the like. That such an offence is punishable with high arbitrary pains cannot admit of a doubt; but there seems good reason to distinguish it from the terrible offence of burning buildings, whereby the persons and most valuable property of the lieges may be placed in imminent danger.5

3. The fire must have been kindled wilfully, and not by negligence, how gross soever; but, if this be the case, it matters not how circuitous may have been the mode of operation selected, or though the injury intended to have

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Hume, i. 132.-2 Ibid. i. 129.-3 Burnett, 221.-4 Blackst. iv. 221; Hale, i. 570; Russell, ii. 489.--5 Hale, i. 558; Russell, ii. 14.

been done was not the actual burning of a house, but some inferior mischief.

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If fire be kindled recklessly, or from misgovernment, as it is called in our old statute, 1426, c. 75, the crime is not wilful fire-raising, but an inferior delinquence, punishable by fine or imprisonment.1 But, if the fire has been intentionally applied, and applied in such a way, or to such a place, as to spread to a house, or such a building as law considers as equivalent to a house, the crime is committed, though the flame originally was kindled at a distance. To set fire to any thing contiguous to a house, with the design of the flames communicating to it, and it is thereby burnt, is wilful fire-raising. Thus if one discharge a gun at the thatched roof of a dwelling-house, with intent to consume the building, and the flames take effect, it is fire-raising. Whether the fire be raised by one person, or, as was determined in the case of William Spencer, December 13. 1784, by a mob, whether he apply the torch by his own hands or by those of another, whom he has counselled or equipped for the deed; whether he apply it directly to the tenement meant to be destroyed, or to something contained in or nearly connected with it, so that the one being on fire the other is likely to kindle, the law is the same. Accordingly, in the case of James Campbell and Janet Hamilton, 31st July 1806, the pannels were convicted of wilful fire-raising for setting fire to a cart-house adjoining a dwelling, whereby both were consumed. In like manner, if one kindle a stack of fuel contiguous to a farm-yard, and the flames spread to the cornstacks, which are consumed, without doubt the capital crime is committed. Or, if the flames be applied to an article of furniture in a house, with the design of consuming the building, and the flames spreading from the furniture fasten on the wood-work of the dwelling, the rule is the same. So it was found in the case of James Douglas, August 10. 1682, who, having broken into a writer's chamber, and stolen some articles, to conceal the depredation, wilfully placed a lighted candle among the papers in a writing-desk, whereby the house was set on fire and burned; and, in the case of Margaret Tallasdale or Anderson, 22d May 1826, who was charged with ha

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1 Hume, i. 128.—2 Ibid. i. 129.-3 Burnett, 220.--1 Hume, i. 129.—5 Ibid. 6 Ibid. i. 130.- Ibid.

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