ARSON, is house burning, and burn ing the house of another is felony. Cr. Law, Case 143. It must be maliciously and voluntarily, and an actual burning ; not putting fire only into a house, or any part of it, without burning ; but if part of the house be burnt, or if the fire do burn, and then go out of itself, it is felony. 2 Inst. 188. But it is not felony ko burn a house (unless done with a fraudulent in tent) of which the offender is in posses sion, by virtue of a written agreement, fbr a lease of three years. Cr. Law, 143. If any servant, through carelessness, shall fire any house or out-house, and be there of convicted, on the oath of one witness, before two justices, he shall forfeit one hundred pounds to the churchwardens of the parish where the fire shall happen, to be by them distributed to the sufferers; and, on non-payment thereof immediately on demand, the said justice shall commit him to some house of correction for eigh teen months, to be there kept to hard la bour.
The punishment of arson was death by our ancient Saxon laws. And in the reign of Edward 1. this sentence was cx ecutcd by a kind of " lex talionis," for the incendiaries were burnt to death, as they were also by the Gothic constitu tions. The statute 8 Hen. VI. c. 6, made the wilful burning of houses, under some special circumstances therein mentioned,. amount to the crime of high treason. But it was again reduced to felony, by the general acts of Edward VI. and Queen Mary ; and now the punishment of all capital felonies is uniform, namely, by hanging. The offence of arson was de nied the benefit of clergy by 31 Hen. VIII. c. 1; but that statute was repealed by 1 Edw. VI. c. 12 ; and arson was af- _ terwards held to be ousted of clergy, with respect to the principal offender, only by inference and deduction from the statute 4 and 5 P. and M. c. 4 ; which expressly denied it to the accessary be fore the flict : though even it is expressly denied to the principal, in all cases with in the statute, 9 Geo. 1. c. 22.
ART and Part, in the law of Scotland, is applied to an accomplice.
The facts inferring art and part need not be particularly laid in the libel or in dictment, for these general worees, as termsof stated signification, are sufficient. Yet these facts may be set forth, and it is proper so to do, if the prosecutor chuses to confide in the .court rather than in the jury.
Also, in the criminal letters, the per sons of the accomplices must be describ ed by proper names and designations.
One may be art and part, 1. By giving counsel to perpetrate without distinction whether the crime would have been com mitted without such council or not, this being what can never be perfectly known. But it is to be observed, that in the more atrocious crimes, he that gives counsel is equally punished as he that commits them ; but in the less atrocious, less se verely. And sometimes reasons of miti gation are taken from the age, the man lier of advising, &c. 2. By aid and assist tance, and that either previous or conco mitant, or subsequent to the commission , of the crime. The first rarely comes up to art and part, unless very particularly qualified ; the second commonly does, and it is easily known, if it does not ; the third never, and hardly deserves the name, unless it be in providing for the criminal's escape, But any of the three make art and part, if the perpetration was premeditated. 3. By a clear and explicit mandate to commit the crime, or to do somewhat unlawful In itself, which with great probability might produce it, if ex ecuted by the hand of the mandatory, and not that of another.