Arson: Legal Aspects

By the mid-eighteenth century, common law arson was well established as the malicious and willful burning of the house of another by day or by night (Coke, p. 66). The common law viewed arson, like burglary, as a crime against the security of habitation rather than a crime against property. A house was defined for both crimes as the dwelling house of the occupant, in addition to the buildings located within the curtilage. Curtilage meant the yard or space of ground near the dwelling house, contained in the same enclosure and used in connection with it by the household, and the parcel of buildings or structures contained therein. Barns were generally included in the curtilage. It was quite foreseeable that a fire in any building within the curtilage could spread to the dwelling and endanger the occupants. Thus, a sufficient threat to quiet possession occurred even if the actual dwelling place escaped harm.

Since arson protected habitation, the burning of an unoccupied house did not constitute arson: there could be no arson if the fire occurred before the first resident moved in, after the dwelling was vacated, or in a period between residents. On the other hand, a dwelling retained its occupied status during the temporary absence of the occupant; it was unnecessary that he be present in the dwelling at the time of the burning.

The use of the building determined its status. A permanency of dwelling was necessary. Burning a place where transients stayed, such as a hotel, did not constitute arson under the common law. Neither did the burning of institutions, such as jails or hospitals, unless someone also lived in the building as a permanent resident.

Since arson was viewed as a crime against the security of habitation, the building burned had to be that of another. It was not arson to burn the house one occupied, whether or not the occupant owned it, even if the burning threatened the lives of others in the house. The burning of one's own dwelling to collect insurance did not constitute common law arson. It was generally assumed in early England that one had the legal right to destroy his own property in any manner he chose.

Arson was legally regarded as a heinous and aggravated offense both because it threatened human life and the security of habitation and because it evidenced a moral recklessness and depravity in the perpetrator. Arson was thus a capital offense until more lenient statutes were enacted in the nineteenth century.

Although it was not common law arson to burn one's own house, it was a common law misdemeanor ("houseburning") if the burning was intentional and the house was situated in a city or town, or, if beyond those limits, was still so near other dwellings as to create danger to them. Any malicious destruction of, or damage to, the property of another not amounting to common law arson constituted a common law misdemeanor known as malicious mischief.

The common law required an actual burning or ignition of some part of the building, at least to the extent of charring the wood. A mere smoking, scorching, or discoloration of the wood was insufficient. The general rule was that a slight charring, no matter how small, was sufficient.

Since the common law required that the fire damage the structure, setting fire to personal property within the building would not constitute arson unless the fire spread to the building itself. An attempted burning did not constitute arson. Similarly, it was no crime under the common law to prepare a building for a fire.

Corpus delicti. To have established the corpus delicti of arson at common law, the proof must have shown that there had been a burning of a structure or property protected by law, and that the fire had resulted from the criminal act of some person. It also had to be shown that the defendant was the criminal agency. The common law presumed that all fires resulted from accident, negligence, or natural causes. Therefore, direct or circumstantial evidence that the fire was of incendiary origin and that the defendant was the guilty party was required.

The requisite mens rea consisted of a willful and malicious intent to burn. The word willful meant the arsonist must have started the fire intentionally. The requisite intent could be viewed as the general, unlawful purpose to damage or destroy certain property. While the intent could be inferred from the act, more than negligence had to be shown. In some cases negligent burnings could be punished as a lesser offense, such as negligently burning prairie land or timberland.

Malice was an essential element of common law arson, and had to be established independently of any showing of willfulness. Malice was generally construed as a desire to injure the victim of the unlawful act, and was readily inferred from the nature of the act or the circumstances surrounding it, so that liability generally resulted if the burning were intentional. Motive was not an element of arson, although motive was often used to infer intent, such as overinsuring the property. The existence of a motive may have helped establish the corpus delicti of arson by showing both that the fire was intentional in origin and that the defendant was culpable. Conversely, the absence of a motive may have made proof of the essential elements less persuasive.

Direct evidence of arson is frequently unavailable since the crime is ordinarily committed under the cover of darkness, clandestinely, and in a manner intended to divert suspicion. Thus, circumstantial evidence, and reasonable inferences based thereon, were generally used to establish the crime and the culprit.