Common Law Burglary

Fundamentals of Criminal Law by Adam J. McKee

Burglary, often depicted in movies as a masked person sneaking into a house at night, is more complex in legal terms. At its core, burglary involves unlawfully entering a building or structure with the intent to commit a crime inside. It’s not just about breaking into a home; it could be entering a store after hours or even slipping into an open garage to steal something. What makes it burglary is the combination of unauthorized entry and the intent to do something illegal, like theft or vandalism, once inside.

The Harm Burglary Causes

Laws against burglary aim to protect several societal interests. First and foremost is the safety and sanctity of one’s home or property. A burglary can leave victims feeling violated and unsafe in their own spaces. Beyond the potential physical harm, the emotional and psychological impact on victims can be profound and long-lasting.

Additionally, burglary often leads to financial loss and property damage. When someone breaks into a home or business, they may steal valuable items or cause damage in the process. This not only affects individuals but can also have broader economic repercussions, especially for small businesses.

Laws against burglary also uphold the principle of private property rights. They deter individuals from taking what isn’t theirs and violating the privacy of others. Furthermore, by criminalizing the intent to commit a crime once inside a property, these laws aim to prevent other serious offenses, such as assault or vandalism, from occurring.

Classification of Burglary

Burglary is generally classified as a felony in most legal codes, reflecting its seriousness. The exact classification and penalties can vary depending on factors such as the type of building entered, whether it was at night, and whether any occupants were present or any violence was used. Some jurisdictions differentiate between degrees of burglary, with higher degrees indicating more severe circumstances or intentions.

Burglary in Broader Criminal Categories

Burglary fits primarily into the category of crimes against property. It involves the unlawful intrusion into someone else’s space with the intent to commit a theft or felony. However, it can intersect with crimes against persons, especially if the burglary leads to an assault or if the burglar encounters someone during the act. While not a violent crime in itself, the potential for violence is often inherent in burglary situations.

Historical Perspective of Burglary

The concept of burglary has deep historical roots. Under common law, originally developed in England, burglary was defined as the breaking and entering of the dwelling of another at night with the intent to commit a felony therein. This definition was quite narrow, focusing on the protection of one’s home during the vulnerable nighttime hours.

William Blackstone, in his influential “Commentaries on the Laws of England,” described burglary as an offense against habitation, emphasizing the sanctity of one’s home and the increased vulnerability during the night. He noted the severity with which the law viewed the invasion of a person’s home, considering it a grave offense (Blackstone, 1765-1769).

Over time, the legal definition of burglary evolved. The requirement for the crime to occur at night was gradually removed, acknowledging that the harm of burglary does not depend on the time of day. Similarly, the definition expanded beyond dwellings to include other structures like shops, offices, and even vehicles in some jurisdictions.

The evolution of burglary laws reflects changing societal values and an increased understanding of the different forms that property crimes can take. Today, while the common law roots of burglary remain influential, statutory laws have broadened its scope to provide more comprehensive protection against unauthorized entry and the associated potential harms.

Common Law Deep Dive

Under the lens of common law, burglary was a carefully defined crime with specific elements that had to be met for a charge to be valid. This section explores each of these elements in detail, offering insight into how burglary was traditionally understood and prosecuted.

Breaking and Entering

At the heart of common law burglary was the notion of “breaking and entering.” Breaking could be literal, involving the physical force to gain entry, such as breaking a window or door. However, the legal understanding of breaking extended beyond this. It included even slight force, like pushing open a door or lifting a latch. Interestingly, if an entrance was already open, physically pushing it further open constituted breaking, but merely walking through an open entrance did not.

Entering was equally significant. It meant that some part of the burglar’s body or an instrument used to commit the crime had penetrated the space of the building. Even inserting a hand or tool through an open window met this criterion.


Another critical element was that the property in question had to be a dwelling, essentially a place where people lived. Common law placed immense importance on the sanctity and protection of one’s home. Hence, structures like barns or commercial buildings were not covered under the traditional definition of burglary. The idea was to safeguard the privacy and safety of the residential space, which was deemed more personal and sacred than other types of property.

At Night

The requirement that the crime occur at night is one of the more distinctive aspects of common law burglary. Nighttime was defined as the period between sunset and sunrise. This element stemmed from the belief that the cover of darkness increased the potential danger of the crime, both because the occupants were more likely to be asleep and less able to defend themselves, and because the darkness made the burglar harder to detect and apprehend.

Intent to Commit a Felony

Finally, at the core of burglary was the intent to commit a felony once inside the dwelling. This meant that even if no crime was ultimately committed after the breaking and entering, the intent alone sufficed for a burglary charge. Common felonies associated with burglary included theft, assault, and murder. The emphasis on intent highlights the preventive nature of the law — it sought to intervene at the point of the unlawful entry with the nefarious intent, rather than waiting for the subsequent crime to occur.

Evolution and Critique

While these elements provided a clear framework, they also led to criticisms and calls for reform. The requirement for the property to be a dwelling excluded many places deserving of protection. Similarly, the night-time requirement seemed arbitrary in an age of improved lighting and police forces. The narrowness of the common law definition led to instances where egregious acts of unlawful entry and intent went unpunished because they didn’t strictly meet the criteria of burglary.

As a result, statutory modifications gradually emerged, broadening the scope of the crime to include a wider array of structures and circumstances. This evolution reflects a shift towards a more inclusive and practical approach to addressing the real-world implications of unlawful entry and intended criminality.


Understanding the common law elements of burglary offers a window into historical perspectives on crime, property, and societal values. While the common law framework of burglary has been largely superseded by broader statutory definitions, its influence persists in how we conceptualize the protection of property and personal space against unlawful intrusion.


  • Blackstone, W. (1765-1769). Commentaries on the Laws of England.

File Created:  07/17/2018

Last Modified:  10/30/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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