Ian’s Legal Fact of the Week 9/16/13: The Crime of Arson

Under the common law, originally there were only two felonies related to injuries to a home. The first was the criminal invasion of a home, or burglary (originally known as “house breach”), while the more serious of the two involved the criminal destruction of a home, or arson (derived from the Old French “arder”, meaning “to burn”). It was originally treated as a capital felony given not only the destruction of the victim’s personal property but the serious threat it accorded to public safety in a time when homes were typically made of wood and had thatched roofs. Until the 13th century it was punished by death by burning, although in the middle ages this was changed to hanging.

Arson was defined under the common law as consisting of the “malicious burning of the dwelling of another.” This was defined quite strictly: while “malice” in this context also included acts that created a substantial risk of fire rather than requiring intentionality, “dwelling” was limited to an occupied structure not possessed or occupied by the perpetrator. Thus, razing one’s one home historically did not constitute arson, nor did burning down a home that one rented.

Interestingly, until fairly recently there were no other criminal offences in English law related to damage to property– burning down a building that was a not a house or granary could be punishable by a civil action of trespass, but was not a felony. Over time various statutes filled in gaps, and were consolidated in the mid-ninetheenth century (Malicious Damage Act 1861, 24 & 25 Vict. c. 98). In 1971 the separate offenses were replaced by unlawfully destroying or damaging property (Criminal Damage Act 1971, c. 48).


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