Justice Matters with Bryan Porter: English common law in Virginia’s code

Justice Matters with Bryan Porter: English common law in Virginia’s code
(Courtesy photo)

One of my favorite sections of the Virginia Code is §1-200, which states in pertinent part, that “the common law of England, insofar that it is not repugnant to the Bill of Rights and Constitution, shall continue in full force within” Virginia.

The term “common law” refers to the ancient English tradition of establishing the law not through the enactment of statutes but through the decisions of judges in individual cases, written down for posterity and honored as binding precedent by tribunals through the legal doctrine of “stare decisis,” or “let the decision stand.”

This means that in a few unusual situations, glimmers of centuries-old English common law continue to shine through the criminal statutes of the commonwealth. Perhaps the best illustration is with the venerable criminal offenses of robbery and burglary. As I will explain in a moment, the two crimes are distinct but are often conflated for one another.

Robbery is among the oldest of recognized crimes, first established as an offense against the crown in the 12th-century reign of Henry II Plantagenet. A felony for more than 800 years, it remains a common law crime in Virginia.

Section §18.2-58 says, “If any person commit robbery … he shall be guilty of a felony.” Unlike almost every other criminal statute, the definition of robbery is omitted from the statute. To define what robbery is, we must look to precedents.

Sir William Blackstone, circa 1770, relied on these precedents in his famous “Commentaries,” in which he laid down the stricture of the English common law in one written resource. Blackstone defined robbery as “the felonious and forcible taking, from the person of another, of goods or money of any value … by force or by putting [the victim] in fear.” The elements of robbery have remained largely unchanged and in force in Virginia hundreds of years after they were first settled upon.

Burglary, on the other hand, was defined by Blackstone as the “breaking and entering into a dwelling house during the nighttime, with the intent to commit a felony therein.” Blackstone specifically noted that a burglary must occur at night, “for in the daytime there is no burglary.”

Likewise, only a dwelling could be burglarized: other buildings not used for habitation could not be burgled. The fundamental elements of burglary remain unchanged and are reflected in §18.2-89 of the Code of Virginia.

As civilization evolved, however, the citizenry’s expectation of the protection of private property evolved as well, and soon society began deeming other offenses punishable as burglary. Because these new crimes required an expansion of common-law burglary through the enactment of statutes, they are collectively referred to as “statutory burglary.”

In Virginia, statutory burglary statutes have expanded the ambit of burglary to include, in some circumstances, daytime break-ins and entries into locations other than dwellings. Code §18.2-90, for example, criminalizes the nighttime break-in of any “building permanently affixed to realty, or any ship, vessel or river craft or any railroad car… .”

Fictional cops often confuse robbery and burglary, using the terms interchangeably. In reality, they are different and distinct crimes. To put it plainly, buildings are burgled and people are robbed. A criminal who breaks into a bank and steals money while it is closed and the tellers are home for the evening has committed a bank burglary – not a bank robbery.

Other vestiges of the common law may be located through careful scrutiny. Code §18.2-57 makes a “simple assault or an assault and battery” a criminal misdemeanor. The elements of those offenses, however, are supplied not by the Code but by the common law, which defines “assault and battery” as the “least touching of another’s person, willfully or in anger.”

Assault, succinctly, is an attempted battery. Thus, a person is guilty of assault and battery if they punch, kick, push or spit on another person in an angry manner. However, words alone, no matter how angry, are never sufficient to constitute a battery.

The writer is Commonwealth’s Attorney for Alexandria.