Definition
The forcible separation, parting, disintegrating, or piercing of any solid substance. In criminal law, the term carries a specific technical meaning essential to the law of burglary and housebreaking:
1. Actual breaking: The physical tearing away, removal, or displacement of any part of a structure — including doors, windows, locks, latches, or other fastenings — by force, for the purpose of gaining unlawful entry with felonious intent.
2. Constructive breaking: Entry obtained not by physical force but by fraud, threats, or other means that the law treats as equivalent to force — for example, gaining admission by impersonation or misrepresentation.
3. Breaking out: Forcible exit from a structure following unlawful entry. Some authorities and jurisdictions extend the concept of breaking to cover this circumstance, recognizing that a person who breaks out of a dwelling after having entered feloniously may satisfy the breaking element of burglary.
At common law, breaking was an indispensable element of burglary. Without it, no matter how clearly the defendant had entered another's dwelling with felonious intent, the offense of burglary was not complete. The breaking requirement served to distinguish the completed crime from mere trespass or attempted entry.
Common Language
Modern common usage (Wiktionary): Present participle and gerund of break — the act of breaking something, or the state of being broken.
Historical common usage (Webster's 1913): The act of breaking in any sense; a fracture or rupture.
The ordinary sense of breaking encompasses any act of fracturing or separating a material object. The legal meaning is considerably more precise: it requires purposeful force applied to the protective fabric of a structure, animated by felonious intent. Minor contact with an already-open entrance — pushing a door ajar, for instance — may fail the legal test even though it plainly constitutes "breaking" in the everyday sense. The gap matters enormously when reading historical indictments or jury instructions.
Common Confusion
Breaking is frequently confused with entering, the companion element of burglary. The two are distinct. Breaking refers to the overcoming of the structural barrier; entering refers to the actual penetration of the interior (even partial penetration — such as inserting an arm through a broken window — may suffice). In modern statutory burglary, many jurisdictions have collapsed or eliminated the breaking requirement entirely, retaining only unlawful entry. A researcher reading historical materials must therefore take care not to assume that modern statutes track common law doctrine on this element.
Recognized Forms
/SUBTYPES
Actual breaking: Physical force applied to structural fastenings or components to gain entry.
Constructive breaking: Entry obtained through fraud or artifice, treated by law as equivalent to physical force.
Breaking out: Forcible exit from a structure by a person who entered with felonious intent; recognized by some authorities as satisfying the breaking element.
Why It Matters in Research
The breaking requirement is one of the most frequently litigated elements in historical burglary and housebreaking cases, and its contours shifted considerably between the seventeenth and twentieth centuries. Researchers working in nineteenth-century case law will encounter significant disagreement among courts about what physical acts were sufficient — whether opening an unlocked door, raising a partially open window sash, or merely pushing back an unfastened shutter satisfied the requirement. Rapalje & Lawrence's entry points to this contested landscape explicitly.
The distinction between actual and constructive breaking is essential when reading equity and criminal treatises side by side: courts did not uniformly agree on whether fraud-induced entry constituted breaking, and some jurisdictions never accepted constructive breaking as satisfying the common law standard.
Modern statutory reform is a major trap. Most American jurisdictions have replaced common law burglary with statutory offenses that require only unlawful entry — or define entry so broadly that breaking becomes irrelevant. A researcher who locates a modern statute defining burglary should not assume the historical breaking requirement applies. Conversely, a researcher analyzing nineteenth-century indictments must confirm that breaking was alleged and proven; failure to establish it was grounds for acquittal or reversal at common law.
The breaking-out variant generates particular complexity. Not all common law authorities recognized it, and whether it was included in an indictment could determine the outcome of an appeal. Burrill flags the doctrine; Black's 2nd edition explicitly acknowledges breaking out as a recognized form.
Historical Dictionary Support
The historical sources are in strong agreement on the core definition — forcible separation of a solid substance — but diverge on the margins. Black's (both editions) and Bouvier are closely aligned and offer the most complete treatment, covering both actual and constructive breaking and noting the specific types of fastenings (locks, latches, other securements) whose removal qualifies. Burrill adds useful granularity by referencing Blackstone (4 Bl. Com. 266) and Stephen's Commentaries, and notably includes picking a lock or opening it with a key within the definition of breaking — a point not all authorities accepted without qualification.
Rapalje & Lawrence's entry is notably narrower in its prose treatment but implicitly broader in scope, being one of the few sources to address breaking out — forcible exit — as a recognized aspect of the doctrine. That extension was not universally embraced and a researcher should treat its presence in an indictment or charge as jurisdiction-specific.
No historical source in the corpus gives sustained attention to constructive breaking beyond Bouvier's brief mention. The doctrine's fuller development appears in treatises and case law rather than dictionaries, meaning these sources underrepresent how contested the fraud-entry question was in practice.
Jurisdictional Note
Common law breaking doctrine was never uniform across American states, and statutory codification has made the variation more pronounced. Some states retain a recognizable breaking element; others have eliminated it in favor of "unlawful entry" or "without authority." English law retains distinct offenses (burglary, aggravated burglary) under the Theft Act 1968, which does not replicate common law breaking requirements. Researchers should verify governing statute before applying any historical definition.
Encyclopedia Cross-Reference
Breaking and Entering (The Law Mind Criminal Law Encyclopedia)