When a statute punishes the “wilfully and maliciously” injuring another’s property, it is arguable, if not clear, that something more is meant.  The presumption that the second word was not added without some meaning is seconded by the unreasonableness of making every wilful trespass criminal. 1 If this reasoning prevails, maliciously is here used in its popular sense, and imports that the motive for the defendant’s act was a wish to harm the owner of the property, or the thing itself, if living, as an end, and for the sake of the harm.  Malice in this sense has nothing in common with the malice of murder.

Statutory law need not profess to be consistent with itself, or with the theory adopted by judicial decisions.  Hence there is strictly no need to reconcile such a statute with the principles which have been explained.  But there is no inconsistency.  Although punishment must be confined to compelling external conformity to a rule of conduct, so far that it can always be avoided by avoiding or doing certain acts as required, with whatever intent or for whatever motive, still the prohibited conduct may not be hurtful unless it is accompanied by a particular state of feeling.

Common disputes about property are satisfactorily settled by compensation.  But every one knows that sometimes secret harm is done by neighbor to neighbor out of [64] pure malice and spite.  The damage can be paid for, but the malignity calls for revenge, and the difficulty of detecting the authors of such wrongs, which are always done secretly, affords a ground for punishment, even if revenge is thought insufficient.

How far the law will go in this direction it is hard to say.  The crime of arson is defined to be the malicious and wilful burning of the house of another man, and is generally discussed in close connection with malicious mischief.  It has been thought that the burning was not malicious where a prisoner set fire to his prison, not from a desire to consume the building, but solely to effect his escape.  But it seems to be the better opinion that this is arson, 1 in which case an intentional burning is malicious within the meaning of the rule.  When we remember that arson was the subject of one of the old appeals which take us far back into the early law, 2 we may readily understand that only intentional burnings were redressed in that way. 3 The appeal of arson was brother to the appeal de pace et plagis.  As the latter was founded on a warlike assault, the former supposed a house-firing for robbery or revenge, 4 such as that by which Njal perished in the Icelandic Saga.  But this crime seems to have had the same history as others.  As soon as intent is admitted to be sufficient, the law is on the high-road to an external standard.  A man who intentionally sets fire to his own house, which is so near to other houses that the fire will manifestly endanger them, is guilty of arson if one of the other houses is burned