case out of the general rule. It is an averment of a conclusion
of law which is permitted to abridge the facts (positive and
negative) on which it is founded.

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,