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.
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