546 CKUELTY AND MALICIOUS MISCHIEF. 



penal in the highest degree:' 4 Bl. Com. 243. Here we 

 have the direct testimony of this learned commentator in ac- 

 cordance with the principle we have before laid down, and 

 in conflict with many early decisions in this country. . 

 The absence of any reported cases of indictments for mali- 

 cious trespass in the English books anterior to the passage of 

 the several statutes hereafter referred to and the great fre- 

 quency of them soon afterwards, are both pregnant facts, fur- 

 nishing some evidence that at common law such acts were 

 not indictable, for we can hardly believe that mankind were 

 so much more depraved in the latter than in the former peri- 

 od, or that the rights of property were more clearly undei*- 

 stood or more conscientiously respected in the fifteenth and 

 sixteenth than in the seventeenth and eighteenth centuries. 

 In I Hale's P. C. 561, it is laid down that 'Burning of a frame 

 of a house (not a dwelling) or of a stack of corn was not 

 felony by the common law.' From the fact, too, that the 

 older writers on criminal law say nothing of such an ofifense 

 as malicious mischief, it would be inferred that anterior to the 

 statutes it was unknown and was not a fact of the ancient 

 common law of England. The first English statute on the 

 subject was not passed until the 22 Hen. VUL ... It can 

 hardly be claimed, therefore, with truth that these statutes 

 comprised any part of the common law at the time our ances- 

 tors came here, and were brought with them as such. . . . 

 It would seem, therefore, that all our decisions on this 

 subject (in States where' no statutes exist) should conform to 

 the English law anterior to the statutes above cited, and in 

 many States we find this to be the case." i^" 



The premises of this writer might be admitted without ac- 

 cepting in tflto his conclusion. If the common law is a liv- 

 ing organism, and not a mere fossil, it must be influenced 

 from within by the evolution in the sentiments of mankind 

 as well as from without by the moulding force of statutes. 

 It by no means follows that because, in ages when men were 



""7 Law. Repr. N. S. 88-g2. 



