288 AMERICAN FORESTRY 



power "properly extends to the pro- power more extensive than is necessary 



tection of public morals, public health, for the protection of the public morals, 



and public safety." Instead of recog- health, and safety. 



nizing the doctrine that private prop- That some states will adopt the 

 erty must yield to "general regulations theory of the case in Maine, while 

 which are necessary for the common others will adhere to the more con- 

 good and general welfare" as declared servative view, is unquestionable. The 

 in a Massachusetts case, the New right and duty of the highest court in 

 Hampshire court affirms the "constitu- each state to follow its precedents in 

 tional principle of equality and the res- construing this fundamental law cannot 

 ervation of private rights of the sub- he questioned or criticized by those who 

 ject, which are paramount to all gov- hold to different views. So long as the 

 ernmental authority." states have any rights remaining, the 

 These two states developed at the constitutional limitations which a state 

 same time, had the same common in- has established and recognizes for itself 

 terests, and were settled by the same must be respected. 



kind of people, and yet they have come Underlying the constitutional ground 



to an utterly diametrically opposed posi- is a broad principle of abstract right, 



tion on the question of the constitu- As has been stated by high authority, 



tional rights. The state of Massachu- "it is a familiar fact that the corporate 



setts, with her very notable and able conscience is ever inferior to the indi- 



courts, has come to the opinion that vicinal conscience that a body of men 



private rights must be understood to will commit as a joint act that which 



be subject to certain paramount rights every individual of them would shrink 



of the state ; while in New Hampshire, from did he feel personally responsible." 

 where those of us who still remain, be- A statute imposing some measure of 



lieve that all of the ability has not emi- restraint upon timber-land owner s,with- 



grated to Massachusetts, the position out ultimately depriving them of the 



taken by the supreme court is that bene ficial use' of their property would 



the private citizen the subject, as ,- r ,1 ,-, ,- , , 



..... . seem to satisfy the constitutional hm- 



thev call him in the opinion has cer- .,,'. r i -r 



tain rights which cannot be interfered ltat , lons 1 " most of r ur *****> and lf 



with by any governmental authority. I such regulation is found to be neces- 



am not here to define either position, sai T and useful m protecting the public 



but merely to point out the difficulty g od > it may be reasonable to expect, 



in dealing with a question among sev- i' 1 time, that in other states the con- 



eral states where these diverse views stitutional limitations will be enlarged 



are about equally divided, and with all to that end. 

 kinds of views between. In other words, I regard constitu- 



A more recent case in New Hamp- tional objections as merely temporary, 



shire (Bigelow vs. Whitcomb) denies if a means can be found fairly to work 



the right of the state to take without out the result desired. If the consti- 



compensation trees standing within tution is not broad enough to permit 



highways which are needed for shade an act which is proper and right and 



and ornament. That, by the way, is a fair, I am young enough to start in to 



difficulty which the New Hampshire So- have the constitution amended wher- 



ciety has cured by having the law ever it needs it. 

 amended. Looking at the definite question, it is 



There can be no doubt, in my own my present opinion that state regulation, 

 state, at least, that the constitution does so far as it covers the method of cut- 

 not permit confiscation of private prop- ting, treatment of tops, the matter of 

 erty or substantial interference with its fire lines, comes clearly within the rule 

 lawful use, under any theory of police that the state may establish regulations 



