I502. 



FORESTRY AND IRRIGATION. 



417 



the like. Timber stealing from public 

 lands, therefore, is considered b}' the law 

 not as something wrong in itself, but 

 merely as " malum prohibitum,'" that is, 

 something essentially innocent, which 

 becomes wrong only because it has been 

 expressly prohibited by statute. In ac- 

 cordance with this doctrine, criminal 

 statutes against timber stealing have 

 not usually made it a felon}-, punishable 

 by imprisonment, but a mere misde- 

 meanor, that can be atoned for by a fine, 

 like neglect to pay a dog license. 



There can be no reasonable doubt 

 that this attitude of the law is entirely 

 in accord with present public opinion. 

 The public do not look upon the tres- 

 passer as a criminal. It is doubtful 

 whether juries could be found to con- 

 vict, if their verdicts meant that the ac- 

 cused would go to the penitentiary like 

 a common thief. Even the fine imposed 

 on trespassers by state and federal laws 

 is often not insisted on by the public 

 authorities, who are satisfied if the of- 

 fender pays for the value of the stolen 

 goods. Indeed, Congress has expressly 

 sanctioned this practice by the law 

 of 1878 (i Suppl. Rev. Stat. U. S., 

 page 329), which provides that the ac- 

 cused may relie\'e himself from crimi- 

 nal (though not from civil ) liability b}' 

 purchasing the land on which the tim- 

 ber was cut at the rate of $2.50 per 

 acre. Compromises by which criminal 

 proceedings were dismissed on payment 

 of the costs of prosecution and the value 

 of the stolen timber have been upheld 

 by the Supreme Court (see Wells vs. 

 Nickles, 104 U. S., 444). State au- 

 thorities have acted on the same princi- 

 ples with regard to trespass on state 

 lands, and been satisfied if they recov- 

 ered the value of the stolen timber by 

 civil proceedings. 



Among foresters there will be no 

 disagreement on the proposition that 

 trespassing is pernicious to the welfare 

 of the public forests. The public looks 

 only at the value of the timber actually 

 taken, but the forester realizes that the 

 indirect injury by improper felling 

 methods is apt to be even more serious. 

 Trespassing must be stopped, if such a 

 thing is possible. The question now is : 

 how can it be done ? 



The first impulse in such matters is 

 often to cry for more severe criminal 

 laws and their strict enforcement. But 

 such means would surely fail. Evidence 

 sufficient to convict of crime is much 

 harder to get than evidence f astennig a 

 civil liability on the offenders. More- 

 over, criminal prosecutions would usu- 

 ally be brought against some poor 

 ' 'lumber j ack, ' ' or at most a superintend- 

 ent or foreman, while the real offender, 

 the millionaire director of the corpora- 

 tion, who reaped the benefit of the 

 crime, would go scot-free. Wrongs 

 cannot be cured by injustice. Suitable 

 police regulations, imposing reasonable 

 penalties on trespassers, are useful as 

 supplementar}' means ; but the real 

 remedy must be sought elsewhere. 



It was stated recently that public 

 sentiment in the United States had 

 from the beginning considered the pub- 

 lic lands as the fair spoils of any one 

 who chose to make use of them. Let 

 us consider what may have given rise 

 to this idea, which, by the wa\-, is not 

 peculiar to America, but found wher- 

 ever unoccupied public lands exist. The 

 forests and other resources of the public 

 lands were created b}- nature without 

 the aid of man. There was no sowing 

 or planting, no sort of care by human 

 hands or brains concerned in their pro- 

 duction. It must be expected that 

 people should consider themselves enti- 

 tled to free use of these free gifts of 

 the Creator. To the public conscious- 

 ness there never has been a right of 

 propert}' that was not based on labor. 

 True, ownership by the government is 

 in reality ownership by all ; but that is 

 too abstract a proposition to have much 

 force when it comes into conflict with 

 the desire for a more direct and per- 

 sonal possession of a share in that of 

 which each citizen is admitted to be a 

 part owner. 



Is it likely that public sentiment to- 

 ward timber trespas.ses would remain 

 what it is now if it were evident that 

 the government was bestowing some 

 labor and care upon its forests ? Public 

 opinion does not countenance the lar- 

 ceny of furniture from public buildings 

 or trespasses committed in a public park, 

 manifestl}' because it is felt that in these 



