1902. 



FORESTRY AND IRRIGATION. 



471 



Instead, it attributes the spoliation of 

 our public timber lands to a lax appre- 

 ciation, on the part of both our law- 

 makers and the public in general, of the 

 fact that the act should be regarded as 

 constituting a crime. 



Several of the statements made in this 

 coiniection are remarkable for present- 

 ing precisely the reverse of the facts. 

 The following is in evidence : 



" From the begiiniing the legal prin- 

 ciple has been upheld and I do not at 

 all claim that it wa<^ a wrong or unwise 

 principle in itself that the unoccupied 

 public lands are subject to utilization b}^ 

 whosoever chooses, unless there is a 

 specific statute to regulate or prohibit 

 such use This doctrine was reiterated 

 but a few years ago by the Supreme 

 Court of North Dakota, in the case of 

 Matthews vs. The Great Northern Rail- 

 way Company (72 N. W. Rep., 1085), 

 where it is held that there is an implied 

 license to the public to go on the un- 

 appropriated lands of the United States, 

 pasture cattle thereon, make and dis- 

 pose of hay, cut and remove timber and 

 the like. Timber stealing from public 

 lands, therefore, is considered b}' the 

 law not as something wrong in itself, 

 but merely as ' vialicm prohibiiicin ' 

 that is, something essentialh' innocent, 

 which becomes wrong only because it 

 has been expressly prohibited by stat- 

 ute." 



The specious argument here at- 

 tempted, to the effect that the attitude 

 of the government in respect to timber 

 on public lands implies a license to the 

 public to go upon unappropriated public 

 lands and remove the timber therefrom, 

 was considered and disposed of by the 

 United States Supreme Court in consid- 

 ering the case of United vStates vs. Mock 

 (149U. S , 273), in which Justice Brewer 

 ruled : 



" Whatever propriet}' there might be 

 in such a reference in a case in which it 

 appeared that the defendant had simply 

 cut timber for his own use, or the im- 

 provement of his own land, or develop- 

 ment of his own mine (and in respect 

 to that matter, as it is not before us, we 

 express no opinion), there certainly was 

 none in suggesting that the attitude of 

 the government upheld or countenanced 



a party in going into the business of 

 cutting and carrying off the timber from 

 government land, manufacturing it into 

 lumber, and selling it for a profit ; and 

 that was this case. . . . There is 

 nothing in the legislation of Congress 

 or the history of the government which 

 carries witli it an approval of such ap- 

 propriations of government propertv as 

 that." 



The ruling of .so high a tribunal would 

 seem to have disposed of the argument 

 finall3^ and since it is a most mischievous 

 one, it becomes a serious matter to have 

 it brought forward again, to screen of- 

 fenses, by such an organ as Fore.stry 

 AND Irrigation. A correction would 

 seem to be due in the interest of the 



magazine. 



A further misapprehension results 

 from the following statement in the 

 above extract : 



" In accordance with this doctrine, 

 criminal statutes against timber stealing 

 have not usually made it a felony, pun- 

 ishable by imprisonment, but a mere 

 misdemeanor, that can be atoned for b}' a 

 fine, like neglect to pay a dog license. 



" There can be no reasonable doubt 

 that this attitnde of the law is entirely 

 in accord with present public opinion. 

 The public do not look upon the tres- 

 passer as a criminal." 



The exact contrary is true in respect 

 to the " attitude of the la\v " on this 

 point. As early in the history of the 

 country as the year 1S31 Congress 

 passed an act for the protection of timber 

 on the public lands, which was an ex- 

 pansion of a yet earlier act in 18 17, in 

 which it made the cutting or removing 

 of such timber for any purpose what- 

 soever, other than for the use of the 

 Navy of the United States, a felony by 

 prescribing that "every such person 

 shall pay a fine not less than triple the 

 value of the trees or timber so cut, de- 

 stroyed, or removed, and shall be im- 

 prisoned not exceeding twelve months. ' ' 

 (See section 2461, U. S. Revised Stat- 

 utes.) 



This law remains upon the statute 

 books, and from the date of its passage 

 to the present time it has constituted 

 the principal penal statute upon which 

 the government has had to rel)^ in its 



