THE PERIOD FROM 1878 TO 1891 71 



Free timber was granted in certain cases by the following proviso : 

 "Nothing herein contained shall prevent any miner or agriculturist 

 from clearing his land in the ordinary working of his mining claim or 

 preparing his farm for tillage or jrom taking the timber necessary 

 to support his improvements." Interpreting the phrase relating to 

 the clearing' of the land, the United States Circuit Court held that 

 the clearing must be incidental or subordinate to the cultivation,"® 

 but the agents of the Land Office, always lacking funds, and some- 

 times lacking honesty, were not likely to probe carefully into most 

 cases to determine whether the clearing was incidental to the mining 

 or cultivation, or whether it was the only object of the entry — a 

 difficult question under some circumstances. This section was certain 

 to result in fraud. 



Section 5 of the act provided relief for trespassers, those who had 

 not exported their booty from the United States being relieved from 

 prosecution on payment of $2.50 per acre for the timber. This pay- 

 ment, it is true, did not give them title to the land, but the privilege 

 of thus cutting timber worth often $5 or more, for a charge of some- 

 times less than one half its value seems generous enough, without the 

 additional gift of a patent to the lands. ^" 



Unnecessary to the accomplishment of the purposes of this act was 

 a final proviso directing that all moneys collected should be covered 

 into the treasury of the United States. Such a provision had already 

 been enacted on April 30.^^ 



Concerning the main provision of the act, the provision author- 

 izing the sale of timber lands, several limitations must be noted. In 



90 days during which there should be no law for the punishment of trespassers in 

 these states. It is true the Attorney-General decided that the general repeal clause 

 did not repeal the act of 1831, but in making this decision he seemed to doubt 

 whether he was following out the intentions which actuated Congress in passing the 

 act. (S. Doc. 396, Pt. 3, 245; 59 Cong. 2 sess.: Compilation of Public Timber Laws, 

 1903, 105, 106.) 



29 U. S. vs. Williams; 18 Fed. Rep., 477. 



30 Report, Sec. of Int., 1878, XV. This attempt on the part of Congress to le- 

 galize timber stealing was in some degree thwarted by the Federal courts, which 

 held that a party prosecuted was not discharged from liability by the payment 

 of $2.50 per acre, but was still liable to the United States for the value of the 

 timber cut. (U. S. vs. Scott; 39 Fed. Rep., 900. See also Cotton vs. U. S.; 11 How- 

 ard, 228: and U. S. vs. Cook; 19 Wallace, 591.) 



31 Cross Reference, p. 58. 



