COMPILATION OF PUBLIC TIMBER LAWS AND REGULATIONS AND DECISIONS THEREUNDER.

SECTION 2461, U. S. R. S.

(Act of March 2, 1831; 4 Stat., 472.)

If any person shall cut, or cause or procure to be cut, or aid, assist, or be employed in cutting, or shall wantonly destroy, or cause or procure to be wantonly destroyed, or aid, assist, or be employed in wantonly destroying any live-oak or red-cedar trees, or other timber standing, growing, or being on any lands of the United States, which, in pursuance of any law passed, or hereafter to be passed, have been reserved or purchased for the use of the United States, for supplying or furnishing therefrom timber for the Navy of the United States; or if any person shall remove, or cause or procure to be removed, or aid, or assist, or be employed in removing from any such lands which have been reserved or purchased, any live-oak or red-cedar trees, or other timber, unless duly authorized so to do, by order, in writing, of a competent officer, and for the use of the Navy of the United States; or if any person shall cut, or cause or procure to be cut, or aid, or assist, or be employed in cutting any live-oak or red-cedar trees, or other timber on, or shall remove, or cause or procure to be removed, or aid, or assist, or be employed in removing any live-oak or red-cedar trees or other timber, from any other lands of the United States, acquired, or hereafter to be acquired, with intent to export, dispose of, ușe, or employ the same in any manner whatsoever, other than for the use of the Navy of the United States; every such person shall pay a fine not less than triple the value of the trees or timber so cut, destroyed, or removed, and shall be imprisoned not exceeding twelve months. (See sec. 4751.)

TIMBER DEFINED.

UNITED STATES v. STORES AND ANOTHER.

Circuit court, southern district of Florida (14 Fed. Rep., 824). PENALTY-CUTTING TIMBER ON PUBLIC LANDS-"TIMBER" DEFINED.

The term "timber," as used in section 2461, Revised Statutes, does not apply alone to large trees fitted for house or ship building, but includes trees of any size, of a character or sort that may be used in any kind of manufacture or the construction of any article.

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PENALTY-PROSECUTION FOR-USE OF TREES NO JUSTIFICATION.

Using trees for firewood or burning into charcoal is no justification of the cutting.

SAME-HOMESTEAD ENTRY-NO EFFECT ON TITLE.

A homestead entry works no change in the title of lands which can prevent a prosecution under the said section.

UNITED STATES v. PETER DARTON.

Circuit court of the United States (6 McLean, 46).

Under the act of 1831, for the punishment of offenses in cutting and removing timber from the United States lands, the rule of proof is fixed by the statute. The Government must prove the cutting on the lands specified; the defendant may rebut the same by showing circumstances of ignorance as to the section lines or mistake.

The proof must correspond with the charge-cutting oak is not cutting pine timber. The proof of the act places the burden of explanation on the defendant. From an unlawful act an unlawful intent will be inferred.

A reasonable doubt is that which relates either to the character or the force of the testimony, and not a mere conjecture.

WILKINS, J.

The defendant was tried on an indictment charging him with removing and cutting timber on Government lands. The testimony showed that his father owned a mill seat and various tracts of land in the vicinage of the lands described in the indictment; that he resided at the mill, as the agent of his father who lived in Chicago, and was under instructions to avoid cutting on the Government lands; that a number of trees were cut by mistake across the lines, which were subsequently ascertained by actual survey, the defendant accompanying the surveyor, and showing the corner posts; and when he ascertained that he had cut over his lines he wrote to his father, and caused the quarter section on which the timber was cut to be entered at the Land Office, the certificate of which was given in evidence.

It was contended on the part of the Government—

First. That circumstances showing ignorance and mistake, if believed by the jury, constituted no defense.

Second. That a subsequent entry of the lands was no defense.

CHARGE OF THE COURT.

The prisoner at the bar, Peter Darton, whose true deliverance between him and the United States, you are obligated by your solemn oaths to make, according to the evidence given you in court, is charged with timber cutting and timber removing on and from the lands of the United States. The peculiar offense is created by and defined and described in the statutes of the United States.

The act of March 2, 1831, by its second section, constitutes three general classes of offenses, with their respective accessorial subdivisions.

The court will enumerate them in their order, that you may be better enabled to understand the particular offense now under consideration.

The first is the cutting and removing naval timber, specifically named red cedar and live oak, on lands specially selected and reserved by the Government, or aiding in such acts, or wantonly destroying on such lands, such naval timber.

By a previous enactment of Congress, the 1st of March, 1817, entitled "An act," making reservation of certain public lands "to supply timber for naval purposes," it was made the duty of the Secretary of the Navy, under the direction of the President of the United States, to cause such vacant and unappropriated public lands as produced the live-oak and red-cedar timbers to be explored and to select such tracts as, according to his judgment, were necessary to furnish the Navy of the United States a sufficient supply of naval timber.

It was then declared an offense, punishable by fine and imprisonment, for any person to cut any timber on such reserved tracts, without authority to do so by order of a competent officer.

At the same time it was declared criminal to cut or remove, or be employed in removing, the naval timber specified, with intent to dispose of the same for transportation, from the same description of the public lands.

Such, with other measures of a penal character, and with the avowed design of preserving a supply of timber for the United States Navy, were the salutary provisions of the statute of 1817.

But the Government was the proprietor of other lands, on which grew other timber, valuable in a great degree for other purposes than shipbuilding. Much of these lands were surveyed by and under national authority, and by various statutory enactments were opened to settlements, and offered at a fixed price, which could neither be augmented nor lessened by demand.

The policy of these statutes was twofold: First, the speedy settlement of the public domain, and thereby converting the wilderness into a garden; and the acquisition of a revenue from the public sales. In furtherance of both objects it was desirable that the lands should be so far protected from spoliation as to encourage immigration and induce settlement and sale.

Moreover, it was discovered that the protection afforded by the act of 1817 was not sufficiently extensive as to naval timber growing elsewhere than on the reservations; and the public lands in the North and Southwest, being repeatedly stripped of valuable house timber by lawless trespassers, the national Legislature was moved to amend and enlarge the provisions of the act of 1817 by those of 1831, embracing other lands than the reserved lands, naval timber on other lands, and other timber than naval timber on the unreserved public lands of the United States. Thus originated the other two classes as designated in the first section of the last act, namely:

Second. The offense of cutting naval timber on other lands, etc.

Third. The offense of cutting or removing, etc., other timber than

naval timber on other lands than naval lands, with the intent to export, dispose of, use, or employ the same in any manner whatsoever, other than for the use of the Navy of the United States.

This last comprehends the charges set forth in this indictment, which contains four counts.

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Before any application of the law to the facts of this case the court will briefly detain your attention on two prominent propositions involved: First. What must be proved by the Government in order to sustain the prosecution.

Second. What must be proved by the defendant, in case the Government has made a case to warrant a conviction, as matter of complete exculpation.

What must be proved by the Government. The rule of proof is fixed by the statute. The offense is cutting or removing timber from Government lands, with the evil intent described.

The fact then must be fully established by conclusive proof that timber of the kind described was cut by the defendant or by his procurement, and that the same was cut on the township and section and range specially set forth. Cutting other timber than that charged will not suffice. If pine trees or pine logs are charged, proof of oak or hickory will not do. And so also, if the cutting is on other lands the proof will not do. The defendant must be acquitted.

But, gentlemen, if the specific act of cutting or removing is proved, the guilty—the unlawful intent will be presumed. From an unlawful act an unlawful intent will be inferred. The statute declares the act criminal. Proof of the commission of the act raises the presumption of a guilty knowledge and a guilty intention.

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But this presumption may be rebutted by the evidence of circumstances showing a lawful intention. An evil intent is an essential ingredient of every crime. And the statute does not contemplate the punishment of the innocent. An unlawful act with a lawful intention is not criminal.

* * Understand this: The Government must prove two prominent facts—the cutting and the premises where cut. If such proof corresponds with the allegations of the indictment, and there is no explanatory proof rebutting an unlawful intention, your verdict must be guilty.

But otherwise, after such proof on the part of the Government, if the defendant clearly shows that a mistake was committed by the defendant himself, or by the hands under his direction, in regard to the lines of survey.

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Now, the United States, as a great land proprietor, is not inhibited the usual civil remedy allowed to and provided for all for any loss or injury sustained. The courts of justice are open to the civil actions of

the Government as to those of an individual.

But there is a vast

The injury So with the

difference in the rule of judgment between the civil action and the criminal verdict. In the former, the proof of the injury and its extent calls justly for the rendition of appropriate damages, and the plea of ignorance or mistake or an innocent intention availeth not. is done; the ignorant trespasser must repair the loss. Government. Its landed dominion is under the protection of the general law, independent of the statute of 1831. The action of trespass is an action to which the Government may resort, and under which it may recover damages to the full extent of the injury sustained.

And a conviction and punishment of a defendant for a trespass, under the act of 1831, would not protect, under a civil action, for the injury sustained. Neither would a judgment, on the latter remedy, be a sufficient plea of defense under the indictment.

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The jury found a verdict of guilty.

LIABILITY.

CRIMINAL LIABILITY.

The penal act of March 2, 1831, 4 Stat., 472 (section 2461, U. S. R. S.), provides "for the punishment of offenses committed in cutting, destroying, or removing live oak and other timber or trees preserved for naval purposes."

This act of March 2, 1831, was fully considered in the case of the United States v. Ephraim Briggs (9 Howard, 351), in which the Supreme Court decided that the said act authorized the prosecution and punishment of all trespassers on public lands by cutting timber, whether such timber was fit for naval purposes or not.

THE UNITED STATES v. EPHRAIM BRIGGS.

(9 Howard, 351.)

On the 2d of March, 1831, Congress passed an act (4 Stat., 472), entitled "An act to provide for the punishment of offences committed in cutting, destroying, or removing live-oak or other timber or trees reserved for naval purposes."

The act itself declares, that every person who shall remove, etc., any live-oak or redcedar trees or other timber, from any other lands of the United States, shall be punished by fine and imprisonment.

The title of the act would indicate that timber removed for naval purposes was meant to be protected by this mode, and none other. But the enacting clause is general, and therefore cutting and using of oak and hickory, or any other description of timber trees from the public lands, is indictable and punishable by fine and imprisonment.

See also decision in case of Forsyth v. United States (9 Howard, 571).