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had been made to reserve in part gold, silver, lead, and other mineral deposits on the public land, but no mechanism existed for determining where such deposits were. In most of the Territories surveyors-general were usually designated by the Congress to make perfunctory surveys. The first such officer was appointed for the Northwest Territory in 1796, where he continued to function till shortly before the Civil War (1857); and by 1878 surveyors were listed as existing at some time or other in 25 of the public-land States.15 These surveys were concerned only with the location of the land according to the famous technique of straight lines, with no attention being paid to the different qualities of the land. That Congress was not entirely unmindful of tl different kinds of lands in the public domain appears from the Swamp Land Act of 1849 which transferred to the State of Louisiana overflowed lands "found unfit for cultivation" which Hibbard cites as "first legal recognition of a subclass" of the public lands. The failure to apply this broad standard led to flagrant frauds by which huge areas passed into State and private ownership.

Maj. J. W. Powell, Director of the United States Geological Survey, clearly pointed out the difficulty:

An examination of the laws

* will show that the classes of lands * # * are therein recognized, and in the administration of the laws relating to these lands those belonging to each specific class must be determined; but no adequate provision is made for securing an accurate classi fication, and to a large extent the laws are inoperative or practically void.

In his famous report on Lands of the Arid Regions of the United States, Major Powell recommended that the public domain be promptly classified into areas suitable for ordinary farming, irrigation farming, grazing, lumbering and mining. The recommendation went unheeded, "and without more vigorous enforcement than was given to most of the land laws would have accomplished little." 17 The organic act of the Geological Survey provided that it should direct "the classification of the public lands," but Director King stated in his first report in 1880 that he had "concluded that the intention of Congress was to begin a rigid scientific classification of the lands of the national domain," largely limited to geological uses. This interpretation, which was based on a fear lest the Geological Survey "supersede the machinery of the land office," prevailed until 1906, when the pressing needs of the Department of the Interior for detailed knowledge of the qualities of the public demain, in connection with President Theodore Roosevelt's policies of withdrawals, "led to a revival of this suspended function of the Geological Survey." By 1908 the increasing importance of this work was recognized in the organization of a land classification board. At first, the work was largely concentrated on the classification and valuation of coal lands, to which were shortly added the other fuel and mineral reservations. With the year 1906 there thus culminated a rather amazing period in American land policy when land administration had been carried on without knowledge of such elemental facts as what were the kinds and qualities of the lands.


Even before the solid establishment of the principle of land classification in 1906, both Congress and the Presidents had experimented with the converse of the traditional American land policy of quick settlement by withdrawing from entry specified portions of the public domain for particular purposes. Naval reserves of "live oak" date from 1799; in 1872 the Yellowstone was proclaimed the first national park; in 1888 water-reservoir sites were ordered "segregated"; in 1891 forest withdrawals were authorized. During the administra tion of President Theodore Roosevelt the forest reserves were increased from 45,000,000 to 150,000,000 acres, some of which were later restored to entry. In June 1906 he ordered the withdrawal of all valuable coal lands pending

18 T. H. Donaldson, The Public Domain (1884), p. 195.

16 Quoted in George O. Smith et al., The Classification of the Public Lands, Geological Survey Bulletin 537 (1913), p. 11. 17 Supplementary Land Planning Report, pt. VII op. cit., p. 61.

18 Smith, op. cit., p. 12.

classification by the Geological Survey. Oil lands were promptly withdrawn in August of 1907 upon recommendation of the Geological Survey. Phosphate lands were withdrawn in December 1908, and during the winter water power sites were also withdrawn, upon the recommendation of the Reclamation Service. Altogether Roosevelt withdrew from entry more than 234 million acres. Metalliferous mineral lands and public water reserves were withdrawn in 1912 and potash deposits in the following year.'


Land Surveys.-The pioneer effort of a State to obtain comprehensive knowledge of its land resources and problems may properly be credited to the Michigan Conservation Department, which in 1921 modestly began field work in cooperation with other State agencies (agricultural college, State university, and State academy of science) and the Federal Government (Geological Survey, Bureau of Plant Industry, Bureau of Fisheries, and the Weather Bureau). 20 The purpose of the land survey was to provide the basic facts upon which to formu late a comprehensive State policy for dealing with the problem of the rapid accumulation of tax-delinquent cut-over lands. The State had actually begun to bestir itself in 1916 when Governor Ferris in his retiring message to the legislature had recommended a land economic inventory. The legislature re sponded at the next session by creating a soil and economic survey, but the entry of the United States into the World War led to its postponement as an economy move. With the return to "normalcy," the earlier plans were revived, especially as reenforced by the establishment of an integrated Department of Conservation. A land-ownership map was prepared in 1923; lake mapping undertaken in 1925; stream recording in 1927; wildlife tally in 1928; a timber inventory in 1930. The phrase "land-use planning" was apparently empha sized for the first time in the 1931-32 report of the Department of Conservation, as particularly applied to three counties, but further activity was stifled by the economy cuts in the appropriations. 21

Other States became interested in what Michigan was doing; Massachusetts in Public Open Spaces in 1925, Wisconsin undertaking in 1928 an economic inventory closely patterned after the Michigan venture, and New York and Minnesota shortly followed. In 1931 Secretary Hyde of the Department of Agriculture called a National Conference on Land Útilization.22

Wildlife. The earliest governmental recognition of wildlife in America probably dates back to the hunting and fishing privileges granted in 1629 by the Dutch West India Co. to persons settling in the New Netherlands, which was typical of a whole series of provisions scattered through the various colonial charters. There was something mildly ridiculous in formally granting the rights to hunt and fish to persons settling in the midst of a world of plenty, with forests and all the wildlife that they contained apparently stretching westward in a never-ending procession. As in the case of forestry, the influence of mercantilism is early apparent, exemplified by the Connecticut prohibition of the exports of hides and skins in 1677.23 In other cases it appears that the

19 1 Stat. 622; 4 Stat. 242; 25 Stat. 527; 26 Stat. 1103; Smith, op. cit., pp. 35-40. "Beginning with act of 1796 and con. tinuing till 1867, Congress made special disposition of lands containing salt springs. At first they were to be reserved for Federal use, but with admission of Ohio, the precedent was set giving them to States in which they lay." Hibbard, op. cit., pp. 266-267.

20 The account has been gleaned from the Biennial Reports of the Michigan Department of Conservation for 1923-24, pp. 86-87; 1929-30, p. 75; and 1931-32, p. 59.

21 Mich. Acts 1917, no. 373. See P. S. Lovejoy, "Theory and Practice of Land Classification," Journal of Land and Public Utility Economics, I, pp. 160-175 (1925), and also Supplementary Land Planning Report, pt. VII, pp. 95-96.

22 In 1930 the U. S. Department of Agriculture issued a report on Land Utilization and the Farm Problem (by L. C. Gray and O. E. Baker), Misc. Pub. No. 97. Cf. Jesness and Nowell, A Program for Land Use in Northern Minnesota (1935). 23 This example is, curiously, of a type of game prohibition which is generally considered quite modern, and in fact almost 300 years passed before any other State attempted to reintroduce the technique of export prohibition (Minn. Laws 1871, c. 33). See generally T. S. Palmer, Chronology and Index of the More Important Events in American Game Protection, 1776-1911 (U. S. Biological Survey Bull. No. 41) upon which this section has heavily drawn. The writer also wishes to acknowledge his indebtedness to Dr. Palmer and to the officials of the Biological Survey who made available to him the card files of the Bureau.

colonists were getting frankly worried over the problem of accessibility of wildlife resources, particularly from the standpoint of food.

Deer were protected by a closed season as early as 1693 by Massachusetts; in 1708, New York extended the technique of a closed season to protect wild turkeys, heath hens, partridges, and quail; particular methods of hunting were condemned by Massachusetts in 1710; hunting was prohibited on Sundays in Tennessee in 1741.

Aside from the protection of deer, as shortly to be noted, this early legislation failed to contemplate enforcement other than through the ordinary processes of criminal law, which were highly decentralized and naturally quite crude and ineffective for their ordinary tasks. The "enactments doubtless were honored very much more in the breach than in the observance." 24 In 1739, however, the Massachusetts Assembly requested the towns to "chuse and appoint two meet persons" to "inform of all breaches" of the Deer Protection Act of 1693, and in particular "to take care that the violators thereof be duly prosecuted and punished." Two years after the first Massachusetts law, its sister Colony of New Hampshire provided for a similar official who was further empowered to "Inspect and search any suspected house." 25 According to present information, these examples remained the only cases of enforcement officials specially concerned with the administration of the game laws until the middle of the nineteenth century.

At the time of the Revolution, all but one of the Thirteen Original Colonies had enacted some kind of game legislation, but comparatively little progress was made during the next half century. Thus, it clearly appears that the period of great activity was between 1851 and 1885, and more particularly between 1851 and 1870.

The technical progress of game legislation during this period may be summarized as follows:

Closed seasons were established for snipe (1818), rabbits (1820), moose (1830), squirrels (1841), doves (1850), prairie chickens (1851), antelope and elk (1852), rail (1859), goats and sheep (1861), buffalo (1864), caribou (1870), introduced pheasants (1882), and European partridges (1898).

Specific hunting techniques were forbidden, as use of bloodhounds (1788), night hunting and use of big guns (1832), batteries (1839), camp hunting (1846), and spring shooting (1846), open water shooting (1852), snares (1854), ferrets (1860), batting doves (1869), hide hunting (1874), market hunting (1877), snow hunting (1887), jacking (1887), baited hooks (1897), explosivss (1897), poison (1897), decoys (1899), ring shooting (1899), ground hunting (1904), and bull hunting (1909).

Licenses were required in 1895. By the end of the nineteenth century, all the States had pro vided for closed seasons for some type of game, 41 forbade export, 28 forbade sale of protected game, 20 imposed bag limits, 15 required licenses of nonresidents and 5 of residents. This summary review of the progress of gaming legislation, in its cumulative effects, offers indeed an impressive showing of how America was slowly beginning to realize the inadequacy of the pioneer attitudes toward natural resources, and ultimately to relegate the frontier itself to the status of an historical phase in the development of the Nation. A clear example of this new emerging attitude toward natural resources, as adopted by the frontier country itself, was the enactment by the Idaho Territory in 1864 of a closed season for the buffalo, "the animal that had been called 'countless,' innumerable,' 'inexhaustible,' etc., in America for so long a time that its very name had almost come to connote infinity.'

* 26

24 Jenks Cameron, Biological Survey (1929), p. 8.

25 Massachusetts Bay Province, Acts and Resolves, II (1715-42), 989-990. In 1764 the title of these local officials was changed to "deer reeves" and their jurisdiction extended to moose as well as deer. Ibid., IV (1757–68), 683-684. N. H. Laws of the Province Period, II (1702-45), 585-586 (repealed June 20, 1792).

26 Cameron, op. cit., p. 10.

In most cases the legislation was adopted piecemeal by a variety of State legislatures meeting at various times in various States, paying little regard to the various configurations of their total products and effectiveness for the protection of wildlife resources. "The fish and the game laws as at present spread out in the pages of the statute books are too complextaken together, they are too much of a hodge-podge. They have been enacted and repealed in part or in whole, and re enacted and amended and reamended till the genus and species of the law's true intent disappear in the general rubbish.' Michigan State Commissioner of Fisheries, Second Report (1873-74), p. 41. Already at this time two States (New Jersey in 1846 and New York in 1871) had undertaken to reform their game legislation.

†163104 0-393

The early session laws throughout the entire period up to the Civil War were filled with particularistic wildlife legislation giving local communities the powers of police enforcement or authorizing them to adopt their own regulations. An examination of the New York session laws for the period 1801-50 shows a total of 127 such local laws for the preservation of fish but only 13 for game protection. Laws were enacted in each annual session of the assembly during this 50 year period, with the exception of 12 years, and in 1 year alone (1824) 18 such laws were enacted. By far the greatest portion of this fish legis lation was passed during the two decades from 1811 to 1830 (102 out of 127). Game, on the other hand, was not listed till 1833, when two laws were enacted for its protection.27

The colonial technique of the "deer-reeve" reappeared first in connection with the protection of fish and later of big game, on a purely local level. Thus, in 1809 the New Hampshire Legislature authorized the appointment of three "fish wardens," while in 1843 Maine provided for "fish wardens" in three counties and in 1852 authorized the Governor to appoint a 'moose warden" in seven counties. Other examples of specialized local agencies for wildlife enforcement include municipal fish wardens in New Hampshire and municipal game constables in New York: and Rhode Island.28


Much of the protection afforded wildlife depended upon private action of the "sporting interests" and the large estate owners, particularly in "Virginia and Maryland, and to a lesser extent in the Atlantic States to the south and north." 29 The typical protection of wildlife by these private interests was in terms of the law of trespass, but in several cases legislative intervention was secured to equip these interests in a rather extraordinary fashion with the prerogatives and techniques of the police power of the States. By a special act of 1813 New Jersey provided for the incorporation of the upper and middle townships of Cape May County, as a body politic and corporate in law" to "have and enjoy all the rights, powers, and privileges incident to a body politic and corporate," namely, to make bylaws for the protection of "fishing and fowling," within the area controlled by them as property owners, and enforce such bylaws by imposing "such penalties on the offenders against such bylaws and regulations, as they [i. e., present and future owners of fisheries and rights of fishing and fowling] shall deem expedient, not exceeding $12 for each offence, to be recovered with costs of suit, by and in the name of said corporations, respectively, by action of debt, in any court where the same may be cognizable.” 30

This unusual technique of endowing private associations with the authority and powers of the police state also existed in Pennsylvania, New Jersey, Delaware, and North and South Carolina but apparently has been supplanted today by State-supported enforcement agencies. Obviously, these private activities may have contributed to the cause of wildlife conservation, but the organization and method was susceptible of dangerous abuse.31

When the management of game was first recognized as a regular State function in 1878 by New Hampshire, it was put in a distinctly subordinate role. Fish commissions or boards had been regularly functioning for more than a decade and were reported in existence in half the States at the time that New Hampshire proposed to extend the powers of its already existing fish agency to cover game protection, without even changing the name of the agency. In 1879 in Dela

27 Computed from General Index to t! Laws of the State of New York, 1777-1850, under headings of "Fishing and fisheries" and "Game." Only one such law was listed for the period 1777-1800, namely in 1798.

28 N. H. Laws 1809, c. 30; Me. Laws 1858, c. 2127; N. Y. Laws 1871, c. 721, sec. 31; and R. I. Laws 1874, c. 391, sec. 7-9.

29 Wm. T. Hornaday, Wild Life Conservation (1914), pp. 202-04.

30 N. J. Private Acts of the 37th Assembly (1813), pp. 77-81.

1 Blooming Grove Park Association, Pa. Laws 1871, No. 399; Central Association, N. J. Laws 1874, c. 211; Game Protective Association, Dela. Laws 1879, c. 111; Audubon Society, $. C. Laws 1907, No. 315; N. C. Laws 1891, c. 487, 1895, c. 176, and 1899, c. 242.

Middle Western States.32 The pattern of the subsequent development of game administration tended toward one of the following: (a) Extension of the powers

83 N. H. Laws 1878, c. 176; Dela. Laws 1879, c. 111; Mich. Laws 1887, c. 28; Minn. Laws 1887, c. 142; Wisc. Laws, c. 456.

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ware appeared the first separate game agency (game protective association). In 1887 the technique of a full-time State warden emerged simultaneously in three

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