118 BULLETIN OF THE UNITED STATES FISH COMMISSION. 



Ill Smith V. State of Maryland (18 How., 71) the right of the State 

 of Maryland to the shell-fish and floating fish in Chesapeake Bay was 

 established as the sovereign right of the Commonwealth devolved upon 

 her from the crown at the llevolution, a right which she could control 

 without violation of the Constitution by such regulations as were needful 

 to secure this i:)ublic right without interfering with the navigation of 

 the waters, Mr. Justice Curtis delivering the unanimous opinion of the 

 court. (Accord Mumford v. Ward well, 6 Wall., 4365 Weber v. Harbor 

 Commissioners, 18 Id., GG.) 



In McCready v. Virginia (94 U. S. Eeports, 391) the unanimous judg- 

 ment of the court was delivered by Mr. Chief-Justice Waite, by which 

 the right of Virginia to use and api^ropriate the navigable waters of 

 Virginia for the benefit of her own people for the takiug and cultivation 

 of fish as a property right, and not as a privilege or immunity of citizeu- 

 shij), is established, though thereby the citizens of other States are ex- 

 cluded from the same rights. This right is one of property in the citi- 

 zens of Virginia, and not a privilege or immunity of citizenship. 



It is true the last decision, though in the opinion made to apply as 

 well to floating fish as to shell-fish, only applied in fact to shell-fish; but 

 your committee see no reason why the principle of these decisions should 

 not apply to both. 



Fish are/erfc naturce, and an absolute property in them can only be 

 asserted when restrained of their liberty. This, it may be said, is the 

 case with oysters, which, when phanted, have no capacity to move, and 

 distinguishes them from floating fish, which may move out of the reach 

 of the State in whose waters they may temporarily be. 



But upon this distinction of nature, no ground can be maintained for 

 changing the decision applicable to the one when the case of the other 

 is adjudicated. 



In the case of Eiggs v. The Earl of Lonsdale (1 Hurlst. & ISTorman, 

 923) it was decided in the Exchequer Chamber that the owner of land 

 had a right of property in game killed on his land by a stranger. The 

 fact that the game was/crte naturce did not take from the owner of the 

 land the property therein, even in favor of a stranger who hunted and 

 killed it there. 



This case was considered very fully in Blades v. Higgs (104 E. C. L. 

 R., 50), where the decision of Justice Willes at nisi prius, overruling 

 Eiggs V. Lonsdale, was reversed by the court of common pleas; and on 

 appeal to the Exchequer Chamber (106 E. C. L. R., 844) the court of 

 common i^leas was unanimously sustained ; and the judgment of the 

 Exchequer Chamber was affirmed by the House of Lords in S. C, 106 

 E. C. L. E., 866. The judgment in the House of Lords was sustained by 

 the high authority of Lord Chancellor Westbury, with Lords Crans- 

 worth and Chelmsford, both ex-chancellors, concurring. That case de- 

 cides clearly and distinctly that if A, a hunter, finds, kills, and carries 



