Bird - Lore 



THE McLEAN LAW BEFORE THE SUPREME COURT 



The constitutionality of the Federal 

 Migratory Bird Law, passed March 4, 

 1913, was argued before the Supreme 

 Court on October 18, 191 5. Harvey V. 

 Shauver had killed three Coots in viola- 

 tion of this law. The case had come 

 before the Federal Court of the Eastern 

 District of Arksansas, and the law in 

 question had been declared unconstitu- 

 tional by the presiding judge. The Gov- 

 ernment then took the case to the United 

 States Supreme Court, where, on the date 

 indicated above, E. Marvin Underwood 

 made oral argument and submitted a 

 brief in behalf of the Government. 

 Printed briefs were also submitted by 

 William Haskell, of the American Game 

 Protective Association, by Edward W. 

 Sanborn, for the Camp-Fire Club of 

 America, and by Charles S. Davison, for 

 the Boone and Crockett Club of New 

 York. Original and supplementary briefs 

 for the defendant were submitted by Ed- 

 ward L. Westbrooke, of Arkansas. 



It may be a month or even three months 

 before the Supreme Court will hand down 

 its decision. The following is a brief 

 summary of Mr. Underwood's oral argu- 

 ment: 



This case is an indictment for the killing 

 of three Coots in violation of the Migratory 

 Bird Law. The sole question involved is 

 the constitutionality of the act. The 

 Government maintained that it was 

 authorized under two provisions of the 

 Constitution — paragraph 2, section 3, 

 Article IV, which provides that "the 

 Congress shall have power to dispose of 

 and make all needful rules and regulations 

 respecting the territory or other property 

 belonging to the United States;" and 

 paragraph 3, section 8, Article I, which 

 authorizes Congress "to regulate com- 

 merce with foreign nations, and among 

 the several states, and with the Indian 

 tribes." Under the first head, the follow- 

 ing theory was developed: 



That the ownership of wild game is in 

 the sovereign is a legal principle founded 

 entirely on common law. The question in 



this case is what sovereign owns the 

 migratory wild life of the United States, 

 whether the nation as a whole or the 

 several states? This cjuestion is an 

 original one, involving the nature and 

 source of property rights; and the decision 

 in this case must declare the common law 

 determining such rights upon principle, 

 uninfluenced by supposed authority. 



Animals ferce naturce are common prop- 

 erty, belonging by the law of nature in 

 common to all citizens of the sovereignty. 

 This has been recognized from time im- 

 memorial not only by common-law 

 writers but also by civilians. The prop- 

 erty being common to all citizens, each 

 has the same right to its enjoyment. That 

 this right may be safeguarded and ren- 

 dered available to all, the common law 

 vests the title in the Government in trust 

 for the people. 



The only reason for, or purpose sub- 

 served by, so placing the title is that the 

 common property may be protected and 

 controlled. If there is no Government 

 which has power to protect, there is no 

 reason for a trustee, and the title, as well 

 as the beneficial ownership, may well rest 

 in the people. The Government's title, 

 therefore, to animals fcrce nature, has its 

 source in and depends upon its ability to 

 protect and control them for the benefit 

 of all. This being true, the common law 

 in case of conflict will uphold the title of 

 that Government which has the superior 

 power to protect and control such property 

 for the benefit of its common owners. 



The state, in contradistinction to the 

 United States, has, for the benefit of, and 

 in trust for, its people, ownership of all 

 wild animals remaining permanently 

 within its territorial limits. Having entire 

 control over such animals, the state can 

 protect and conserve them by its laws for 

 all of its people. From this power of con- 

 trol and protection the common law, as 

 interpreted by both federal and state 

 courts, has deduced state ownership of 

 animals /fr«; nalura. 



In the case of migratory wild life, how- 



