THE POWER OF THE STATE TO REGULATE FISH- 

 ERIES, AND THE TAKING OF FISH. 



BY EDWIN E. BRYANT. 



The purpose of this paper is to give some general principles 

 as laid down by onr Courts, as to the power of the State to con- 

 trol and regulate the taking of fish in all waters, save private and 

 artificial ponds where the fish are rightfully confined from pass- 

 ing into waters not owned by the proprietor. No attempt is 

 made to give the legislation of the various states, which is vari- 

 ant, changeful to fickleness, and oscillating from harshness and 

 unreason to unreasonable laxity ; and everywhere but indiffer- 

 ently enforced. The scope of this paper is confined rather to 

 those general principles iTuderlying all legislation on the subject 

 of regulation and preservation of fish and game. It is rather a 

 collation of the doctrines of the Courts than an expression of per- 

 .sonal opinion. A few suggestions as to the proper framing of 

 protective laws are added ; and these, so far as they are the sub- 

 ject of criticism, the writer and not the Courts, must be answer- 

 able for. 



T. The ownership of Fish and Game. — The fundamental 

 principle on which legislation of this kind rests is that the owner- 

 .ship of fish and game in the wild state is in the State, in trust for 

 all the citizens. English doctrine is that the ownership is in the 

 Xing, as the representative of the sovereignty, in trust for his 

 sul)jects. And it was centuries ago the settled policy of the com- 

 mon law tbat the hunting and killing of game or the catching of 

 fish in public waters might be regulated under the ])olice power 

 of the government. 



The property of the King passed to his gTantees under the 

 various grants made by royal charter, and vested as an incident 

 of sovereignty in the states upon their being absolved from alle- 

 giance to the Briti&h Crown. :\[artin v. Waddell, 10 Pet. 367; 

 Russell V. Jersey Co., 56 U. S., 15 How. 436. 



The power in the government to enact laws in regard to fish, 

 to which this paper is limited, has been repeatedly affirmed by 



