FOREST AND STREAM 
201 
That night, midst revelry and song, the grand old Castle 
Hall sounding with joyous cries, healths were drank, and 
a noble banquet was served to the Dauphin and his gentle¬ 
men. 
“Bring me Seneschal,” cried the Prince, “Yon dish.” 
“ ’Tis a moor cock, so may it please you,” cried the Sen- 
echal; “Cooked Provencal fashion, with all his elegant 
plumage. In the sauce, my Prince, is choice wine. ’Tis a 
noble bird when prepared with skill.” 
“Rise,' Sir Claude Potier. In thy honor—for thou did’st 
save my life—I make thee knight and create for thee the 
noble order of the Cock. Thou shalt he the first knight. I 
believe that thou wilt uphold its honor,” and drawing his 
sword the Dauphin dubbed him knight, then carving the 
moor cock with his own hands, served the good knight 
Claude. 
Such was the origon of this order of the Cock, founded 
in the year 1214. It existed for fully three hundred years, 
and was sought after by many a gallant Frenchman in times 
long past away. 
X trespass and game protection. 
-♦- 
T HE Forest and Stream has been the recipient of 
innumerable letters from correspondents in regard to 
the game laws and the protection of game. We are afraid 
that in some instances we may have been considered indif¬ 
ferent or neglectful in not replying to or reproducing them, 
but we beg to assure our friends that not a single letter has 
been overlooked. Certainly, no person can be more direct¬ 
ly interested in these important topics than ourselves, and 
we do not think it egotistic on our part to assume that the 
efforts which we have made and will continue to make in 
this direction will in time bear their fruit. But we regard 
the whole subject as one by no means easy of solution, or 
to be treated superficially, and we have preferred, instead 
of attempting to adjudicate upon intricate legal points our¬ 
selves, not being learned in the law, to turn the whole cor¬ 
respondence over to an eminent jurist, who for acumen 
and a thorough knowledge of the game laws of this and 
other countries, stands among the first in his profession. 
We take, then, great pleasure in directing the attention of 
all societies for the protection of game and of sportsmen in 
general to the article which follows, believing that it is the 
first time that this question has ever been exhaustively and 
comprehensively handled by a competent jurist:— 
Believing that the Forest and Stream “will pander 
to no depraved tastes, nor pervert the legitimate sports 
on land and water to those base uses which always 
tend to make them unpopular with the virtuous and the 
good,” it seems now to be selected as the legitimate vehicle 
to convey some matured reflections on the necessity for 
and constitutionality of laws for the protection and preser¬ 
vation of game, and the- views and opinion now presented 
will, it is to be hoped, quiet the fears and apprehensions of 
every law-abiding citizen, of every honorable sportsman, 
and be only distasteful to the pot-hunter and the poacher. 
Game laws of one kind or another exist in all modern 
countries, and in recent times the tendency seems every¬ 
where to be to render them more stringent. The game laws 
of England, Ireland and Scotland, although somewhat dis¬ 
tinct, agree in their most important,provisions. The Eng¬ 
lish statutes now in force go back to commencement of the 
reign of William the Fourth and run along with various 
amendments to 25th Victoria. The common law is inter¬ 
woven with those statutes. The old common law doctrine 
that the sole right of hunting and killing game belonged to 
the crown, has been shewn to be erroneous, and it is now 
settled that at common law the owner of the soil, or if he 
has granted a lease without reserving the right, then the 
lessee or occupier has the right to catch and kill every wild 
animal that comes on his lands, but the English, Irish and 
Scotch statutes have made it necessary that the owner or 
other person having the legal right, shall before exercising 
that right, take out a game license. Not only is a game 
license necessary in all cases, but there is a certain season 
called the close season, during which it is unlawful for any 
person, whether having the legal right or not, to catch or 
kill game. Those statutes embrace"every species of game 
bird and game fish enumerated in the game laws of this 
State, and in addition, humanity and public policy, prompt¬ 
ed an English parliament to extend the legal shield of pro¬ 
tection over the eggs of all game birds and over the ova of 
all game fish. There is also in the United Kingdom a day¬ 
poaching act and a night-poaching act, which is described 
as too severe, but on the other hand it is answered that 
poaching is in reality only stealing under a milder name, 
and that the classes who poach are divided by a thin parti¬ 
tion from thieves. 
Vide Patterson’s game laws, but this is not an appropriate 
occasion to waste time on those thieves and vagabonds, 
those pests of society who are deservedly abhorred by every 
honorable sportsman. To them may be aptly applied the cal¬ 
umniating apostrophe of Somerville in his illusion to 
coursing— 
“The mean murderous crew 
Intent on blood and spoil.” 
u Having thus incidentally referred to the game laws of 
Great Britain ard Ireland” it may be proper to state that 
while those laws are represented to be far too stringent to 
he badly administered by interested justices and to be op¬ 
posed to the moral sense of the lower classes, their consti¬ 
tutionality has not been questioned, and although Mr. 
Bright, the great advocate of the peoples’ rights, obtained 
a committee of the House of Commons, who examined the 
subject, the game laws still remain in full force to adorn 
the statute books of Great Britain. 
Game laws have been enacted, and appear in the statute 
hooks of twenty-four States of the United States. It is not 
here intended to point out the crudities and absurdities of 
man Y of those statutes or to show that they in some in¬ 
stances tend to defeat the very object intended to be ac¬ 
complished; it is sufficient to state that the remedy lies in 
co-operative legislation and in a simplified code, a scheme 
thoughtfully considered and ably presented by Mr. Charles 
Hallock at the Convention of Fish Culturists in February, 
and by that scientific body of gentlemen unanimously ap¬ 
proved and adopted. The subject is now before the ‘ ‘Game 
Protective Society of New York,” by whom the proposed 
remedy of co-operative legislation will in a short time be 
submitted to all the scientific and acclimating societies and 
sportman’s clubs in the Union. 
The law of this State for the protection of game, although 
imperfect in some respects, being, it is believed, better 
adapted to meet the desired object, being more 
stringent m its provisions, and more strictly curtail¬ 
ing and infringing private rights than tlie laws of any 
other State, is selected as an appropriate theme in the hope 
of satisfactorily answering the numerous inquiries of friends 
and removing tlie objections of skeptics and enemies. Tlie 
act is entited, “An act to amend and consolidate the sev¬ 
eral acts relating to the preservation of moose, wild deer, 
birds and fish.” Tlie 7th and 20th sections are selected as 
the most prominent features of the statute which have ex¬ 
cited the hostility of land and water proprietors. The sec¬ 
tions are as follows:— 
§ 7. No person shall kill, or expose for sale, or have in 
his or her possession, after the same has been killed, any 
quail, between tlie 1st day of January and the 20th day of 
October, under a penalty of twenty-five dollars for each 
bird. 
§ 20. No person shall kill, or expose for sale, or have in 
his or her possession after the same has been killed any 
speckled trout, save only from the fifteenth day of March 
to the fifteenth day of September under a penalty of twenty- 
five dollars for each fish. But this person shall not prevent 
any person from catching trout in waters owned by them 
to stock other waters. 
There can be no doubt that these legislative enactments 
actually prohibit and were intended to prohibit tlie killing 
of quail or the catching of trout by the proprietor on liis 
own premises during certain months of tlie year. 
1st. The very language of the statute does this. “No 
person shall, &c.,” is the most comprehensive mode of ex¬ 
pression which the law can make use of, and being in this 
case unqualified and unrestricted by any limitations what- 
soever, must be taken to mean wliat it purports to be on its 
face, a general prohibition to all persons. 
Besides the proviso in section 20 to the effect, “But this 
section shall not prevent any person from catching trout 
with nets in waters owned by them to stock other waters,” 
clearly shows that the legislature intended to include such 
owners among those prohibited from doing the acts men¬ 
tioned in previous parts of the section, otherwise there 
would have been no necessity for an express proviso in 
their favor. ‘ 'Expressum facit cessare taciturn .” 
2d. It is one of tlie cardinal rules of construction that the 
'legislature in enacting a statute intended it to be valid and 
effectual. Hence, it was certainly intended to extend the 
general prohibition in the statute under consideration to 
acts done by proprietors on their own premises, for other¬ 
wise the purpose of tlie statute—the preservation of fisli and 
game would not be attained. If every man could kill and 
destroy at his own option wliat the statute was intended to 
protect, what need would there be of any statute? If the 
statute does not apply to all , it is without the breath of life, 
it is then a still-born statute. The statute thus evidently 
applying to all alike, whether the proprietors of the premises 
where the prohibited acts are done or not, the only inquiry 
which remains is, Has the legislature the constitutional 
power to pass such a law; and is it not in conflict with the 
constitutional provision that no man shall be deprived of 
bis life, liberty or property without due process of law? 
In order to understand the bearing of this inquiry it will 
be necessary to examine into the nature of property in 
animals. 
Blackstone,following closely the classification of the civ¬ 
ilians, divides property in animals into “absolute and quali¬ 
fied tlie former attaches to domestic, the latter to wild 
animals, or sncli as are domitiae , and such as are “ferae 
naturae . ” 
Of the former, it is not necessary to speak in this connec¬ 
tion. Animals “ferae naturaef become the subject of a 
qualified property when reclaimed by the art and power.of 
man, (Kent 2, p. 848); or as Blackstone says, “per indus- 
triamfi Blackstone 2, p. 891); but when they escape from 
his keeping and regain their natural liberty without the 
“animus revertendi ,” the property in them ceases, (i. d.) 
While this qualified property continues it enjoys, like any 
other kind of property, the full protection of the law. It is 
felony to steal animals “ferae naturae ,” provided they are 
confined or reduced to tameness, (Easts, P. C., 16, § 44; 
Plawk, c. 1, c. 88, § 26.) Mere pursuit and being in view 
of the animal does not create a property, because no pos¬ 
session has been acquired, (Pierson vs. Port, 3 Caines, x75 
and Berster vs. Newkirk, 20 Johns, 75.) So far does the 
common law go in protecting this qualified property in 
animals, “ferae naturae ,” that an action on tlie case will lie 
for wilfully frightening away the wild fowl from the decoy 
pond of another, for a person keeping up a decoy expends 
money and employs skill in taking that which is of use to 
the public. It was considered by Lord Holt as a description 
of trade, (Keeble vs. Hickeringill, 11 East, 574; 2 B. & C., 
943.) But unless something is actually done to bring such 
animals within tlie power and control of man they are like 
air and light common to all by the law of nature, (Kent 2, 
p. 348.) Hence they are not grantable by the common law. 
“Such things as are ferae naturae ,’ as coneys, bares, deers 
and such like are not, (while in an unreclaimed state,) grant- 
able at all,” (Priston’s Shepard’s Touchstone, p. 241, “tit 
grant.” Nor for tlie same reason can larceny be committed 
of such animals? (Blackstone 4, p. 235.) 
From these considerations it follows that the statute in 
question invades no right of property. It relates to animals 
“ferae naturae ,” which are still at liberty and not in the 
keeping of any individual. It prescribes the mode of exer¬ 
cising a right of property not yet acquired. Its provi¬ 
sions become a condition precedent to the acquisition and 
exercise of any such right. “Nor does such a statute work 
any natural injustice; since the law does not hereby deprive 
any man of bis present property, or what was already his 
own, but barely abridges him one means of acquiring a 
future property, that of occupancy, which indeed the law 
of nature would allow him, but of which the laws of society 
have in most instances very justly and reasonably deprived 
him,” (Blackstone 2, p. 412.) 
This, then, is the negative argument in favor of the con¬ 
stitutionality of the game law, as statutes like the one under 
consideration are called; the positive argument in favor of 
its expediency is, that it tends to the public good. It must 
be confessed that this consideration had little weight with 
those who framed the earlier English Game Laws, for the 
confessed object of these men was not to consult the good 
of the community hut to protect the privilege of a class. 
The common law nowhere shews stronger traces of feudal 
influence, than in its rules and doctrines concerning 
such animals, “ferae naturae ,” as are known by tlie 
denomination of game. The property in these, with tlie 
right to pursue, capture, and destroy them, vested in the 
King alone, and in such of bis subjects as liad derived their 
rights from him by grant. In this it differed from the civil 
law, which recognized no distinction of animals into game, 
nor the right of property in them as belonging exclusively 
to any class or set of individuals. The provisions of the 
common law on this subject were, after the conquest, bar¬ 
barous in their stringency, and the penalties attached to 
any, or even the slightest violation of them, were atrocious. 
This arose from the passion of the Norman kings for hunt¬ 
ing, which was so strong that they often risked their crowns 
to preserve this prerogative intact. They enacted the re¬ 
nowned forest laws, by which a legal sanction was given to 
tlie most tyrannous cruelties, and which were among the 
chief grievances complained of by the Barons as well as 
the Commons. These stringent game laws, or forest laws 
as they were then called, played no insignificant part in the 
development of English constitutional government, for 
they were greatly instrumental in effecting that union of 
the aristocracy and tlie commons by which the absolute 
prerogatives of the Crown were limited, and the supremacy 
of Parliament was finally established. But for whateve'r 
reasons game laws may have been originally enacted, they 
can be supported in a free and republican government like 
our own only on tlie ground of a public benefit. Their ob¬ 
ject here in this country is to preserve those species of ani¬ 
mals known as game which would soon be extirpated by 
general liberty. They protect from indiscriminate slaugh¬ 
ter those animals which serve the public as a valuable arti¬ 
cle of food. They preserve that which is of use to the 
public, for such, in Lord Holt’s opinion, is game, (Keeble 
vs. Hickenngill, 11 East, 574 ; 2 B. and C., 943). Game 
laws are therefore enacted for the good of the community, 
and as such they should be upheld and carried into effect. 
The absolute necessity of such laws has long been felt in 
all the eastern and many of the western States. In the 
former game may be said to have almost disappeared. The 
wild turkey is extinct, and quail and partridge are becom¬ 
ing scarcer every year. If the wholesale slaughter of deer 
continues for only a short time longer, the chapter on deer 
in the United States will be as suggestively brief as that 
on snakes in Ireland—“there are none.” Under these cir¬ 
cumstances it is not to be wondered at that game, as food, 
has become an expensive luxury, which the rich alone can 
afford, instead of a common article of food, within the 
means of all. It is said of Henry IV., of France, that the 
aim of his administration w r as to enable every peasant to 
have a fowl in his pot. It maybe said with more truth 
that it is the object of the game laws to place game on ple¬ 
beian as well as on aristocratic tables. 
It remains to consider in detail the provisions of the 
statute as to the catching and killing of trout, and their 
effect upon the rights of owners of fisheries* 
The subject of property in fish is discussed in Shultes 
on Aquatic Rights, where they are classed among “fierce 
naturae and on the authority of Bracton are said to be¬ 
come the property of the first taker. Fishes are “Animalia 
quae in mari nascuntur quae cum capiuntur eaptoris fiunt ” 
(Bract., 1 lib. c. 12, § 10; 2 lib. c. 1, § 2), and tlie rule of 
occupancy relates to fishing as well as hunting and other 
acts of acquiring ownership. But it must be re¬ 
membered that the right to take is something dis¬ 
tinct from the right of property in animals, (ferae 
naturae .) A may have the sole right to hunt on his 
own land, and yet have no property in the game un¬ 
lawfully killed on his premises by B. “It is clear that if a 
man pursue hares or other animals out of Ms lands, or the 
lands of another, into mine, and there take them, they are 
the hunter’s, and not mine, because I never had any origi¬ 
nal property by inclosing them,” (3 Bae. ^.be. tit. Game). 
A man may possess the exclusive right to catch fish, as in 
the case of riparian proprietors, who own in streams, not 
navigable, “usque aclfilum aquaef or he may own the land 
on both sides of such a stream and thus, by the common 
law, become the owner of tlie water, and yet in either case 
he has no property in the fish till caught or brought under 
his control. They are “ferae naturae ,” and the circum¬ 
stance that they live in the water which flows over his land 
no more confers a right of property than does the fact that 
partridges fly through the air over his premises. It was 
for this reason that by the common law no larceny could 
be committed of fish in an open river or pond, (Blackstone, 
4, p. 235). It is therefore apparent that the provisions of 
the game law, as to the catching of trout, deprive no man 
of his vested property, and are therefore constitutional. 
The Supreme Court of this State, in Hooker vs. Cummings, 
20 Johns, 90, speaking of laws similar to the one in ques¬ 
tion, says:—“Thelegislature have, confessedly, the right of 
regulating the taking of fish in private rivers, and do every 
year pass laws for that purpose, as to rivers not navigable 
in any sense, and which are unquestionably private prop¬ 
erty.” To the *same effect see Kent 3, p. 418. For such 
laws are for the public benefit, to preserve the fisli, and are 
public statutes, of which the courts must, ex officio , take 
notice, (Burnham vs. Webster, 5 Mass., 266; Common¬ 
wealth vs. McCready, 5 Mass., 324). 
There is one case mentioned by Blackstone where there 
is a property in fish, and that is of fishes found in a tank 
(Blackstone 4, p. 235), for in this instance they are so closely 
confined that they may be said to be reclaimed “per indus- 
triamj For tlie same reason a man owns the fishes in his 
fountain or in his aquarium. In such a case they are like 
deer in a park or pheasants in a mew, no longer “ferae 
naturae 
It is not strange that this subject is so little understood 
by the great majority of our citizens. Vie are a restive 
people. We live in a democratic region, under a form of 
government in which the supreme power is lodged in tlie 
hands of the people collectively; a form of representative 
democracy which de Tocqueville and Mill labored to prove 
as developing in the greatest degree the good mental quali¬ 
ties, both intellectual and moral, of the governed. This 
may all be true, but the daily violation of law, and the 
restive spirit shadowed forth in the pile of letters which 
encumber the editorial table of the Forest and Stream 
is not evidence of that development of mental and morai 
qualities of the governed predicted by the Frenchman and 
the Englishman. 
In one of the letters referred to, an extract is given from 
the Manchester, Vermont, Journal , as follows:—“It was the 
opinion of tlie late Judge Steele, who spent some time in¬ 
vestigating the subject, that the common law, which in the 
absence of the statute law, governs our State, secures to 
