210 
FOREST AND STREAM. 
[March 14, 1896. 
or gray squirrel between the first day of January and the first day of 
October, the killing or having in possession of each bird or squirrel 
to be deemed a separate offense * * * shall be fined not more than 
130." 
It is further by the statute of the same State provided 
(Section 3.546): 
"No person shall at any time kill any woodcock, grouse or quail for 
the purpose of conveying the same beyond the limits of the State, or 
shall transport or have in possession, with intention to procure the 
transportation beyond said limits, of any such birds killed within this 
State. The reception by any person within this State of any such bird 
or birds for shipment to a point without the State shall beprima 
facie evidence that said bird or birds were killed within the State for 
the purpose of carrying the same beyond its limits." 
An information was filed against the plaintiff in error 
in the police court of New London, Conn., charging him 
with on the 19fch day of October, 1889, unlawfully receiv- 
ing and having in his possession, with the wrongful and 
unlawful hitent to procure the transportation beyond the 
limits of the State, certain woodcock, ruffed grouse and 
quail killed within this State after the 1st day of October, 
1889. The trial of the charge resulted in the conviction 
of the defendant and. the imposing of a fine upon him. 
Thereupon the case was taken by appeal to the criminal 
court of the Common Pleas. In that court the defendant 
demurred to the information on the ground, among 
others, that the statute upon which that prosecution was 
based violated the Constitution of the United States. 
The demurrer being overruled, and the defendant de- 
, dining to answer over, he was adjudged guilty and con- 
demned to pay a fine and costs, and to stand committed 
until he had complied with the judgment. An appeal 
was prosecuted to the Supreme Court of Errors of the 
State. The defendant on the appeal assigned the follow- 
ing errors; "The court erred — 
"First — In holding that the allegations contained in the 
complaint constitute an offense in law. 
"Second — In holding that said complaint was insuffi- 
cient in the law without an allegation that the birds 
therein mentioned were killed in this State for the pur- 
pose of conveying the same beyond the limits of this 
State. 
"Third— In refusing to hold that so much of Section 
2,546 of the general statutes, under which this Complaint is 
brought, as may be construed to forbid the transportation 
from this State of the birds therein described, lawfully 
killed and permitted by the laws of the State to become 
the subject of traffic and commerce, is unconstitutional 
and void. 
"Fourth— In refusing to hold that so much of said section 
as may be construed to forbid the receiving and having in 
possession, with intent to procure the transportation 
thereof to another State, birds therein described, lawfully 
killed and permitted by the laws of this State to become 
the subject of traffic and commerce, is unconstitutional 
and void. 
"Fifth— In holding that the defendant is guilty of an 
offense under said section if such birds were lawfully 
killed in this State and were bought by the defendant of 
this State as articles of property, merchandise and com- 
merce, and had begun to move as an article of interstate 
commerce. 
"Sixth— In not rendering judgment for defendant." 
In the Supreme Court the conviction was affirmed. The 
case is reported in 67 Conn., 144. To this judgment of 
affirmance this writ of error is prosecuted. 
Mr. Justice White, after stating the case, delivered 
THE OPINION OF THE COURT. 
By the statutes of the State of Connecticut, referred to 
in the statement of facts, the open season for the game 
birds mentioned therein was from Oct. 1 to Jan. 1. . The 
birds which the defendant was charged with unlawfully 
having in his possession on Oct. 19 for the purpose of un- 
lawful transportation beyond the State were alleged to 
have been killed within the State after Oct. 1. They 
were, therefore, killed during the open season. There 
was no charge that they had been unlawfully killed for 
the purpose of being transported outside of the State. 
The offense, therefore, charged was the possession of 
game birds for the purpose of transporting them beyond 
the State, which birds had been lawfully killed within 
the State. The court of last resort of the State held, in 
interpreting the statute already cited, by the light afforded 
by previous enactments, that one of its objects was to 
forbid the killing of birds within the State during the 
open season for the purpose of transporting them beyond 
the State, and also additionally as a distinct offense to 
punish the having in possession, for the purpose of trans- 
portation beyond the State, birds lawfully killed within 
the State. The court found that the information did not 
charge the first of these offenses, and therefore that the 
sole offense which it covered was the latter. It then de- 
cided that the State had power to make it an offense to 
have in possession, for the purpose of transportation be- 
yond the State, bird* which had been lawfully killed 
within the State during the open season, and that the 
statute in creating this offense did not violate the inter- 
state commerce clause of the Constitution of the United 
States. The -correctness of this latter ruling is the ques- 
tion for review. In other words, the sole issue which the 
case presents is: 
Was it lawful, under the Constitution of the United 
States (Section 8, Article 1), for the State of Connecticut to 
allow the Trilling of birds within the State during a desig- 
nated open season, to allow such birds, when so killed, to 
be used, to be sold and to be bought for use within the 
State, and yet to forbid their transportation beyond the 
State? 
Or, to state it otherwise, had the State of Connecticut 
the power to regulate the killing of game within her bor- 
ders so as to confine its use to the limits of the State and 
forbid its transmission outside of the State? 
In considering this inquiry we of course accept the in- 
terpretation affixed to the State statute by the cpurt of 
last resort of the State. The solution of the question in- 
volves a consideration of the nature of the property in 
game and the authority which the State had a right law- 
fully to exercise in relation thereto. 
The writer of a learned article in the Repertoire of the 
Journal in Palais mentions the fact that the law of 
Athens forbade the killing of game {Rep. Gen. J. P., Voh 
5, p. SOT), and Merlin says (Repertoire de Jurisprudence, 
Vol. 4, p. 1$8) that "Solon, seeing that the Athenians gave 
themselves up to the chase to the neglect of the mechani- 
cal arts, forbade the killing of game." 
Among other subdivisions, things were classified by the 
Roman law into public and common. The latter em- 
braced animals feroz naturae, which, having no owner, 
were considered as belonging in common to all the citi- 
zens of the State. After pointing out the foregoing sub- 
division, the Digest says: 
"There are things which we acquire the dominion of, as by the law 
of nature, which the light of natural reason causes every man to see' 
and others we acquire by the civil law, that is to say, by methods 
which belong to the Government. As the law of nature Is more 
ancient, because it took birth with the human race, It is proper to 
Bpeak first of the latter. 1. Thus, all the animals which can be taken 
upon the earth, in the sea, or in the air, that is to say, wild animals, 
belong to those who take them. * * * Because that which belongs 
to nobody is acquired by the natural law by the person who first pos- 
sesses it. We do not distinguish the acquisition of these beasts and 
birds by whether one has captured them on his own property or on 
the property of another; but he who wishes to enter into the property 
of another to hunt can be readily prevented if the owner knows his 
purpose to do so."— (Digest, Booh Ul, Tit. 1, De Adquir. Rer. Dom.) 
No restriction, it would hence seem, was placed by the 
Roman law upon the power of the individual to reduce 
game, of which he was the owner in common with other 
citizens, to possession, although the Institutes of Justinian 
recognized the right of an owner of land to forbid 
another from killing game on his property, as indeed this 
right was impliedly admitted by the Digest in the passage 
just cited. (Institutes, Book 2, Tit. 1, s. 12.) 
The inhibition was, however, rather a recognition of 
the right of ownership in land than an exercise by the 
State of its undoubted authority to control the taking and 
use of that which belonged to no one in particular, but 
was common to all. In the feudal as well as the ancient 
law of the continent of Europe, in all countries, the right 
to acquire animals ferae, naturae by possession was 
recognized as being subject to the governmental authority 
and under its power, not only as a matter of regulation, 
but also of absolute control. Merlin, ub. sup., mentions 
the fact that, although tradition indicates that from the 
earliest day in France every citizen had a right to reduce 
a part of the common property in game to ownership by 
possession, yet it was also true that as early as the Salic 
law that right was regulated in certain particulars. 
Pothierin his treatise on Property speaks as follows: 
"In France, as well as In all other civilized countries of Europe, the 
civil law has restrained the liberty which the pure law of nature gave 
to every one to capture animals who, being in naturali laxitate] 
belong to no person In particular. The sovereigns have reserved to 
themselves, and to those whom they judge proper to transmit It, the 
right to hunt all game, and have forbidden hunting to other persons. 
Some ancient doctors have doubted if sovereigns had the right to 
reserve hunting to themselves and to forbid it to their subjects. They 
contend that as God has given to man dominion over the beasts, the 
prince had no authority to deprive all his subjects of a right which 
God had given them. The natural law, say they, permitted hunting 
to each individual. The civil law which forbids it is contrary to the 
natural law, and exceeds, consequently, the power of the legislator, 
who, being himself submitted to the natural law, can ordain nothing 
contrary to that law. It Is easy to reply to these objections. From 
the fact that God has given to human kind dominion over wild beasts 
It does not follow that each individual of the human race should be 
permitted to exercise this dominion. The civil law, it is said, cannot 
be contrary to the natural law. This Is true as regards those things 
which the natural law commands or which it forbids; but the civil law 
can restrict that which the natural law only permits. The greater 
part of all civil laws are nothing but restrictions on those things which 
the natural law would otherwise permit. It is for this reason, although 
by the pure law of nature hunting was permitted to each individual, 
the prince had the right to reserve it In favor of certain persons and 
forbid it to others." (Pothier.Traite du Droit dePropriete, Nos. 27-28.) 
"The right belongs to the king to hunt In his dominion; his quality 
of sovereign gives him the authority to take possession above all others 
of the things which belong to no one, such as wild animals; the lords 
and those who have a right to hunt hold such right but from his per- 
mission, and he can affix to this permission such restriction and modi- 
fications as may seem to him good." (No. 32.) 
In tracing the origin of the classification of animals 
ferae naturae, as things common, Pothier moreover says: 
"The first of mankind had, in common, all those things which God 
had given to the human race. This community was not a positive 
community of Interest, like that which exists between several persons 
who have the ownership of a thing in which each have their particular 
portion. It was a community which those who have written on this 
subject have called a negative community, which resulted from the 
fact that those things which were common to all belonged no more to 
one than to the others, and hence no one could prevent another from 
taking of these common things that portion which he judged neces- 
sary to subserve his wants. Whilst he was using them others could 
not disturb him, but when he had ceased to use them— If they were 
not things which were consumed by the fact of use— the things imme- 
diately re-entered into the negative community, and another could use 
them. The human race having multiplied, men partitioned among 
themselves the earth and the greater part of those things which were 
on its surface. That which fell to each one among them commenced 
to belong to him in private ownership, and this prcoess is the origin of 
the right of property. Some things, however, did not enter Into this 
division, and remain therefore to this day In the condition of the 
ancient and negative community." (No. 21.) 
Referring to those things which remain common, or in 
what he qualified as the negative community, this great 
writer says: 
"These things are those which the jurisconsults called res com 
munes. Marcien refers to several kinds— the air, the water which 
runs In the rivers, the sea and Its shores. * * * As regards wild 
animals, ferce naturoz, they have remained In the ancient state of 
negative community." 
In both the works of Merlin and Pothier, ub. sup., will 
be found a full reference to the history of the varying con- 
trol exercised by the law-giving power over the right 
of a citizen to acquire a qualified ownership in animals, 
fern natures, evidenced by the regulation thereof by the 
Salic law already referred to, exemplified by the legia - 
lation of Charlemagne, and continuing through all vicis- 
situdes of governmental authority. This unbroken line 
of law and precedent is summed up by the provisions of 
the Napoleon Code, which declare (arts. 714, 715): "There 
are things which belong to no one, and the use of which 
is common to all. Police regulations direct the manner 
in which they may be enjoyed. The faculty of hunting 
and fishing is also regulated by special laws." Like rec- 
ognition of the fundamental principle upon which the 
property in game rests has led to similar history and 
identioal results in the common law of Germany, in the 
law of Austria, Italy, and indeed it may be safely said 
in the law of all the countries of Europe. (Saint Joseph 
Concordance, Vol. 1, p. 68.) 
The common law of England also based property in 
game upon the principle of common ownership, and there- 
fore treated it as subject to governmental authority. 
Blackstone, while pointing out the distinction between 
things private and those which are common, rests the 
right of an individual to reduce a part of this common 
property to possession, and thus acquire a qualified owner- 
ship in it, on no other or different principle from that 
upon which the civilians based such right. (2 Bl. Com. , 
1 and 12.) 
Referring especially to the common ownership of game, 
he says: "But after all there are some few things which, 
notwithstanding the general introduction and continuance 
of property, must still unavoidably remain in common, 
being such wherein nothing but an usufructuary 
property is capable of being had; and therefore they 
still belong to the first occupant during the time he holds 
possession of them and no longer. Such (among others) 
are the elements of light, air and water, which a man 
may occupy by means of his windows, his gardens, his 
mills and other conveniences; such also are the generality 
of those animals which are said to he ferae natural or of a 
wild and untamable disposition, which any man may 
seize upon or keep for his own use or pleasure." (2 Bl. 
Com., 14.) 
"A man may lastly have a qualified property in ani- 
mals ferae, naturae, propter privilegium — that is, he may 
have the privilege of hunting, taking and killing them in 
exclusion of other persons. Here he has a transient 
property in these animals usually called game as long as 
they continue within his liberty, and he may restrain any 
stranger from taking them therein; but the instant they 
depart into another liberty this qualified property ceases. 
* * * A man can have no absolute permanent prop- 
erty in these, as he may in the earth and land; since these 
are of a vague and fugitive nature, and therefore can only 
admit of a precarious and qualified ownership, which 
lasts so long as they are in actual use and occupation, but 
no longer." (2 Bl. Com., 394.) 
In stating the existence and scope of the royal prerog- 
ative, Blackstone further says: "There still remains an- 
other species of prerogative property founded upon a 
very different principle from any that have been men- 
tioned before: the property of such animals, feramaturce, 
as are known by the denomination of game, with the 
right of pursuing, taking and destroying them, which is 
vested in the king alone, and from him derived to such 
of his subjects as have received the grants of a chase, a 
park, a free warren or free fishery. * * * In the first 
place then, we have already shown, and indeed it cannot 
be denied, that by the law of nature every man from the 
prince to the peasant has an equal right of pursuing and 
taking to his own use all such creatures as are ferm 
naturoz, and therefore the property of nobody, but liable 
to be seized by the first occupant, and so it was held by 
the Imperial law as late as Justinian's time. * * * 
Bat it follows from the very end and constitution of 
society that this natural right as well as many others be- 
longing to man as an individual may be restrained by 
positive laws enacted for reasons of State or for the sup- 
posed benefit of the community." (2 Bl. Com., 410.) 
The praotice of the Government of England from the 
earliest time to the present has put into execution the 
authority to control and regulate the taking of game. 
Undoubtedly this attribute of government to control the 
