Regulation of Hunting and Fishing
As was cited in Geer v. Connecticut, 161 U.S. 519 (1896):
. "Pothier, in 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 to 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 centend 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. Poth. Trait e du Droit de Propriet e, 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 permission, and he can affix to this permission such restrictions and modifications as may seem to him good.' Potheir, "Trait e du Droit de Propriet e," No. 32.
This feudal prerogative is contrasted in Geer with that which existed for the private owner-citizen of land under the Roman system:
[Geer] "...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 speak 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 belong to nobody is acquired by the natural law by the person who first possesses it. We do not distinguish the acquisition of these wild 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.' Dig. bk. 41, 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. Inst. Bk. 2, tit. 1, 12."