Stephen Johnson Field

“ Although there are declarations of some courts that the state possesses a property in its wild game, and, when it authorizes the game to be killed and sold as an article of food, it may limit the sale only for domestic consumption, and the supreme court of errors of Connecticut, in deciding the present case, appears to have held that doctrine, I am unable to assent to its soundness, where the state has never had the game in its possession or under its control or use. ”

“ I do not think that it lies within the province of any state to confine the excellencies of any articles of food within its borders to its own fortunate inhabitants to the exclusion of others, and that it may lawfully require that game killed within its borders shall only be eaten in such parts of the country as it may prescribe. ”

“ The Roman law, as stated in the Digest, cited in the opinion of the majority, expresses it as follows: 'That which belongs to nobody is acquired by the natural law by the person who first possesses it.' A bird may fly at such height as to be beyond the reach of man or his skill, and no one can then assert any right of property in such bird ”

“ The decision of the court, however, would limit the right of sale of such property, however valuable it may become, and whether living or killed, to the directions of the state or community in which the property is found, and would convert it from the freedom of use which belongs to property in general to the limited use of the persons or communities where found, or to a particular class to which only property possessed of special ingredients or qualities is limited. ”

“ The statute under which he was prosecuted made it unlawful for any person to transport or to ship any animals or birds mentioned, among which were prairie chickens, out of the state of Kansas, and subjected him, on conviction thereof, to a fine of not less than ten nor more than fifty dollars. The defendant admitted the facts as alleged, but contended that such acts constituted no offense, claiming that the statute of the state under which the proceedings against him were commenced was unconstitutional and void. ”