Texas Parks & Wildlife Magazine   


From the Pen of Robert L. Cook

“Exactly where in the U.S. Constitution does it say that hunting is a right of every citizen?” I asked. “Nowhere!” my general counsel responded, “There is no reference to hunting in the U.S. Constitution.” “No reference?” “None.” Good grief, I thought, how could those great men forget to make hunting a “right” of every American citizen? “OK, how about where it says that all fish and wildlife belong to all the people; I know that one is in there.” “Nope, wrong again,” she said, “The words ‘fish’ and/or ‘wildlife’ do not appear in the U.S. Constitution.” Lawyers!

OK, so how is it that we all grew up thinking we had a “right” to hunt, and that our rebellious Yankee ancestors guaranteed that all wildlife belonged to all the people, not to the king or his royal henchmen? Since you know that I am not a lawyer (thank goodness) I will take some liberties in summarizing how we got where we are in regards to the complex issues of the uses of wildlife, hunting, fishing, the ownership of wildlife, and trespass in Texas.

The basis for our current wildlife laws traces back to ancient Roman law which, in summary, said that wild animals belonged to or were owned by no one. In addition, Roman law stated that landowners had the right to exclude hunters from their land, and the government in Rome maintained the authority to control harvests (seasons, bag limits). Once harvested, or captured, Roman law made it clear that the animal, bird or fish belonged to the person who “captured” it.

Centuries later, under English law and throughout most of Western Europe, all fish and wildlife belonged to the king. In fact, all of the forests of England and the “colonies” belonged to the king. The king might allow his Earl of This or Prince of That to hunt and fish a little on the side, but it was the king’s deer and you’d best not forget it! Needless to say, our ancestors who had a one-way ticket on the Mayflower or who got dropped off at Jamestown didn’t really think that the king had any claim to the fish and wildlife of the New World, where hunting was not a sporting matter, it was a source of food and clothing for survival. Hence, our War of Independence to be free and to decide for ourselves.

Our wildlife laws evolved over many decades, and through the 19th and early 20th centuries, American courts fashioned the uniquely American doctrine of “state ownership.” Simply put, the state “owns” the wildlife for the benefit of its citizens.

In addition, and some would say in contradiction to the state ownership of wildlife, all states, including Texas, have trespass laws which require that you obtain the landowner’s permission to enter private land, for any reason, such as hunting, fishing, birdwatching, breathing or whatever. Although some will argue that having to have permission to enter private land restricts their “right” to see and/or hunt wildlife, I believe that we should support our trespass laws, which are part of the reason that we have witnessed the most phenomenal recovery of wildlife populations in the known world.

I don’t know why our forefathers didn’t include some constitutional right for us hunters and wildlife watchers. Maybe they had better things to do. Or, just maybe, Gen. Washington decided to knock off a little early that day and go fishing.

We didn’t invent this wheel; we refined it and improved on it. It has stood the test of time. Get outdoors.

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