APPENDIX. 67 



governmental authority," and further (p. 527): "The practice 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 taking 

 of animals ferae naturae, which was thus recognized and enforced 

 by the common law of England, was vested in the colonial govern- 

 ments, where not denied bj^ their charters, or in conflict with grants 

 of the royal prerogative. It is also certain that the power which the 

 colonies thus possessed passed to the States with the separation from 

 the mother country, and remains in them at the present day, in so 

 far as its exercise may be not incompatible with, or restrained by, 

 the rights conveyed to the Federal government by the Constitution. 

 Kent, in his Commentaries, states the ownership of animals ferae 

 naturae to be only that of a qualified property. 2 Kent, Com. 347. 

 In most of the States laws have been passed for the protection and 

 preservation of game. We have been referred to no case where the 

 power to so legislate has been questioned, although the books contain 

 cases involving controversies as to the meaning of some of the 

 statutes. Commonwealth v. Hall, 128 Mass. 410; Commonwealth v. 

 Wilkinson, 139 Penn. St. 298; People v. O'Neil, 71 Michigan, 325. 

 There are also cases where the validity of some particular method of 

 enforcement provided in some of the statutes has been drawn in ques- 

 tion. Kansas v. Saunders, 19 Kansas, 127; Territory v. Evans, 2 

 Idaho, 658. 



"The adjudicated cases recognizing the right of the States to con- 

 trol and regulate the common property in game are numerous. In 

 McCready v. Virginia, 94 U. S. 391, the power of the State of Virginia 

 to prohibit citizens of other States from planting oysters within the 

 tide waters of that State was upheld by this court. In Manchester v. 

 Massachusetts, 139 U. S. 240, the authority of the State of Massachu- 

 setts to control and regulate the catching of fish within the bays of 

 that State was also maintained. See also Phelps v. Racey, 60 N. Y. 

 10; Magner v. People, 97 Illinois, 320; American Express Co., v. 



