SPHERE OF STATE GOVERNMENT 57 



The common law of England also based property in game 

 upon the principle of common ownership and therefore treated 

 it as subject to governmental authority. 



Justice White goes on to say, 



Undoubtedly this attribute of government to control the taking 

 of animals ferae naturae which was thus recognized and en- 

 forced by the common law of England, was vested in the colonial 

 governments, where not denied by their charters or in conflict 

 with grants of 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. 



He points out that while the state took the place of the 

 English government with relation to the exercise of he police 

 power, so the state took the place of the English king with 

 relation to ownership of wild game and fish. Thus the two- 

 fold doctrine upon which rests the state's authority over 

 animals ferae naturae developed. 



Blackstone' s Interpretation of the Common Law: Justice 

 White's reliance upon Blackstone's interpretation of the 

 common law is no doubt responsible for the theory that the 

 king, as sovereign, owned game animals, for he quotes 

 Blackstone as follows : 



There still remains another species of prerogative property, 

 . . . the property of such animals ferae naturae 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 

 grants of a chase, a park, a free warren, or a free fishery . . . 



At another point in his Commentaries, Blackstone elab- 

 orates upon the ownership theory, stating that animals ferae 



