SPHERE OF STATE GOVERNMENT 



59 



notably of Sir William Holdsworth, 15 leaves scarcely any 

 room for doubt that Blackstone erred in his explanation. 



Christian contended if all wild game, no matter where 

 found, belonged to the king under the common law, then 

 why should swans be singled out and declared royal birds? 

 He especially cites the Case of the Swans, 1 * in which Justice 

 Coke declares, 



The swan is a royal fowl ; and all those the property whereof 

 is not known, do belong to the king by his prerogative ; and so 

 whales and sturgeons are royal fish, and belong to the king by 

 his prerogative . . . and when the property of a swan can not 

 be known, the same being by nature a fowl royal, doth belong 

 to the king . . . And the king may grant wild swans unmarked. 



Holdsworth traced the theory of royal ownership to Brae- 

 ton 17 from whom Blackstone drew it, but says, 18 



There is no reason to think that this [wild game, the property 

 of the crown] was ever the law of England. The king may, 

 it is true, have claimed that he was the owner of all wild animals, 

 just as he may have claimed to be owner of all mines; but just 

 as his claims over mines came to be limited to mines of a special 

 kind, so his claims to wild animals came to be limited to a few 

 varieties such as swans and whales ; and even in these cases his 

 rights were subject to all sorts of limitations. 



The Royal Prerogative of Afforesting Land: The Nor- 

 man kings had claimed and exercised the prerogative of 



15 Professor of English Law, Oxford University. This view has the 

 support of other commentators, see comments of Judges Coleridge, Chitty, 

 and Bell in footnotes, Blackstone (Sharwood's ed.), Philadelphia (1867), 

 P. 4io. 



16 7 Coke 16, 77 Eng. Rep. 435 (1585). 



17 See also Maitland's commentary in " Bracton and Azo," p. 103, 

 Seldon Society Papers. 



18 Hold worth, Wm., History of the English Law, London (1925), 

 vol. vii, p. 491. 



