SPHERE OF STATE GOVERNMENT 63 



The Modern English View of Property in Game: The 

 case of Blades v. Higgs, 33 decided by the House of Lords 

 in 1865 exhaustively considered the whole question of 

 ownership in animals ferae naturae and has come to be 

 regarded as the ruling English case on the subject. To that 

 court the sole question seemed to be whether the English 

 law followed the Roman rule, as expressed by Justinian, that 

 wild animals become the property of the person reducing 

 them to possession no matter where that reduction had taken 

 place, 34 or whether the landowner because of his ownership 

 of the soil has an exclusive right to the wild animals found 

 upon it or flying over it. 



In deciding that the latter rule was the correct interpre- 

 tation of the common law the House of Lords cited a long 

 line of English cases as precedents. 35 The theory of exclu- 

 sive royal ownership does not appear to have been consid- 

 ered in the case at all. The right of Parliament to legislate 

 regarding the taking of wild game is of course recognized 

 but it seems to be assumed by the court that the game laws 

 were for the purpose of protecting the rights of the land- 

 owners. 



Thus it seems clear that under the English common law 

 the king did not own all the game and fish in the kingdom 

 and that Blackstone erred in his interpretation of the com- 

 mon law. Justice White in accepting Blackstone, likewise 

 fell into the same error. 



The Effect of the Doctrine of State Ownership: The 

 major result of this error has been to enable the states to 



38 ii H. L. C. 621, ii Eng. Rep. 1474 (1865). 



3 * Bk. 41, Til. 1-2, De Adgulr Rer. Dom. 



35 The Coneys Case, Godbolt 122, 78 Eng. Rep. 75 (1590); Case of 

 Boulston, Cro. Eliz. 547, 5 Co. Rep. 105 (1583) ; Churchward v. Studdy, 

 14 East 249 (1811); Earl of Lonsdale v. Rigg, ii Exc. 654 (1856); 

 Sutton v. Moody, I Lord Raymond 250 (1697). 



