State Claims of
There is a difference between territorial domain as defined among nations and dominion in the sense of proprietary ownership in the title to land. Arguments in the U.S. Supreme Court case of Martin v. Waddell's Lessee, 41 U.S. 367 (1842) cite the "law of nations" regarding ownership among nations as a separate element from that of investiture of the sovereign king or queen with allodial title to the nation's lands and resources:
"The laws of nature and nations establish the following propositions, pertinent to this question: 1. Every nation is the proprietor [owner] as well of the rivers and seas as of the lands within its territorial limits. Vattel 120, 266. 2. The sea itself, to a certain extent, and for certain purposes, may be appropriated and become exclusive property as well as the land. Vattel 127, 287; Ruth. book 1, ch. 5, p. 76, 3. 3. The nation may dispose of the property in its possession, as it pleases; may lawfully alienate or mortgage it. Vattel 117, 261-2. 4. The nation may invest the sovereign with the title to its property, and thus confer upon him the rights to alienate or mortgage it. Vattel 117, 261-2. The laws of England establish the following propositions material to this point: 1. The common law of England vests in the king the title to all public property. 1 Bl. Com. ch. 8, 298-9; 2 Ibid. 15, 261-2; Harg. Law Tracts, de Jure Maris, ch. 4, 10, 11, 12; 6 Com. Dig. tit. Prerogative, 60, B. 63; Tenure 337; 5 Com. Dig. tit. Navigation, 107; 3 Co. 5, 109. 2."
These two concepts form the difference in concept between "imperium" - or right to regulate or govern as references a definable place and "dominium," or ownership. In Toomer v. Witsell, 334 U.S. 385 (1948,) Justice Vinson made the statement: "The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource." To this he footnoted:
"See, e.g., Pound, An Introduction to the Philosophy of Law, 197- 202. The fiction apparently gained currency partly as a result of confusion between the Roman term imperium or governmental power to regulate, and dominium, or ownership. Power over fish and game was, in origin, imperium." Ibid.
Neither the governments of the United States or the States have the constitutional capacity to claim the English monarchical right of underlying allodial ownership in public property in a sovereign capacity. This concept of underlying ownership formed the basis for the Englishand European "feudal" system, where property was conditionally granted to subjects by the sovereign. We do not have a feudal system in America.
In applying English precident to early American cases, the Court did decide that certain limited prerogative proprietary rights of the Crown in "Royal Rivers" and the "sea and its arms" did pass to the new States. In addition, the States also inherited the Crown's specific role as Trustee for public rights or "commons" in the fishery and right of free navigation that were associated with the lands of the beds and banks of these Royal Rivers.
This concept of a very specific public trust became mired in difficulties in grasping the differences between the concepts of "commons" (active collective ownership by the public,) "res nullius" (wild things with no owner,) and "public domain" (a "negative community of interest" in which citizens could appropriate resources for their free use- not collective ownership.) Early cases, such as Mc Cready v. State of Virginia, which involved the specific right of common fishery were inappropriately applied to all fish and wildlife resources. The Court then developed the concept of a sort of technical State "ownership" in all fish and wildlife as trustee of commonly owned resources. At other times the Court appeared to recognize a "proprietary" right and title by the State in fish and game resources, a claim that supported the right by the State to tax for severance of its "sovereign title" into private possession and use.
The traditional legal concepts of fish and "wildlife" as in the public domain - subject to private property acquisition through acts of possession or "take," became obscured. The real property rights of "fishery" and transient ownership in "ferae naturae-propter privilegium" of migratory and resident species, such as bees, became obscured.
Eventually, the idea of underlying ownership was overturned in Hughes v. Oklahoma. The surviving general basis for the authority of the State to regulate hunting and fishing is found its police powers to determine what constitues acquisition and to conserve the resource for survival of the community. There is also some limited regulatory authority based in management of the "public trust" relating to the limited "common right of piscary," (common public property rights in "fisheries" or places of fishing attached to tidelands and underlying bed and banks of navigable streams.) There may also be a limited form of ownership in resident fish and wildlife by virtue of State proprietary land ownership in parks and refuges,