"Public Domain" vs. "Commons"
Justice White in Geer v. Connecticut, 161 U.S. 519 (1896,) attempted to explain the very subtle and confusing difference between "public domain" or negative community of interest and "commons" or positive joint public onwership in resources:
"Among other subdivisions, things were classified by the Roman law into public and common. The latter embraced animals ferae naturae, which, having no owner, were considered as belonging in common to all the citizens of the state. After pointing out the foregoing subdivision, the Digest says: 'There are things which we acquire the dominion of, as by the law of nature, which the light of natural reason causes every man to see, and others we acquire by the civil law; that is to say, by methods which belong to the government. As the law of nature is more ancient, because it took birth with the human race it is proper to speak first of the latter. ( 1) Thus, all the animals which can be taken upon the earth, in the sea, or in the air,-that is to say, wild animals,-belong to those who take them , ... because that which belong to nobody is acquired by the natural law by the person who first possesses it..."
"...In tracing the origin of the classification of animals ferae naturae, as things common, Potheir moreover says:
'The first of mankind had in common all those things which God had given to the human race. This community was not a positive community of interest, like that which exists between several persons who have the ownership of a thing in which each have their particular portion. [e.g. "joint" or communal ownership"] It was a community, which those who have written on this subject have called 'a negative community,' which resulted from the fact that those things which were common to all belonged no more to one than to the others, and hence no one could prevent another from taking of these common things that portion which he judged necessary in order to subserve his wants. [ e.g. "public domain."] Whilst he was using them, others could not disturb him; but when he had ceased to use them, if they were not things which were consumed by the fact of use, the things immediately re-entered into the negative community, and another could use them. The human race having multiplied, men partitioned among themselves the earth and the greater part of those things which were on its surface. That which fell to each one among them commenced to belong to him in private ownership, and this process is the origin of the right of property. Some things, however, did not enter into this division, and remain, therefore, to this day, in the condition of the ancient and negative community.' No. 21. [Clarification mine]
"Referring to those things which remain common, or in what he qualified as the negative community, this great writer says:
'These things are those which the jurisconsults called 'res communes.' Marcien refers to several kinds,-the air, the water which runs in the rivers, the sea, and its shores. ... As regards wild animals, ferae naturae, they have remained in the ancient state of negative community.'
"In both the works of Merlin and Pothier, ubi supra, will be found a full reference to the history of the varying control exercised by the law- giving power over the right of a citizen to acquire a qualified ownership in animals ferae naturae, evidenced by the regulation thereof by the Salic law, already referred to, exemplified by the legislation of Charlemagne, and continuing through all vicissitudes of governmental authority. This unbroken line of law and precedent is summed up by the provisions of the Napoleon Code, which declares (articles 714, 715): 'There are things which belong to no one, and the use of which is common to all. Police regulations direct the manner in which they may be enjoyed. The faculty of hunting and fishing is also regulated by special laws.' Like recognition of the fundamental principle upon which the property in game rests has led to similar history and identical results in the common law of Germany, in the law of Austria, Italy, and, indeed, it may be safely said in the law of all the countries of Europe. 1 Saint Joseph Concordance, p. 68."