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13 Cornell L. Q. 8 (1927-1928)
Property and Sovereignty

handle is hein.journals/clqv13 and id is 22 raw text is: PROPERTY AND SOVEREIGNTY* Moiuus R. COHENt Property and sovereignty, as every student knows, belong to entirely different branches of the law. Sovereignty is a concept of political or public law and property belongs to civil or private law. This distinction between public and private law is a fixed feature of our law-school curriculum. It was expressed with characteristic i8th century neatness and clarity by Montesquieu, when he said that by political laws we acquire liberty and by civil law property, and that we must not apply the principles of one to the other., Montesquieu's view that political laws must in no way retrench on private property because no public good is greater than the main- tenance of private property, was echoed by Blackstone and became the basis of legal thought in America. Though Austin, with his usual prolix and near-sighted sincerity, managed to throw some serious doubts on this classical distinction,2 it has continued to be regarded as one of the fixed divisions of the jural field. In the second volume of his Genossenschaftsreclht the learned Gierke treated us to some very interesting speculations as to how the Teutons became the founders of public law just as the Romans were the founders of private law. But in later years he somewhat softened this sharp distinction;3 and common law lawyers are inclined rather to regard the Roman system as giving more weight to public than to private law. The distinction between property and sovereignty is generally identified with the Roman discrimination between dominium, the rule over things by the individual, and imperium, the rule over all *A lecture delivered. at the Cornell Law School, under the Frank Irvine Lectureship of the Phi Delta Phi Foundation, April thirtieth, nineteen hundred and twenty-seven. tProfessor of Philosophy, College of the City of New York. 1L'ESPRIT DES Lois, Bk. XXVI, c. 15. 2JURISPRUDENCE, Lect. 44. 3I HOLTZENDORF-KOHLER ENCYKLOPXDIE 179-180. Continental jurists generally regard the Roman law as more individualistic and less social than the Germanic law. Cf. III JEERING GEIST 311; BESELER-DEuT, PRIVATRECHT § 81; GIEREE, XII SCHMOLLER'S JAHRBUCH 875; MENGER, II ARCHIV FUR SociALE GESETZGEB 430; RAMBAUD, I CIVILISATION FRANCAISE 13; D'Arbois de Jubani- vile in Acad. Inscriplions, Feb. 1887. This seems also the view of Maine, ANCIENT LAW 228. Maitland's remarks that the whole constitutional history of England seems at times to be but an appendix to the laws of real property (MAITLAND, CONSTITUTIONAL HISTORY OF ENGLAND (1911) 536), only echoes the prevailing French attitude that their Civil Code is their real constitution.