The Problem of Sovereignty

Abstract

THOSE of us interested in legal and constitutional history have to welcome the publication in the William and Mary Quarterly of Eric Nelson’s article. Perhaps this is a sign that the profession’s interests are starting to shift away from the topics that have dominated it during the past several decades. Nelson’s argument is clever but, as they like to say in the Oxbridge common rooms, perhaps too clever by half. The issues he deals with are not new. I think they were first taken up by modern scholarship in Randolph Greenfield Adams’s Political Ideas of the American Revolution, an important work that Nelson never cites. But more astonishing than this oversight is his failure in the article to deal with the doctrine of sovereignty—that is, the belief, articulated most forcefully by Sir William Blackstone in his Commentaries on the Laws of England, that there must be in every state “a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside.”1 For the British this sovereignty lay with the king-in-Parliament, since not only were all the estates of the realm—crown, lords, and people—present in Parliament but the logic of the doctrine dictated that sovereignty had to be located somewhere in every state. Though this doctrine of sovereignty was the most important concept of political science in eighteenth-century British culture and one that underlay the entire imperial debate, Nelson scarcely mentions it. It was the colonists’ inability to overcome the British insistence on the sovereignty of Parliament—that the colonists had to be totally under Parliament’s authority or totally outside it—that ultimately drove them to create what has been called the dominion or commonwealth theory of the empire. The colonists began the imperial debate (and Nelson is quite right in saying that it was a debate) by trying to explain their previous experience in the empire. They knew that since the seventeenth century they had accepted parliamentary regulation of their trade. But with the Stamp Act in 1765 the colonists also knew instinctively that they could never accept