Sovereignty and the Law

by

Zach Bates, Ken MacMillan

• LAST REVIEWED: 28 July 2021
• LAST MODIFIED: 28 July 2021
• DOI: 10.1093/obo/9780199730414-0054

Introduction

Sovereignty—or to use the Latin term, imperium—refers to the independent power of a monarch or nation against all other earthly authorities. By 1500, when expansion into the Atlantic began, this form of independence had been established by most European monarchs, who previously were considered to be under the authority of either the Holy Roman Emperor or the Roman Catholic Pope. A claim to sovereignty was used by the four principal European Atlantic powers—Britain, France, Portugal, and Spain—over and against three distinct bodies: (1) indigenous peoples, who were sometimes recognized as possessing a limited form of sovereignty (dominium), though rarely an absolute form; (2) subjects of the state claiming sovereignty, so that a legal, imperial, and constitutional relationship existed between the state and its colonies and subjects; and (3) monarchs and subjects of other states, so that a state’s claim to sovereignty would be recognized internationally. However, sovereignty was also a fluid concept at this time. Its definition—and therefore its application—was ambiguous, both in Europe and in the Atlantic, such that all claims to sovereignty and authority had a contingent nature to them. Closely associated with a claim to sovereignty were the transfer, creation, and exercise of law and legal institutions in the Atlantic world. These took on many forms (known as legal pluralisms) depending on the functions they were intended to serve. Different types of law and institutions dictated how sovereignty could be claimed and maintained, the political and constitutional structure of colonial entities, the handling of criminal (public) and civil (private) affairs, and the legal relationship between the Atlantic colonies and European crowns. Because of the vast amount of literature on this subject, this entry focuses on the temporal period circa 1500 to 1775, leaving the subject of the revolutionary Atlantic and the subsequent development of republican constitutions to more specialized entries.

General Overviews

Elliott 2006, Greene and Morgan 2009, and Kupperman 2012 introduce and contextualize the broader subject of Atlantic and imperial history. This is important to develop an understanding of the similar and contrasting methods of expressing sovereignty employed among the Atlantic powers. A key trend in the scholarship has been to examine the ways in which the various Atlantic powers interacted with one another when claiming sovereignty and possession. This interaction involved both the criticism of the methods and claims used by competitors (perhaps best embodied in the Iberian defense, and Northern criticism, of the legal efficacy of Alexander VI’s bull Inter Caetera, 1493), and the justification of their own methods though the use of various historical concepts and legal languages. The studies of Benton 2002, Pagden 1995, and Seed 1995 examine the many legal complexities involved in making claims to sovereignty and possession against both indigenous peoples and other colonizing powers. Another important trend is the exploration of indigenous ideas of sovereignty, such as in Weaver 2014 and Owensby and Ross 2018.

• Benton, Lauren. Law and Colonial Cultures: Legal Regimes in World History, 1400–1900. Cambridge, UK: Cambridge University Press, 2002.

  Wide-ranging study that shows how the variety of legal regimes throughout the world resulted in jurisdictional complexities in colonial legal systems, although there was an effort at continuity so that states could function within the international order.

• Elliott, J. H. Empires of the Atlantic World: Britain and Spain in America, 1492–1830. New Haven, CT: Yale University Press, 2006.

  Sweeping comparative analysis written in lively prose. Explains England’s Atlantic activities in relation to Spanish colonizing efforts, generally with the purpose of showing the similarities between the two approaches. Contains good analysis of theories of conquest, sovereignty, native dispossession, and “emancipation” from imperial powers.

• Greene, Jack P., and Philip D. Morgan, eds. Atlantic History: A Critical Appraisal. Oxford: Oxford University Press, 2009.

  New text that offers a broad discussion of the five Atlantic powers. Useful for contextualizing the various themes concerning Atlantic expansion.

• Kupperman, Karen Ordahl. The Atlantic in World History. New York: Oxford University Press, 2012.

  A short introduction to the study of the Atlantic and its place in world history. Covers a range of topics—commodity trades, early colonization, migration patterns, the establishment of interconnected political and commercial networks, and the development of a mature Atlantic by the 18th century—and has useful references for further readings, a chronology, and website recommendations. Suitable for undergraduates.

• Owensby, Bruce, and Richard J. Ross, eds. Justice in a New World: Negotiating Legal Intelligibility in British, Iberian, and Indigenous America. New York: New York University Press, 2018.

  Collection of essays that explores the meanings of law and justice in the New World. Many contributors emphasize the ways in which agents used these concepts as a means to achieve moral and political power in their dealings with each other.

• Pagden, Anthony. Lords of All the World: Ideologies of Empire in Spain, Britain, and France, c. 1500–c. 1800. New Haven, CT: Yale University Press, 1995.

  Influential work arguing that European Atlantic methods of establishing sovereignty and possession were informed by medieval perceptions of Christian universal supremacy and classical theories of empire. The Spanish used the language and methods of conquest, while the British and French eschewed that language in preference for mundane methods of settlement.

• Seed, Patricia. Ceremonies of Possession in Europe’s Conquest of the New World, 1492–1640. Cambridge, UK: Cambridge University Press, 1995.

  A seminal though controversial comparison of the methods of settlement used by the five major Atlantic powers, arguing that each nation used vernacular legal methods of establishing sovereignty and possession that could not be effectively communicated to the supranational community. See especially chapter 1.

• Weaver, Jace. The Red Atlantic: American Indigenes and the Making of the Modern World, 1000–1927. Chapel Hill: University of North Carolina Press, 2014.

  This sweeping survey follows several different indigenous soldiers, artists, and officials who traveled throughout the Atlantic world. Chapter 3 is especially important: It argues that indigenous diplomats made claims for indigenous sovereignty and participated in European debates about statecraft.