768
Souter, J., dissenting
munity, he did not confuse them. It was as well he did not, for although the two conceptions were arguably "consonant" in England, where according to Blackstone, the Crown was sovereign,7 their distinct foundations could make a difference in America, where the location of sovereignty was an issue that independence would raise with some exigence.
B
Starting in the mid-1760's, ideas about sovereignty in colonial America began to shift as Americans argued that, lacking a voice in Parliament, they had not in any express way consented to being taxed. See B. Bailyn, The Ideological Origins of the American Revolution 204-219 (1968); G. Wood, The Creation of the American Republic, 1776-1787, pp. 347-348 (1969). The story of the subsequent development of conceptions of sovereignty is complex and uneven;
for this conception is a statement of Ulpian's recorded in the Digest, I.3.31, and much interpreted by medieval jurists, "Princeps legibus solutus est"; "The emperor is not bound by statutes." See 1 The Digest of Justinian 13 (T. Mommsen & P. Krueger eds., A. Watson transl. 1985); Tierney, The Prince Is Not Bound by the Laws: Accursius and the Origins of the Modern State, 5 Comparative Studies in Society and History 378 (1963); K. Pennington, The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition 77-79 (1993). Through its reception and discussion in the continental legal tradition, where it related initially to the Emperor, but also eventually to a King, to the Pope, and even to a city-state, see id., at 90, this conception of sovereign immunity developed into a theoretical model applicable to any sovereign body. Thus Hobbes could begin his discussion of the subject by saying, "The sovereign of a Commonwealth, be it an assembly or one man, is not subject to the civil laws." Leviathan, ch. 26, p. 130. There is debate on the degree to which different medieval interpreters of the maxim Princeps legibus solutus est understood natural or divine law to limit the prince's freedom from the statutes. See Tierney, supra, at 390-394; Pennington, supra, at 206-208; J. Canning, The Political Thought of Baldus de Ubaldis 74-79 (1987).
7 A better formulation would have clarified that sovereignty resided in the King in Parliament, which was the dominant view by the later 17th century. See, e. g., G. Wood, The Creation of the American Republic, 1776-1787, p. 347 (1969).
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