the monarchy as a merely
political institution, the scheme of prudent men to avoid confusion, and
confer the _minimum_ of personal authority on the reigning prince, the
principle of his irresponsibility seems to be better maintained. But the
question to which we are turning our eyes is not a political one; it
relates to the positive law and positive sentiments of the English
nation in the mediaeval period. And here I cannot put a few necessary
fictions grown up in the courts, such as, the king never dies, the king
can do no wrong, the king is everywhere, against the tenor of our
constitutional language, which implies an actual and active personality.
Mr. Allen acknowledges that the act against the Despensers under Edward
II., and re-confirmed after its repeal, for promulgating the doctrine
that allegiance had more regard to the crown than to the person of the
king, "seems to establish, as the deliberate opinion of the legislature,
that allegiance is due to the person of the king generally, and not
merely to his crown or politic capacity, so as to be released and
destroyed by his misgovernment of the kingdom" (p. 14); which, he adds,
is not easily reconcilable with the deposition of Richard II. But that
was accomplished by force, with whatever formalities it may have been
thought expedient to surround it.

We cannot, however, infer from the declaration of the legislature, that
allegiance is due to the king's person and not to his politic capacity,
any such consequence as that it is not, in any possible case, to be
released by his misgovernment. This was surely not in the spirit of any
parliament under Edward II. or Edward III.; and it is precisely because
allegiance is due to the person, that, upon either feudal or natural
principles, it might be cancelled by personal misconduct. A contrary
language was undoubtedly held under the Stuarts; but it was not that of
the mediaeval period.

The tenet of our law, that all the soil belongs theoretically to the
king, is undoubtedly an enormous fiction, and very repugnant to the
barbaric theory preserved by the Saxons, that all unappropriated land
belonged to the folk, and was unalienable without its consent.[475] It
was, however, but an extension of the feudal tenure to the whole
kingdom, and rested on the personality of feudal homage. William
established it more by his power than by any theory of lawyers; though
doubtless his successors often found lawyers as ready to shape the