CASE OF THE POST-NATI OF SCOTLAND. 145 



equity, that kings were more ancient than lawgivers, 

 that the first submissions were simple, and upon con 

 fidence to the person of kings, and that the alle 

 giance of subjects to hereditary monarchies can no 

 more be said to consist by laws, than the obedience 

 of children to parents. 



That allegiance continueth after laws, I will only 

 put the case, which was remembered by two great 

 judges in a great assembly, the one of them now with 

 God : which was, that if a king of England should 

 be expulsed his kingdom, and some particular sub 

 jects should follow him in flight or exile in foreign 

 parts, and any of them there should conspire his 

 death ; that upon his recovery of his kingdom, such 

 a subject might by the law of England be proceeded 

 with for treason committed and perpetrated at what 

 time he had no kingdom, and in place where the law 

 did not bind. 



That allegiance is in vigour and force where the 

 power of law hath a cessation, appeareth notably in 

 time of wars, for &quot; silent leges inter arma.&quot; And yet 

 the sovereignty and imperial power of the king is so 

 far from being then extinguished or suspended, as 

 contrariwise it is raised and made more absolute ; for 

 then he may proceed by his supreme authority, and 

 martial law, without observing formalities of the 

 laws of his kingdom. And therefore whosoever 

 speaketh of laws, and the king s power by laws, and 

 the subjects obedience or allegiance to laws, speak but 

 of one half of the crown. For Bracton, out of Jus 

 tinian, doth truly define the crown to consist of laws 



VOL. v. L 



