2.23. CHAP. XXIII
Of the PUBLIC MINISTERS of Sovereign Power
IN THE last chapter I have spoken of the similar parts of a
Commonwealth: in this I shall speak of the parts organical, which
are public ministers.
A public minister is he that by the sovereign, whether a monarch
or an assembly, is employed in any affairs, with authority to
represent in that employment the person of the Commonwealth. And
whereas every man or assembly that hath sovereignty representeth two
persons, or, as the more common phrase is, has two capacities, one
natural and another politic; as a monarch hath the person not only
of the Commonwealth, but also of a man, and a sovereign assembly
hath the person not only of the Commonwealth, but also of the
assembly: they that be servants to them in their natural capacity
are not public ministers; but those only that serve them in the
administration of the public business. And therefore neither ushers,
nor sergeants, nor other officers that wait on the assembly for no
other purpose but for the commodity of the men assembled, in an
aristocracy or democracy; nor stewards, chamberlains, cofferers, or
any other officers of the household of a monarch, are public ministers
in a monarchy.
Of public ministers, some have charge committed to them of a general
administration, either of the whole dominion or of a part thereof.
Of the whole, as to a protector, or regent, may be committed by the
predecessor of an infant king, during his minority, the whole
administration of his kingdom. In which case, every subject is so
far obliged to obedience as the ordinances he shall make, and the
commands he shall give, be in the king's name, and not inconsistent
with his sovereign power. Of a part, or province; as when either a
monarch or a sovereign assembly shall give the general charge
thereof to a governor, lieutenant, prefect or viceroy: and in this
case also, every one of that province is obliged to all he shall do in
the name of the sovereign, and that not incompatible with the
sovereign's right. For such protectors, viceroys, and governors have
no other right but what depends on the sovereigns will; and no
commission that can be given them can be interpreted for a declaration
of the will to transfer the sovereignty, without express and
perspicuous words to that purpose. And this kind of public ministers
resembleth the nerves and tendons that move the several limbs of a
body natural.
Others have special administration; that is to say, charges of
some special business, either at home or abroad: as at home, first,
for the economy of a Commonwealth, they that have authority concerning
the treasury, as tributes, impositions, rents, fines, or whatsoever
public revenue, to collect, receive, issue, or take the accounts
thereof, are public ministers: ministers, because they serve the
person representative, and can do nothing against his command, nor
without his authority; public, because they serve him in his political
capacity.
Secondly, they that have authority concerning the militia; to have
the custody of arms, forts, ports; to levy, pay, or conduct
soldiers; or to provide for any necessary thing for the use of war,
either by land or sea, are public ministers. But a soldier without
command, though he fight for the Commonwealth, does not therefore
represent the person of it; because there is none to represent it
to. For every one that hath command represents it to them only whom he
commandeth.
They also that have authority to teach, or to enable others to teach
the people their duty to the sovereign power, and instruct them in the
knowledge of what is just and unjust, thereby to render them more
apt to live in godliness and in peace amongst themselves, and resist
the public enemy, are public ministers: ministers, in that they do
it not by their own authority, but by another's; and public, because
they do it, or should do it, by no authority but that of the
sovereign. The monarch or the sovereign assembly only hath immediate
authority from God to teach and instruct the people; and no man but
the sovereign receiveth his power Dei gratiâ
simply; that is to say, from the favour of none but God: all other
receive theirs from the favour and providence of God and their sovereigns;
as in a monarchy Dei gratiâ et regis; or
Dei providentiâ et voluntate regis.
They also to whom jurisdiction is given are public ministers. For in
their seats of justice they represent the person of the sovereign; and
their sentence is his sentence; for, as hath been before declared, all
judicature is essentially annexed to the sovereignty; and therefore
all other judges are but ministers of him or them that have the
sovereign power. And as controversies are of two sorts, namely of fact
and of law; so are judgements, some of fact, some of law: and
consequently in the same controversy, there may be two judges, one
of fact, another of law.
And in both these controversies, there may arise a controversy
between the party judged and the judge; which, because they be both
subjects to the sovereign, ought in equity to be judged by men
agreed on by consent of both; for no man can be judge in his own
cause. But the sovereign is already agreed on for judged by them both,
and is therefore either to hear the cause, and determine it himself,
or appoint for judge such as they shall both agree on. And this
agreement is then understood to be made between them diverse ways;
as first, if the defendant be allowed to except against such of his
judges whose interest maketh him suspect them (for as to the
complainant, he hath already chosen his own judge); those which he
excepteth not against are judges he himself agrees on. Secondly, if he
appeal to any other judge, he can appeal no further; for his appeal is
his choice. Thirdly, if he appeal to the sovereign himself, and he
by himself, or by delegates which the parties shall agree on, give
sentence; that sentence is final: for the defendant is judged by his
own judges, that is to say, by himself.
These properties of just and rational judicature considered, I
cannot forbear to observe the excellent constitution of the courts
of justice established both for common and also for public pleas in
England. By common pleas, I mean those where both the complainant
and defendant are subjects: and by public (which are also called pleas
of the crown) those where the complainant is the sovereign. For
whereas there were two orders of men, whereof one was lords, the other
commons, the lords had this privilege, to have for judges in all
capital crimes none but lords; and of them, as many as would be
present; which being ever acknowledged as a privilege of favour, their
judges were none but such as they had themselves desired. And in all
controversies, every subject (as also in civil controversies the
lords) had for judges men of the country where the matter in
controversy lay; against which he might make his exceptions, till at
last twelve men without exception being agreed on, they were judged by
those twelve. So that having his own judges, there could be nothing
alleged by the party why the sentence should not be final. These
public persons, with authority from the sovereign power, either to
instruct or judge the people, are such members of the Commonwealth
as may fitly be compared to the organs of voice in a body natural.
Public ministers are also all those that have authority from the
sovereign to procure the execution of judgements given; to publish the
sovereigns commands; to suppress tumults; to apprehend and imprison
malefactors; and other acts tending to the conservation of the
peace. For every act they do by such authority is the act of the
Commonwealth; and their service answerable to that of the hands in a
body natural.
Public ministers abroad are those that represent the person of their
own sovereign to foreign states. Such are ambassadors, messengers,
agents, and heralds, sent by public authority, and on public business.
But such as are sent by authority only of some private party of a
troubled state, though they be received, are neither public nor
private ministers of the Commonwealth, because none of their actions
have the Commonwealth for author. Likewise, an ambassador sent from
a prince to congratulate, condole, or to assist at a solemnity; though
the authority be public, yet because the business is private, and
belonging to him in his natural capacity, is a private person. Also if
a man be sent into another country, secretly to explore their counsels
and strength; though both the authority and the business be public,
yet because there is none to take notice of any person in him, but his
own, he is but a private minister; but yet a minister of the
Commonwealth; and may be compared to an eye in the body natural. And
those that are appointed to receive the petitions or other
informations of the people, and are, as it were, the public ear, are
public ministers and represent their sovereign in that office.
Neither a counsellor, nor a council of state, if we consider with no
authority judicature or command, but only of giving advice to the
sovereign when it is required, or of offering it when it is not
required, is a public person. For the advice is addressed to the
sovereign only, whose person cannot in his own presence be represented
to him by another. But a body of counsellors are never without some
other authority, either of judicature or of immediate
administration: as in a monarchy, they represent the monarch in
delivering his commands to the public ministers: in a democracy, the
council or senate propounds the result of their deliberations to the
people, as a council; but when they appoint judges, or hear causes, or
give audience to ambassadors, it is in the quality of a minister of
the people: and in an aristocracy the council of state is the
sovereign assembly itself, and gives counsel to none but themselves.