CHAPTER 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.

[Sidenote: Public minister who.]

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.

[Sidenote: Ministers for the general administration.]

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, præfect, 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 sovereign’s 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.

[Sidenote: For special administration, as for economy.]

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

_treasure_, 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.

[Sidenote: For instruction of the people.]

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_.

[Sidenote: For judicature.]

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 judgments, 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 judge 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 divers 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.

[Sidenote: For execution.]

Public ministers are also all those, that have authority from the

sovereign, to procure the execution of judgments given; to publish the

sovereign’s 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.

[Sidenote: Councillors without other employment than to advise are not

public ministers.]

Neither a councillor, nor a council of state, if we consider it with no

authority of 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 councillors, 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.

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The English works of Thomas Hobbes of Malmesbury, Volume 03 (of 11) · 第 8 / 21 章