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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