Public Officials Who Exercise Sovereign Power

In the last Chapter I have spoken of the Similar parts of a Common-wealth; In this I shall speak of the parts Organicall, which are Publique Ministers.

In the last chapter, I discussed the uniform parts of a commonwealth. In this chapter, I will discuss the commonwealth’s organs, which are its public ministers.

A PUBLIQUE MINISTER, is he, that by the Soveraign, (whether a Monarch, or an Assembly,) is employed in any affaires, with Authority to represent in that employment, the Person of the Common-wealth. And whereas every man, or assembly that hath Soveraignty, representeth two Persons, or (as the more common phrase is) has two Capacities, one Naturall, and another Politique, (as a Monarch, hath the person not onely of the Common-wealth, but also of a man; and a Soveraign Assembly hath the Person not onely of the Common-wealth, but also of the Assembly); they that be servants to them in their naturall Capacity, are not Publique Ministers; but those onely that serve them in the Administration of the Publique businesse. And therefore neither Ushers, nor Sergeants, nor other Officers that waite 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 houshold of a Monarch, are Publique Ministers in a Monarchy.

A PUBLIC MINISTER is someone employed by the sovereign, whether a monarch or an assembly, to handle some business. The minister has authority to represent the state in that work. Every person or assembly holding sovereign power represents two persons, or, more commonly, acts in two capacities: natural and political. A monarch represents not only the state but also himself as a man. A sovereign assembly represents not only the state but also itself as an assembly. Those who serve sovereigns in their natural capacity are not public ministers. Only those who serve sovereigns in conducting public business are public ministers. So, in an aristocracy or democracy, ushers, sergeants, and other attendants are not public ministers if they serve only the convenience of the assembled members. Nor, in a monarchy, are stewards, chamberlains, treasurers, or any other officers of the monarch’s household public ministers.

Of Publique 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 bee committed by the Predecessor of an Infant King, during his minority, the whole Administration of his Kingdome. 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 Kings name, and not inconsistent with his Soveraigne Power. Of a Part, or Province; as when either a Monarch, or a Soveraign Assembly, shall give the generall charge thereof to a Governour, Lieutenant, Praefect, or Vice-Roy: And in this case also, every one of that Province, is obliged to all he shall doe in the name of the Soveraign, and that not incompatible with the Soveraigns Right. For such Protectors, Vice-Roys, and Governours, have no other right, but what depends on the Soveraigns Will; and no Commission that can be given them, can be interpreted for a Declaration of the will to transferre the Soveraignty, without expresse and perspicuous words to that purpose. And this kind of Publique Ministers resembleth the Nerves, and Tendons that move the severall limbs of a body naturall.

Some public ministers are entrusted with general administration, either of the whole realm or of part of it. For the whole realm, a child king’s predecessor may entrust a Protector or Regent with administering the kingdom during the king’s minority. In this case, every subject must obey the Protector’s or Regent’s laws and commands only under certain conditions. They must be issued in the king’s name and must not conflict with his sovereign power. For a part or province, a monarch or sovereign assembly may entrust its general administration to a Governor, Lieutenant, Prefect, or Viceroy. In this case too, everyone in that province must obey everything the official does in the sovereign’s name. But those actions must not conflict with the sovereign’s rights. For such Protectors, Viceroys, and Governors have no authority except what depends on the sovereign’s will. No commission given to them can be understood as declaring an intention to transfer sovereignty without explicit and clear wording. Public ministers of this kind resemble the nerves and tendons that move the different limbs of a human body.

Others have speciall Administration; that is to say, charges of some speciall businesse, either at home, or abroad: As at home, First, for the Oeconomy of a Common-wealth, They that have Authority concerning the Treasure, as Tributes, Impositions, Rents, Fines, or whatsoever publique revenue, to collect, receive, issue, or take the Accounts thereof, are Publique Ministers: Ministers, because they serve the Person Representative, and can doe nothing against his Command, nor without his Authority: Publique, because they serve him in his Politicall Capacity.

Others have specific administrative duties, meaning responsibility for particular business, either at home or abroad. At home, first consider the management of a commonwealth’s finances. Those authorized to handle the treasury are public ministers. Their duties include collecting, receiving, or paying out taxes, levies, rents, fines, or any other public revenue, or auditing accounts. They are ministers because they serve the representative of the commonwealth. They can do nothing against his commands or without his authority. They are public ministers because they serve him in his political role.

Secondly, they that have Authority concerning the Militia; to have the custody of Armes, Forts, Ports; to Levy, Pay, or Conduct Souldiers; or to provide for any necessary thing for the use of war, either by Land or Sea, are publique Ministers. But a Souldier without Command, though he fight for the Common-wealth, 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.

Secondly, those with authority over military matters are public officials. Their duties include guarding weapons, forts, and ports, and recruiting, paying, or commanding soldiers. They may also provide anything necessary for war on land or at sea. But a soldier without command does not represent the state, even though he fights for the state. This is because he has no one to whom he represents the state. For anyone with command represents the state only to those he commands.

They also that have authority to teach, or to enable others to teach the people their duty to the Soveraign Power, and instruct them in the knowledge of what is just, and unjust, thereby to render them more apt to live in godlinesse, and in peace among themselves, and resist the publique enemy, are Publique Ministers: Ministers, in that they doe it not by their own Authority, but by anothers; and Publique, because they doe it (or should doe it) by no Authority, but that of the Soveraign. The Monarch, or the Soveraign Assembly only hath immediate Authority from God, to teach and instruct the people; and no man but the Soveraign, receiveth his power Dei Gratia 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 Soveraigns; as in a Monarchy Dei Gratia & Regis; or Dei Providentia & Voluntate Regis.

Those authorized to teach people their duty to the sovereign power, or to authorize others to teach, are also public ministers. Their teaching also explains what is just and unjust. Its purpose is to help people live more godly lives, live peacefully together, and resist the public enemy. These teachers are ministers because they act not on their own authority, but on someone else’s. They are public ministers because they act, or should act, only on the sovereign’s authority. Only the monarch or sovereign assembly has authority directly from God to teach and instruct the people. No one but the sovereign receives power Dei Gratia without qualification, meaning through the favor of God alone. All others receive their power through God’s favor and providence, and through the favor of their sovereigns. Thus, in a monarchy, their power is Dei Gratia & Regis, or Dei Providentia & Voluntate Regis. These mean “by the grace of God and the king” and “by God’s providence and the king’s will.”

They also to whom Jurisdiction is given, are Publique Ministers. For in their Seats of Justice they represent the person of the Soveraign; and their Sentence, is his Sentence; For (as hath been before declared) all Judicature is essentially annexed to the Soveraignty; and therefore all other Judges are but Ministers of him, or them that have the Soveraign 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 controversie, there may be two Judges, one of Fact, another of Law.

Those given authority to judge are also public ministers. For when they sit in court, they represent the sovereign, and their ruling is the sovereign’s ruling. This is because, as explained earlier, all judicial authority is an essential part of sovereignty. So all other judges are merely ministers of the person or people who hold sovereign power. And just as disputes are of two kinds, concerning facts or law, so judgments concern either facts or law. Consequently, the same dispute may have two judges, one deciding the facts and another deciding the law.

And in both these controversies, there may arise a controversie between the party Judged, and the Judge; which because they be both Subjects to the Soveraign, 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 Soveraign is already agreed on for Judge by them both, and is therefore either to heare 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 wayes; as first, if the Defendant be allowed to except against such of his Judges, whose interest maketh him suspect them, (for as to the Complaynant he hath already chosen his own Judge,) those which he excepteth not against, are Judges he himself agrees on. Secondly, if he appeale to any other Judge, he can appeale no further; for his appeale is his choice. Thirdly, if he appeale to the Soveraign himself, and he by himself, or by Delegates which the parties shall agree on, give Sentence; that Sentence is finall: for the Defendant is Judged by his own Judges, that is to say, by himself.

In both these disputes, a disagreement may arise between the person being judged and the judge. Because both are subjects of the sovereign, fairness requires that judges accepted by both sides settle the disagreement. For no one can be a judge in their own case. But both sides have already accepted the sovereign as judge. The sovereign must therefore hear and decide the case himself, or appoint judges whom both sides accept. This agreement can be understood in several ways. First, the defendant may be allowed to object to judges whose interests give him reason to distrust them. (The complainant has already chosen his own judge.) In that case, the defendant accepts the judges he does not object to. Second, if the defendant appeals to another judge, he can appeal no further, because his appeal is his choice. Third, the defendant may appeal to the sovereign himself. If the sovereign then gives judgment himself, or through representatives accepted by both parties, that judgment is final. For the defendant is judged by judges of his own choosing, which means he is judged by himself.

These properties of just and rationall Judicature considered, I cannot forbeare to observe the excellent constitution of the Courts of Justice, established both for Common, and also for Publique Pleas in England. By Common Pleas, I meane those, where both the Complaynant and Defendant are Subjects: and by Publique, (which are also called Pleas of the Crown) those, where the Complaynant is the Soveraign. For whereas there were two orders of men, whereof one was Lords, the other Commons; The Lords had this Priviledge, to have for Judges in all Capitall crimes, none but Lords; and of them, as many as would be present; which being ever acknowledged as a Priviledge of favour, their Judges were none but such as they had themselves desired. And in all controversies, every Subject (as also in civill controversies the Lords) had for Judges, men of the Country where the matter in controversie 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 alledged by the party, why the sentence should not be finall, These publique persons, with Authority from the Soveraign Power, either to Instruct, or Judge the people, are such members of the Common-wealth, as may fitly be compared to the organs of Voice in a Body naturall.

Having considered these features of fair and reasonable judging, I cannot help noting the excellent structure of England’s courts. These courts were established for both Common Pleas and Public Pleas. By Common Pleas, I mean cases where both the complainant and the defendant are subjects. By Public Pleas, also called Pleas of the Crown, I mean cases where the sovereign is the complainant. There were two classes of people, Lords and Commons. The Lords had the privilege of being judged only by Lords in all crimes punishable by death. As many Lords as wished could attend as judges. Since this privilege was always recognized as a special favor, their judges were only those they themselves had requested. And in all disputes, every subject had judges from the district where the disputed matter arose. The Lords also had these local judges in civil disputes. A subject could object to proposed judges until twelve men had been agreed on without objection. Those twelve then judged the case. So, having judges of his own choosing, the subject could offer no reason why the judgment should not be final. These public officials have authority from the sovereign power either to instruct the people or to judge them. As members of the commonwealth, these officials may fittingly be compared to the organs of speech in a natural body.

Publique Ministers are also all those, that have Authority from the Soveraign, to procure the Execution of Judgements given; to publish the Soveraigns Commands; to suppresse Tumults; to apprehend, and imprison Malefactors; and other acts tending to the conservation of the Peace. For every act they doe by such Authority, is the act of the Common-wealth; and their service, answerable to that of the Hands, in a Bodie naturall.

Public ministers also include all those authorized by the sovereign to carry out court judgments. Their duties include announcing the sovereign’s commands, suppressing riots, arresting and imprisoning offenders, and other acts that preserve peace. For every act these ministers perform under that authority is an act of the commonwealth. Their service corresponds to that of the hands in a human body.

Publique Ministers abroad, are those that represent the Person of their own Soveraign, to forraign States. Such are Ambassadors, Messengers, Agents, and Heralds, sent by publique Authoritie, and on publique Businesse.

Public ministers abroad represent their own sovereign before foreign states. They include ambassadors, messengers, agents, and heralds sent by public authority on public business.

But such as are sent by Authoritie only of some private partie of a troubled State, though they be received, are neither Publique, nor Private Ministers of the Common-wealth; because none of their actions have the Common-wealth for Author. Likewise, an Ambassador sent from a Prince, to congratulate, condole, or to assist at a solemnity, though Authority be Publique; yet because the businesse is Private, and belonging to him in his naturall 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 Businesse be Publique; 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 Common-wealth; and may be compared to an Eye in the Body naturall. And those that are appointed to receive the Petitions or other informations of the People, and are as it were the publique Eare, are Publique Ministers, and represent their Soveraign in that office.

But people sent only by the authority of some private faction in a troubled state are not the commonwealth’s ministers. Even if received, they are neither its public nor its private ministers, because the commonwealth authorizes none of their actions. Likewise, a prince may send an ambassador to offer congratulations, express sympathy, or attend a ceremony. Although the ambassador’s authority is public, the business is private and concerns the prince as an individual. The ambassador therefore acts as a private person. Also, a man may be sent into another country secretly to discover its plans and strength. Although both his authority and his business are public, no one recognizes him as representing anyone but himself. He is therefore only a private minister, but still a minister of the commonwealth. He may be compared to an eye in the natural body. Those appointed to receive the people’s petitions or other information are, as it were, the public ear. They are public ministers and represent their sovereign in that office.

Neither a Counsellor, nor a Councell of State, if we consider it with no Authority of Judicature or Command, but only of giving Advice to the Soveraign when it is required, or of offering it when it is not required, is a Publique Person. For the Advice is addressed to the Soveraign 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 Publique Ministers: In a Democracy, the Councell, or Senate propounds the Result of their deliberations to the people, as a Councell; but when they appoint Judges, or heare Causes, or give Audience to Ambassadors, it is in the quality of a Minister of the People: And in an Aristocracy the Councell of State is the Soveraign Assembly it self; and gives counsell to none but themselves.

Neither an adviser nor a council of state is a public representative if its only role is to advise the sovereign. This applies when the adviser or council has no authority to judge or command. The advice may be requested by the sovereign or offered without being requested. For the advice is addressed only to the sovereign. No one can represent the sovereign to the sovereign himself while he is present. But a body of advisers always has some other authority, either to judge or to administer affairs directly. In a monarchy, for example, the advisers represent the monarch by delivering his commands to public officials. In a democracy, the council or senate acts as an advisory body when presenting its conclusions to the people. But when the council appoints judges, hears cases, or receives ambassadors, it acts as an official serving the people. And in an aristocracy, the council of state is itself the sovereign assembly and advises no one but its own members.