Part II, Chapter XXIII

ON THE PUBLIC MINISTERS OF SOVEREIGN POWER

In the last chapter I spoke of the similar parts of a Common-wealth; in this one I shall speak of its organic parts, the public ministers.

A public minister is a person employed by the Sovereign, whether a monarch or an assembly, in some affair, with authority in that employment to represent the person of the Common-wealth. Every man or assembly possessing sovereignty represents two persons, or, as it is more commonly put, acts in two capacities: one natural and one political. A monarch has the person of a man as well as that of the Common-wealth, and a sovereign assembly has the person of the assembly as well as that of the Common-wealth. Those who serve them in their natural capacity, therefore, are not public ministers; only those who serve them in administering public business are. Thus neither the ushers, sergeants, and other officers who attend an assembly in an aristocracy or democracy merely for the convenience of those assembled, nor the stewards, chamberlains, treasurers, and other household officers of a monarch in a monarchy, are public ministers.

Some public ministers are entrusted with general administration, either of the whole dominion or of a part. The entire administration of a kingdom may, for example, be entrusted by the predecessor of an infant king to a protector or regent during the king's minority. In that case every subject is obliged to obey insofar as the ordinances the regent makes and the commands he gives are in the king's name and do not conflict with the king's sovereign power. A part or province may likewise be entrusted by a monarch or sovereign assembly to the general charge of a governor, lieutenant, prefect, or viceroy. Here too everyone in that province is obliged by everything the governor does in the Sovereign's name that is compatible with the Sovereign's Right. Such protectors, viceroys, and governors have no right except what depends on the Sovereign's will; and no commission granted to them can be interpreted as a declaration of the will to transfer sovereignty unless it uses express and unmistakable words to that effect. Public ministers of this kind resemble the nerves and tendons that move the several limbs of a natural body.

Others have special administration: responsibility for some particular business, at home or abroad. At home, first, in the economy of a Common-wealth, those authorized to collect, receive, disburse, or audit the accounts of its treasury—tributes, duties, rents, fines, or any other public revenue—are public ministers. They are ministers because they serve the representative person and can do nothing against his command or without his authority; they are public because they serve him in his political capacity.

Second, those authorized in matters of military force to keep arms, forts, and ports; to levy, pay, or lead soldiers; or to provide anything needed for war on land or sea, are public ministers. But a soldier who has no command, even if he fights for the Common-wealth, does not on that account represent its person: there is no one to whom he represents it. Anyone who commands represents it only to those under his command.

Those authorized to teach the people their duty to the Sovereign Power, or to empower others to teach it, and to instruct them in what is just and unjust—making them better able to live in godliness and peace with one another and to resist the public enemy—are also public ministers. They are ministers because they act by another's authority, not their own; and public because they act, or should act, by no authority but the Sovereign's. Only the monarch or sovereign assembly has immediate authority from God to teach and instruct the people. No one but the Sovereign receives power simply Dei Gratia, that is, by the favor of God alone. Everyone else receives it by the favor and providence of God and of their sovereigns: in a monarchy, Dei Gratia & Regis, or Dei Providentia & Voluntate Regis.

Those to whom jurisdiction is given are public ministers too. In their courts they represent the person of the Sovereign, and their sentence is his sentence. For, as I have explained, all jurisdiction is essentially attached to sovereignty; all other judges are therefore ministers of the person or persons who possess Sovereign Power. And since controversies are of two kinds, those of fact and those of law, judgments too may concern either fact or law. Consequently, a single controversy may have two judges, one of fact and another of law.

In either sort of controversy, a dispute may arise between the party judged and the judge. Because both are subjects of the Sovereign, equity requires that it be judged by persons to whom both consent: no one can be judge in his own cause. But both have already agreed to the Sovereign as judge. He must therefore hear and decide the cause himself, or appoint as judge someone to whom both parties agree. Their agreement can be understood as made in several ways. First, if the defendant is allowed to challenge judges whose interests make them suspect to him—the complainant having already chosen his own judge—those whom he does not challenge are judges to whom he himself agrees. Second, if he appeals to another judge, he can appeal no further, since his appeal is his choice. Third, if he appeals to the Sovereign himself, and the Sovereign pronounces sentence either in person or through delegates accepted by both parties, that sentence is final: the defendant has been judged by judges of his own choosing, and thus by himself.

Considering these properties of just and rational judgment, I cannot refrain from noting the excellent constitution of the courts of justice established in England for both common and public pleas. By common pleas I mean those in which complainant and defendant are both subjects; by public pleas, also called pleas of the Crown, those in which the complainant is the Sovereign. Of the two orders of people, Lords and Commons, the Lords had the privilege of being judged in every capital crime only by Lords, as many of them as wished to be present. Since this was always acknowledged as a privilege granted in their favor, their judges were none but those they had themselves desired. In every controversy, each subject—and the Lords as well, in civil controversies—had as judges men from the district where the matter at issue lay. He could challenge them until twelve men against whom he had no objection were agreed upon, and those twelve judged him. Having judges of his own choosing, the party could offer no reason why their sentence should not be final. These public persons, authorized by the Sovereign Power to instruct or judge the people, may fittingly be compared to the organs of voice in a natural body.

Public ministers also include all those authorized by the Sovereign to enforce judgments rendered, publish the Sovereign's commands, suppress disturbances, apprehend and imprison offenders, and perform other acts tending to preserve peace. Every act they perform under such authority is an act of the Common-wealth; their service corresponds to that of the hands in a natural body.

Public ministers abroad are those who represent the person of their own Sovereign to foreign states: ambassadors, messengers, agents, and heralds sent by public authority on public business.

But persons sent only on the authority of some private party within a troubled state, even if received, are neither public nor private ministers of the Common-wealth, since the Common-wealth is the author of none of their actions. Likewise, an ambassador sent by a prince to offer congratulations or condolences, or to attend a solemn occasion, is a private person: though his authority is public, his business is private and belongs to the prince in his natural capacity. Again, someone secretly sent into another country to investigate its counsels and strength is only a private minister, though still a minister of the Common-wealth: his authority and business are public, but no one there recognizes in him any person except his own. He may be compared to an eye in the natural body. Those appointed to receive the people's petitions or other information, serving as a kind of public ear, are public ministers and represent their Sovereign in that office.

Neither a counselor nor a council of state is a public person if we consider it as possessing no authority to judge or command, but only to advise the Sovereign when asked, or to offer advice unasked. Advice is addressed solely to the Sovereign, and another cannot represent his person to him in his own presence. But a body of counselors is never without some other authority, either to judge or to administer directly. In a monarchy, they represent the monarch when they deliver his commands to public ministers. In a democracy, the council or senate proposes the conclusions of its deliberations to the people as a council; but when it appoints judges, hears causes, or receives ambassadors, it acts as a minister of the people. In an aristocracy, the council of state is itself the sovereign assembly and advises no one but itself.

CHAPTER XXIV. ON THE NUTRITION AND PROCREATION OF A COMMON-WEALTH

OF THE PUBLIC MINISTERS OF SOVEREIGN POWER

In the last chapter I described the similar parts of a Common-wealth. Here I will describe its organs, which are public ministers.

A public minister is someone the Sovereign, whether a monarch or an assembly, employs in an activity with authority to represent the Common-wealth in that work. Every person or assembly holding Sovereignty represents two persons, or, as people more commonly say, acts in two capacities: one natural and one political. A monarch represents both the Common-wealth and an individual human being. A Sovereign Assembly represents both the Common-wealth and the assembly itself. Those serving sovereigns in their natural capacity are not public ministers. Only those who serve in the management of public business are. Thus ushers, sergeants, and other officers who attend an assembly merely for the convenience of its members in an aristocracy or democracy are not public ministers. Neither are the stewards, chamberlains, treasurers, or other household officers of a monarch in a monarchy.

Some public ministers are entrusted with general administration of the whole territory or part of it. For example, the predecessor of a child king may appoint a protector or regent to administer the whole kingdom while the king is underage. Subjects must obey such a regent's ordinances and commands insofar as they are issued in the king's name and do not conflict with the king's Sovereign Power. A monarch or Sovereign Assembly may also give a governor, lieutenant, prefect, or viceroy general charge of a province. People in that province must obey everything this minister does in the Sovereign's name that is consistent with the Sovereign's Right. Protectors, viceroys, and governors have no rights except those depending on the Sovereign's will. No commission given to them can be read as expressing a will to transfer Sovereignty unless it says so explicitly and clearly. These public ministers resemble the nerves and tendons that move the different limbs of a natural body.

Other ministers carry out specific duties, at home or abroad. At home, first, there is the management of the Common-wealth's finances. People authorized to collect, receive, pay out, or audit the treasury's revenues, including tributes, taxes, rents, fines, and any other public income, are public ministers. They are ministers because they serve the representative person and can do nothing without that person's authority or against that person's command. They are public because they serve the representative in a political capacity.

Second, there are those with authority over the military: to guard weapons, forts, and ports; recruit, pay, or lead soldiers; or provide anything needed for war by land or sea. They are public ministers. But an ordinary soldier with no command does not represent the Common-wealth merely by fighting for it. There is no one to whom that soldier represents it. A commander represents the Common-wealth only to the people under that command.

People authorized to teach, or to authorize others to teach, the people their duty toward the Sovereign Power are also public ministers. They teach people what is just and unjust, helping them live in godliness and peace with each other and resist public enemies. They are ministers because they act under someone else's authority, not their own. They are public because the authority they use, or should use, comes only from the Sovereign. Only the monarch or Sovereign Assembly receives immediate authority from God to teach and instruct the people. Only the Sovereign receives power simply Dei Gratia, meaning through the favor of God alone. Everyone else receives power through God's favor and providence and through their Sovereign's favor. In a monarchy, their authority comes Dei Gratia & Regis, or Dei Providentia & Voluntate Regis.

Those given jurisdiction are also public ministers. On the bench they represent the Sovereign, and their sentence is the Sovereign's sentence. As I have explained, all judicial authority belongs by its nature to Sovereignty. Every other judge is a minister of whoever holds Sovereign Power. Disputes may concern either facts or law, and decisions may therefore concern facts or law. A single dispute may accordingly have two judges: one for the facts and another for the law.

In either kind of dispute, another dispute may arise between the person being judged and the judge. Because both are subjects of the Sovereign, fairness requires their dispute to be decided by people they both agree on: no one can judge his own case. Both parties have already agreed to the Sovereign as judge. The Sovereign should therefore hear and decide the matter personally or appoint a judge on whom they both agree. Such agreement can be established in different ways. First, the defendant may be allowed to object to judges whose interests make them seem biased. The complainant has already chosen his own judge, and the judges the defendant does not object to count as his choice. Second, if the defendant appeals to another judge, he cannot appeal further, because that appeal was his choice. Third, if he appeals to the Sovereign personally, and the Sovereign gives judgment either directly or through delegates agreed on by both parties, the judgment is final. The defendant has been judged by judges of his own choosing, which amounts to being judged by himself.

Considering these features of fair and reasonable judgment, I must point out how well the courts of justice in England are organized for both common and public pleas. By common pleas I mean cases where both complainant and defendant are subjects. By public pleas, also called pleas of the Crown, I mean cases where the Sovereign is the complainant. There were two orders of people, Lords and Commons. The Lords had the privilege of being judged in all capital cases by Lords alone, with as many attending as wished to do so. This was always recognized as a privilege granted in their favor, so their judges were people they had asked for. In all disputes, every subject, and the Lords too in civil disputes, was judged by people from the country where the dispute arose. The defendant could object to them until Twelve people to whom he had no objection had been agreed on. Those twelve then judged him. Because he had judges of his own choosing, he could give no reason why their sentence should not be final. These public persons who are authorized by the Sovereign Power to instruct or judge people can be compared to the organs of speech in a natural body.

Public ministers also include everyone authorized by the Sovereign to enforce judgments, announce Sovereign commands, put down riots, arrest and imprison offenders, and do other things that preserve peace. Every act they perform under this authority is an act of the Common-wealth. Their work is like the work of the hands in a natural body.

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

But people sent only under the authority of a private party in a troubled state are not public or private ministers of the Common-wealth, even if they are received. The Common-wealth authorizes none of their acts. Likewise, an ambassador a prince sends to offer congratulations or condolences or to attend a ceremony is a private person. The authority for the visit is public, but its purpose is private and concerns the prince in his natural capacity. If someone is secretly sent to another country to investigate its plans and strength, both the authority and the business are public. But since no one recognizes him as acting for any person other than himself, he is only a private minister, though still a minister of the Common-wealth. He can be compared to an eye in a natural body. People appointed to receive petitions or other information from the people act as the public ear. They are public ministers and represent their Sovereign in that role.

A counselor or council of state is not a public person if it has no power to judge or command and can only give the Sovereign advice, whether asked for or not. Advice is addressed to the Sovereign alone. No one else can represent the Sovereign to the Sovereign in the Sovereign's own presence. A body of counselors, however, always has some other authority, whether to judge or to administer directly. In a monarchy they represent the monarch when passing the monarch's commands to public ministers. In a democracy, the council or senate presents the results of its deliberations to the people in its capacity as a council. But when it appoints judges, hears cases, or receives ambassadors, it acts as a minister of the people. In an aristocracy the council of state is itself the Sovereign Assembly, and its members give advice only to themselves.

CHAPTER XXIV. OF THE NOURISHMENT AND REPRODUCTION OF A COMMON-WEALTH