As for other liberties, they depend on the silence of the law. In cases where the sovereign has prescribed no rule, there the subject hath the liberty to do, or forbear, according to his own discretion. And therefore such liberty is in some places more, and in some less; and in some times more, in other times less, according as they that have the sovereignty shall think most convenient. As for example, there was a time, when in England a man might enter into his own land, and dispossess such as wrongfully possessed it, by force. But in aftertimes, that liberty of forcible entry, was taken away by a statute made, by the king, in parliament. And in some places of the world, men have the liberty of many wives: in other places, such liberty is not allowed.
If a subject have a controversy with his sovereign, of debt, or of right of possession of lands or goods, or concerning any service required at his hands, or concerning any penalty, corporal, or pecuniary, grounded on a precedent law; he hath the same liberty to sue for his right, as if it were against a subject; and before such judges, as are appointed by the sovereign. For seeing the sovereign demandeth by force of a former law, and not by virtue of his power; he declareth thereby, that he requireth no more, than shall appear to be due by that law. The suit therefore is not contrary to the will of the sovereign; and consequently the subject hath the liberty to demand the hearing of his cause; and sentence, according to that law. But if he demand, or take anything by pretence of his power; there lieth, in that case, no action of law; for all that is done by him in virtue of his power, is done by the authority of every subject, and consequently he that brings an action against the sovereign, brings it against himself.
If a monarch, or sovereign assembly, grant a liberty to all, or any of his subjects, which grant standing, he is disabled to provide for their safety, the grant is void; unless he directly renounce, or transfer the sovereignty to another. For in that he might openly, if it had been his will, and in plain terms, have renounced, or transferred it, and did not; it is to be understood it was not his will, but that the grant proceeded from ignorance of the repugnancy between such a liberty and the sovereign power; and therefore the sovereignty is still retained; and consequently all those powers, which are necessary to the exercising thereof; such as are the power of war, and peace, of judicature, of appointing officers, and councillors, of levying money, and the rest named in the 18th chapter.
The obligation of subjects to the sovereign, is understood to last as long, and no longer, than the power lasteth, by which he is able to protect them. For the right men have by nature to protect themselves, when none else can protect them, can by no covenant be relinquished. The sovereignty is the soul of the commonwealth; which once departed from the body, the members do no more receive their motion from it. The end of obedience is protection; which, wheresoever a man seeth it, either in his own, or in another’s sword, nature applieth his obedience to it, and his endeavour to maintain it. And though sovereignty, in the intention of them that make it, be immortal; yet is it in its own nature, not only subject to violent death, by foreign war; but also through the ignorance, and passions of men, it hath in it, from the very institution, many seeds of a natural mortality, by intestine discord.
If a subject be taken prisoner in war; or his person, or his means of life be within the guards of the enemy, and hath his life and corporal liberty given him, on condition to be subject to the victor, he hath liberty to accept the condition; and having accepted it, is the subject of him that took him; because he had no other way to preserve himself. The case is the same, if he be detained on the same terms, in a foreign country. But if a man be held in prison, or bonds, or is not trusted with the liberty of his body; he cannot be understood to be bound by covenant to subjection; and therefore may, if he can, make his escape by any means whatsoever.
If a monarch shall relinquish the sovereignty, both for himself, and his heirs; his subjects return to the absolute liberty of nature; because, though nature may declare who are his sons, and who are the nearest of his kin; yet it dependeth on his own will, as hath been said in the precedent chapter, who shall be his heir. If therefore he will have no heir, there is no sovereignty, nor subjection. The case is the same, if he die without known kindred, and without declaration of his heir. For then there can no heir be known, and consequently no subjection be due.
If the sovereign banish his subject; during the banishment, he is not subject. But he that is sent on a message, or hath leave to travel, is still subject; but it is, by contract between sovereigns, not by virtue of the covenant of subjection. For whosoever entereth into another’s dominion, is subject to all the laws thereof; unless he have a privilege by the amity of the sovereigns, or by special licence.
If a monarch subdued by war, render himself subject to the victor; his subjects are delivered from their former obligation, and become obliged to the victor. But if he be held prisoner, or have not the liberty of his own body; he is not understood to have given away the right of sovereignty; and therefore his subjects are obliged to yield obedience to the magistrates formerly placed, governing not in their own name, but in his. For, his right remaining, the question is only of the administration; that is to say, of the magistrates and officers; which, if he have not means to name, he is supposed to approve those, which he himself had formerly appointed.
Having spoken of the generation, form, and power of a commonwealth, I am in order to speak next of the parts thereof. And first of systems, which resemble the similar parts, or muscles of a body natural. By SYSTEMS, I understand any numbers of men joined in one interest, or one business. Of which, some are regular, and some irregular. Regular are those, where one man, or assembly of men, is constituted representative of the whole number. All other are irregular.
Of regular, some are absolute, and independent, subject to none but their own representative: such are only commonwealths; of which I have spoken already in the five last precedent chapters. Others are dependent; that is to say, subordinate to some sovereign power, to which every one, as also their representative is subject.
Of systems subordinate, some are political, and some private. Political, otherwise called bodies politic, and persons in law, are those, which are made by authority from the sovereign power of the commonwealth. Private, are those, which are constituted by subjects amongst themselves, or by authority from a stranger. For no authority derived from foreign power, within the dominion of another, is public there, but private.
And of private systems, some are lawful; some unlawful. Lawful, are those which are allowed by the commonwealth: all other are unlawful. Irregular systems, are those which having no representative, consist only in concourse of people; which if not forbidden by the commonwealth, nor made on evil design, such as are conflux of people to markets, or shows, or any other harmless end, are lawful. But when the intention is evil, or (if the number be considerable), unknown, they are unlawful.
In bodies politic, the power of the representative is always limited: and that which prescribeth the limits thereof, is the power sovereign. For power unlimited, is absolute sovereignty. And the sovereign in every commonwealth, is the absolute representative of all the subjects; and therefore no other can be representative of any part of them, but so far forth, as he shall give leave. And to give leave to a body politic of subjects, to have an absolute representative to all intents and purposes, were to abandon the government of so much of the commonwealth, and to divide the dominion, contrary to their peace and defence; which the sovereign cannot be understood to do, by any grant, that does not plainly, and directly discharge them of their subjection. For consequences of words, are not the signs of his will, when other consequences are signs of the contrary; but rather signs of error, and misreckoning; to which all mankind is too prone.
The bounds of that power, which is given to the representative of a body politic, are to be taken notice of, from two things. One is their writ, or letters from the sovereign: the other is the law of the commonwealth.
For though in the institution or acquisition of a commonwealth, which is independent, there needs no writing, because the power of the representative has there no other bounds, but such as are set out by the unwritten law of nature; yet in subordinate bodies, there are such diversities of limitation necessary, concerning their businesses, times, and places, as can neither be remembered without letters, nor taken notice of, unless such letters be patent, that they may be read to them, and withal sealed, or testified, with the seals, or other permanent signs of the authority sovereign.
And because such limitation is not always easy, or perhaps possible to be described in writing; the ordinary laws, common to all subjects, must determine what the representative may lawfully do, in all cases, where the letters themselves are silent. And therefore,
In a body politic, if the representative be one man, whatsoever he does in the person of the body, which is not warranted in his letters, nor by the laws, is his own act, and not the act of the body, nor of any other member thereof besides himself: because further than his letters, or the laws limit, he representeth no man’s person, but his own. But what he does according to these, is the act of every one: for of the act of the sovereign every one is author, because he is their representative unlimited; and the act of him that recedes not from the letters of the sovereign, is the act of the sovereign, and therefore every member of the body is author of it.
But if the representative be an assembly; whatsoever that assembly shall decree, not warranted by their letters, or the laws, is the act of the assembly, or body politic, and the act of every one by whose vote the decree was made; but not the act of any man that being present voted to the contrary; nor of any man absent, unless he voted it by procuration. It is the act of the assembly, because voted by the major part; and if it be a crime, the assembly may be punished, as far forth as it is capable, as by dissolution, or forfeiture of their letters (which is to such artificial, and fictitious bodies, capital) or, if the assembly have a common stock, wherein none of the innocent members have propriety, by pecuniary mulct. For from corporal penalties nature hath exempted all bodies politic. But they that gave not their vote, are therefore innocent, because the assembly cannot represent any man in things unwarranted by their letters, and consequently are not involved in their votes.
If the person of the body politic being in one man, borrow money of a stranger, that is, of one that is not of the same body, (for no letters need limit borrowing, seeing it is left to men’s own inclinations to limit lending), the debt is the representative’s. For if he should have authority from his letters, to make the members pay what he borroweth, he should have by consequence the sovereignty of them; and therefore the grant were either void, as proceeding from error, commonly incident to human nature, and an insufficient sign of the will of the granter; or if it be avowed by him, then is the representer sovereign, and falleth not under the present question, which is only of bodies subordinate. No member therefore is obliged to pay the debt so borrowed, but the representative himself: because he that lendeth it, being a stranger to the letters, and to the qualification of the body, understandeth those only for his debtors, that are engaged: and seeing the representer can engage himself, and none else, has him only for debtor; who must therefore pay him, out of the common stock, if there be any, or, if there be none, out of his own estate.
If he come into debt by contract, or mulct, the case is the same.
But when the representative is an assembly, and the debt to a stranger; all they, and only they are responsible for the debt, that gave their votes to the borrowing of it, or to the contract that made it due, or to the fact for which the mulct was imposed; because every one of those in voting did engage himself for the payment: for he that is author of the borrowing, is obliged to the payment, even of the whole debt; though when paid by any one, he be discharged.
But if the debt be to one of the assembly, the assembly only is obliged to the payment, out of their common stock, if they have any: for having liberty of vote, if he vote the money shall be borrowed, he votes it shall be paid; if he vote it shall not be borrowed, or be absent, yet because in lending, he voteth the borrowing, he contradicteth his former vote, and is obliged by the latter, and becomes both borrower and lender, and consequently cannot demand payment from any particular man, but from the common treasure only; which failing he hath no remedy, nor complaint, but against himself, that being privy to the acts of the assembly, and to their means to pay, and not being enforced, did nevertheless through his own folly lend his money.
It is manifest by this, that in bodies politic subordinate, and subject to a sovereign power, it is sometimes not only lawful, but expedient, for a particular man to make open protestation against the decrees of the representative assembly, and cause their dissent to be registered, or to take witness of it; because otherwise they may be obliged to pay debts contracted, and be responsible for crimes committed by other men. But in a sovereign assembly, that liberty is taken away, both because he that protesteth there, denies their sovereignty; and also because whatsoever is commanded by the sovereign power, is as to the subject, though not so always in the sight of God, justified by the command: for of such command every subject is the author.
The variety of bodies politic, is almost infinite: for they are not only distinguished by the several affairs, for which they are constituted, wherein there is an unspeakable diversity; but also by the times, places, and numbers, subject to many limitations. And as to their affairs, some are ordained for government; as first, the government of a province may be committed to an assembly of men, wherein all resolutions shall depend on the votes of the major part; and then this assembly is a body politic, and their power limited by commission. This word province signifies a charge, or care of business, which he whose business it is, committeth to another man, to be administered for, and under him; and therefore when in one commonwealth there be divers countries, that have their laws distinct one from another, or are far distant in place, the administration of the government being committed to divers persons, those countries where the sovereign is not resident, but governs by commission, are called provinces. But of the government of a province, by an assembly residing in the province itself, there be few examples. The Romans who had the sovereignty of many provinces; yet governed them always by presidents, and prætors; and not by assemblies, as they governed the city of Rome, and territories adjacent. In like manner, when there were colonies sent from England, to plant Virginia, and Sommer-islands; though the governments of them here, were committed to assemblies in London, yet did those assemblies never commit the government under them to any assembly there, but did to each plantation send one governor. For though every man, where he can be present by nature, desires to participate of government; yet where they cannot be present, they are by nature also inclined, to commit the government of their common interest rather to a monarchical, than a popular form of government: which is also evident in those men that have great private estates; who when they are unwilling to take the pains of administering the business that belongs to them, chuse rather to trust one servant, than an assembly either of their friends or servants. But howsoever it be in fact, yet we may suppose the government of a province, or colony committed to an assembly: and when it is, that which in this place I have to say, is this; that whatsoever debt is by that assembly contracted; or whatsoever unlawful act is decreed, is the act only of those that assented, and not of any that dissented, or were absent, for the reasons before alleged. Also that an assembly residing out of the bounds of that colony whereof they have the government, cannot execute any power over the persons, or goods of any of the colony, to seize on them for debt, or other duty, in any place without the colony itself, as having no jurisdiction, nor authority elsewhere, but are left to the remedy, which the law of the place alloweth them. And though the assembly have right, to impose a mulct upon any of their members, that shall break the laws they make; yet out of the colony itself, they have no right to execute the same. And that which is said here, of the rights of an assembly, for the government of a province, or a colony, is appliable also to an assembly for the government of a town, an university, or a college, or a church, or for any other government over the persons of men.
And generally, in all bodies politic, if any particular member conceive himself injured by the body itself, the cognizance of his cause belongeth to the sovereign, and those the sovereign hath ordained for judges in such causes, or shall ordain for that particular cause; and not to the body itself. For the whole body is in this case his fellow-subject, which in a sovereign assembly, is otherwise: for there, if the sovereign be not judge, though in his own cause, there can be no judge at all.
In a body politic, for the well ordering of foreign traffic, the most commodious representative is an assembly of all the members; that is to say, such a one, as every one that adventureth his money, may be present at all the deliberations, and resolutions of the body, if they will themselves. For proofproof whereof, we are to consider the end, for which men that are merchants, and may buy and sell, export, and import their merchandize, according to their own discretions, do nevertheless bind themselves up in one corporation. It is true, there be few merchants, that with the merchandize they buy at home, can freight a ship, to export it; or with that they buy abroad, to bring it home; and have therefore need to join together in one society; where every man may either participate of the gain, according to the proportion of his adventure; or take his own, and sell what he transports, or imports, at such prices as he thinks fit. But this is no body politic, there being no common representative to oblige them to any other law, than that which is common to all other subjects. The end of their incorporating, is to make their gain the greater; which is done two ways; by sole buying, and sole selling, both at home, and abroad. So that to grant to a company of merchants to be a corporation, or body politic, is to grant them a double monopoly, whereof one is to be sole buyers; another to be sole sellers. For when there is a company incorporate for any particular foreign country, they only export the commodities vendible in that country; which is sole buying at home, and sole selling abroad. For at home there is but one buyer, and abroad but one that selleth: both which is gainful to the merchant, because thereby they buy at home at lower, and sell abroad at higher rates: and abroad there is but one buyer of foreign merchandize, and but one that sells them at home; both which again are gainful to the adventurers.
Of this double monopoly one part is disadvantageous to the people at home, the other to foreigners. For at home by their sole exportation they set what price they please on the husbandry, and handy-works of the people; and by the sole importation, what price they please on all foreign commodities the people have need of; both which are ill for the people. On the contrary, by the sole selling of the native commodities abroad, and sole buying the foreign commodities upon the place, they raise the price of those, and abate the price of these, to the disadvantage of the foreigner: for where but one selleth, the merchandize is the dearer; and where but one buyeth, the cheaper. Such corporations therefore are no other than monopolies; though they would be very profitable for a commonwealth, if being bound up into one body in foreign markets they were at liberty at home, every man to buy, and sell at what price he could.
The end then of these bodies of merchants, being not a common benefit to the whole body, which have in this case no common stock, but what is deducted out of the particular adventures, for building, buying, victualling and manning of ships, but the particular gain of every adventurer, it is reason that every one be acquainted with the employment of his own; that is, that every one be of the assembly, that shall have the power to order the same; and be acquainted with their accounts. And therefore the representative of such a body must be an assembly, where every member of the body may be present at the consultations, if he will.
If a body politic of merchants, contract a debt to a stranger by the act of their representative assembly, every member is liable by himself for the whole. For a stranger can take no notice of their private laws, but considereth them as so many particular men, obliged every one to the whole payment, till payment made by one dischargeth all the rest: but if the debt be to one of the company, the creditor is debtor for the whole to himself, and cannot therefore demand his debt, but only from the common stock, if there be any.
If the commonwealth impose a tax upon the body, it is understood to be laid upon every member proportionably to his particular adventure in the company. For there is in this case no other common stock, but what is made of their particular adventures.
If a mulct be laid upon the body for some unlawful act, they only are liable by whose votes the act was decreed, or by whose assistance it was executed; for in none of the rest is there any other crime but being of the body; which if a crime, because the body was ordained by the authority of the commonwealth, is not his.
If one of the members be indebted to the body, he may be sued by the body; but his goods cannot be taken, nor his person imprisoned by the authority of the body; but only by authority of the commonwealth: for if they can do it by their own authority, they can by their own authority give judgment that the debt is due; which is as much as to be judge in their own cause.
Those bodies made for the government of men, or of traffic, be either perpetual, or for a time prescribed by writing. But there be bodies also whose times are limited, and that only by the nature of their business. For example, if a sovereign monarch, or a sovereign assembly, shall think fit to give command to the towns, and other several parts of their territory, to send to him their deputies, to inform him of the condition, and necessities of the subjects, or to advise with him for the making of good laws, or for any other cause, as with one person representing the whole country, such deputies, having a place and time of meeting assigned them, are there, and at that time, a body politic, representing every subject of that dominion; but it is only for such matters as shall be propounded unto them by that man, or assembly, that by the sovereign authority sent for them; and when it shall be declared that nothing more shall be propounded, nor debated by them, the body is dissolved. For if they were the absolute representatives of the people, then were it the sovereign assembly; and so there would be two sovereign assemblies, or two sovereigns, over the same people; which cannot consist with their peace. And therefore where there is once a sovereignty, there can be no absolute representation of the people, but by it. And for the limits of how far such a body shall represent the whole people, they are set forth in the writing by which they were sent for. For the people cannot choose their deputies to other intent, than is in the writing directed to them from their sovereign expressed.
Private bodies regular, and lawful, are those that are constituted without letters, or other written authority, saving the laws common to all other subjects. And because they be united in one person representative, they are held for regular; such as are all families, in which the father, or master ordereth the whole family. For he obligeth his children, and servants, as far as the law permitteth, though not further, because none of them are bound to obedience in those actions, which the law hath forbidden to be done. In all other actions, during the time they are under domestic government, they are subject to their fathers, and masters, as to their immediate sovereigns. For the father and master, being before the institution of commonwealth, absolute sovereigns in their own families, they lose afterward no more of their authority, than the law of the commonwealth taketh from them.
Private bodies regular, but unlawful, are those that unite themselves into one person representative, without any public authority at all; such as are the corporations of beggars, thieves and gipsies, the better to order their trade of begging and stealing; and the corporations of men, that by authority from any foreign person, unite themselves in another’s dominion, for the easier propagation of doctrines, and for making a party, against the power of the commonwealth.
Irregular systems, in their nature but leagues, or sometimes mere concourse of people, without union to any particular design, not by obligation of one to another, but proceeding only from a similitude of wills and inclinations, become lawful, or unlawful, according to the lawfulness, or unlawfulness of every particular man’s design therein: and his design is to be understood by the occasion.
The leagues of subjects, because leagues are commonly made for mutual defence, are in a commonwealth, which is no more than a league of all the subjects together, for the most part unnecessary, and savour of unlawful design; and are for that cause unlawful, and go commonly by the name of factions, or conspiracies. For a league being a connexion of men by covenants, if there be no power given to any one man or assembly, as in the condition of mere nature, to compel them to performance, is so long only valid, as there ariseth no just cause of distrust: and therefore leagues between commonwealths, over whom there is no human power established, to keep them all in awe, are not only lawful, but also profitable for the time they last. But leagues of the subjects of one and the same commonwealth, where every one may obtain his right by means of the sovereign power, are unnecessary to the maintaining of peace and justice, and, in case the design of them be evil or unknown to the commonwealth, unlawful. For all uniting of strength by private men, is, if for evil intent, unjust; if for intent unknown, dangerous to the public, and unjustly concealed.
If the sovereign power be in a great assembly, and a number of men, part of the assembly, without authority, consult apart, to contrive the guidance of the rest; this is a faction, or conspiracy unlawful, as being a fraudulent seducing of the assembly for their particular interest. But if he, whose private interest is to be debated and judged in the assembly, make as many friends as he can; in him it is no injustice; because in this case he is no part of the assembly. And though he hire such friends with money, unless there be an express law against it, yet it is not injustice. For sometimes, as men’s manners are, justice cannot be had without money; and every man may think his own cause just, till it be heard, and judged.
In all commonwealths, if private men entertain more servants, than the government of his estate, and lawful employment he has for them requires, it is faction, and unlawful. For having the protection of the commonwealth, he needeth not the defence of private force. And whereas in nations not thoroughly civilized, several numerous families have lived in continual hostility, and invaded one another with private force; yet it is evident enough, that they have done unjustly; or else they had no commonwealth.
And as factions for kindred, so also factions for government of religion, as of Papists, Protestants, &c. or of state, as patricians, and plebeians of old time in Rome, and of aristocraticals and democraticals of old time in Greece, are unjust, as being contrary to the peace and safety of the people, and a taking of the sword out of the hand of the sovereign.
Concourse of people is an irregular system, the lawfulness, or unlawfulness, whereof dependeth on the occasion, and on the number of them that are assembled. If the occasion be lawful, and manifest, the concourse is lawful; as the usual meeting of men at church, or at a public show, in usual numbers: for if the numbers be extraordinarily great, the occasion is not evident; and consequently he that cannot render a particular and good account of his being amongst them, is to be judged conscious of an unlawful, and tumultuous design. It may be lawful for a thousand men, to join to a petition to be delivered to a judge, or magistrate; yet if a thousand men come to present it, it is a tumultuous assembly; because there needs but one or two for that purpose. But in such cases as these, it is not a set number that makes the assembly unlawful, but such a number, as the present officers are not able to suppress, and bring to justice.
When an unusual number of men, assemble against a man whom they accuse; the assembly is an unlawful tumult; because they may deliver their accusation to the magistrate by a few, or by one man. Such was the case of St. Paul at Ephesus; where Demetrius and a great number of other men, brought two of Paul’s companions before the magistrate, saying with one voice, Great is Diana of the Ephesians; which was their way of demanding justice against them for teaching the people such doctrine, as was against their religion, and trade. The occasion here, considering the laws of that people, was just; yet was their assembly judged unlawful, and the magistrate reprehended them for it in these words (Acts xix. 38-40.) If Demetrius and the other workmen can accuse any man, of any thing, there be pleas, and deputies, let them accuse one another. And if you have any other thing to demand, your case may be judged in an assembly lawfully called. For we are in danger to be accused for this day’s sedition; because there is no cause by which any man can render any reason of this concourse of people. Where he calleth an assembly, whereof men can give no just account, a sedition, and such as they could not answer for. And this is all I shall say concerning systems, and assemblies of people, which may be compared, as I said, to the similar parts of man’s body; such as be lawful, to the muscles; such as are unlawful, to wens, biles, and apostems, engendered by the unnatural conflux of evil humours.
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, 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.
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.
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 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.
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.
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.