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makes the assembly unlawful, but such a number, Part 11. as the present officers are not able to suppress, and bring to justice. When an unusual number of men, assemble Concourse of

people. 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 peoplesuch 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 ( Actsxix. 38-40.) If Demetrius and theother 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.

VOL. III.

Q

CHAPTER XXIII.

OF THE PUBLIC MINISTERS OF SOVEREIGN

POWER.

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Public minister who.

PART II. 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 busi

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. Ministers for

Of public ministers, some have charge committed the general administration. 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

ness.

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the predecessor of an infant king, during his mi- PART II. nority, 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 For special adsay, charges of some special business, either at home, as for economy. 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 revenne, 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,

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PART II. 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. For instruction

They also that have authority to teach, or to of the people.

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. 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,

PART II.

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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, For judicature. 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, (foras 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

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