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 judged 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 diverse 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,Icannot 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 judgements given;to publish the sovereigns 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 counsellor,nor a council of state,if we consider with no authority 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 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 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.
