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posals, omitting everything that had reference to the King.
The Heads of the Proposals had contemplated the retention

d



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1 \ Introduction [1649

of the Royal authority in some shape or another, and hacl
been content to look for security to Acts of Parliament,
because, though every Act was capable of being repealed,
it could not be repealed without the consent both of the
King and the Houses, and the Houses might be trusted
to refuse their consent to the repeal of any Act which
checked the despotism of the King ; whilst the King could
be trusted to refuse his consent to the repeal of any Act
which checked the despotism of the Houses, With the
disappearance of Eoyalty the situation was altered. Th^
despotism of Parliament was the chief danger to be feared,
and there was no possibility of averting this by Acts of the
Parliament itself. Naturally, therefore, arose the idea o^
a written Constitution, which the Parliament itself would
be incompetent to violate. According to the proposed
scheme, the existing Parliament was to be dissolved on
^ April 30, 1649, After this there was to be a biennial
Parliament without a House of Lords, a redistribution of
seats, and a rating franchise. For seven years all who had
adhered to the King were to be deprived of their votes,
and duiing the first and second Parliaments only those, who
had by contributions or by personal service assisted the
Parliament, or who had refrained from abetting . certain
combinations against Parliament, wjere to be. capable of
being elected, whilst those who had actually supported the
King in the war were to be excluded for fourteen years.
Further, no official was to be elected. There was ta be a
Council for ' managing public aiOfairs,' Further, six particulars
were set down with which Parliament could not meddle,,
all laws made on those subjects having no binding force.

As to religion, there was to be a public profession of
the Christian religion 'reformed to the greatest purity
of doctrine,' and the clergy were to be maintained *out of
a public treasury/ but *not by tithes,' This public religion
was not to be * Popery or Prelacy-' Na one was to be
compelled to conformity, but all religions which did not



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i649] The Commonwealth K

create disturbances were to be tolerated. It was not, how-
ever, to be understood Hhat this liberty shall necessarily
extend to Popery or Prelacy/ a clause the meaning of which
is not clear, but which was probably intended to leave the
question open to Parliament to decide. The Article on
Beligion was, like the six reserved particulars, to be out of
the power of Parliament to modify or repeal.

The idea of reserving certain points from Parliamentary
action was one which was subsequently adopted in the
American Constitution, with this important difference, that
the American Constitution left a way open by which any
possible change could be effected by consulting the nation ;
whilst the Agreement of the People provided no way in
which any change in the reserved powers could be made at
all. In short, the founders of the American Constitution
understood that it was useless to attempt to bind a nation
in perpetuity, whilst the English Council of the Army either
did not understand it^ or distrusted the nation too far to
make provision for what they knew must come in time.

It was this distrust of the nation — perfectly justified as
far as themselves and their projects were concerned — which
made it hopeless for the Council of the Army to build up
the edifice which they designed. It is well to note that the
document which to every sober student of Constitutional
History seems evidence that the scheme of the army was
a hopeless one, was published before the execution of the
King. That that execution made the difficulties in the way
of the establishment of a Eepublic greater than they had
been, it is impossible to deny; but the main difficulties
would have existed even if the King had been deposed
instead of executed. There are two foundations upon which
government must rest if it is to be secure, traditional con-
tinuity derived &om the force of habit, and national support
derived from the force of will. The Agreement of the People
swept the first aside, and only trusted the latter to a very
limited extent,

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Hi Introduction [1653

The King's execution was not long in following. On
January 20 the charge against him was brought before the
High Court of Justice (No. 82, p. 37 1). On the 2 1st, Charles
delivered his reasons for declining the jurisdiction of the
Court (No. 83, p. 374). Sentence of death was pronounced
on the 27th (No. 84, p. 377). The death-warrant was signed
on the 29th (No. 85, p. 380), and on the 30th Charles I was
beheaded.

V. The Commonwealth and FrotedOfate.
[1649—1660.]

On February 13, 1649, the existing House of Commons,
now claiming the powers and style of the entire Parliament,
though sitting with sadly diminished numbers, appointed
a Council of State (No. 86, p. 381), and on the 22nd drew up
an Engagement to be taken by the Councillors to maintain
and defend resolutions of Parliament for the establishment of
a Commonwealth without King or House of Lords (No. 87,
p. 384). It abolished the office of King on March 1 7 (No. 88,
p. 384), and the House of Lords on March 19 (Na 89, p. 387).
On May 1 9 it finally declared England to be a Commonwealth
(No. 90, p. 388). On July 17, 1649, it passed a new Treason
Law (No. 91, p. 388); and on January 2, 1650, directed an
Engagement of Fidelity to the Commonwealth to be taken
by all men of the age of eighteen (No. 92, p. 388). On
September 27, 1650, it repealed all Acts and clauses of Acts
imposing penalties for not coming to Church, but enacted
instead that every one on the Lord's Day, and on days
of public thanksgiving and humiliation, should be present
somewhere 4n the practice of some religious duty' (No. 93,
p. 391). So far the Parliament had gone in carrying out the
Agreement of the People, but, as might be expected, it took
no steps to limit its own powers, nor was it at all in a hurry
to appoint a day for its own dissolution.

In the meanwhile, the only force which supported the
new Commonwealth or could dictate to its representatives



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1653] The Instrument of Government uu

was that of the army. In 1649 ^ large part of the army
under Cromwell had been engaged in the conquest of
Ireland, and on August 12, 1652, an Act was passed for the
settlement of Ireland on the principles which commended
themselves to the conquerors (No. 94, p. 394). In 1650
Cromwell became Lord General, and in that year and in
1 65 1 he conducted a war against the Scots, defeating them
at Dunbar on September 3, 1650, and at Worcester on Sep-
tember 3, 1651. As soon as peace was restored, the leaders of
the army became impatient for the fulfilment of the neglected
demands of the Agreement of the People. On April 20,
1653, Cromwell dissolved the Parliament by force, and stated
his reasons for doing so in a public Declaration (No. 95, p.
400). Instead, however, of summoning a Parliament either
after the new scheme or after the old system, he allowed
the Council of Officers, on advice from the Congregational
ministers, to nominate an assembly, usually known by a
nickname as the Barebones Parliament, to provide generally
for the Commonwealth (No. 96, p. 405). In the end, the
Assembly dissolved itself, surrendering authority to Crom-
well as Lord Protector, who, on December 16, 1653, an-
nounced his intention of ruling according to a constitutional
document prepared by a select body of officers, and known
as the Instrument of Government (No. 97, p. 405).

The Instrument of Government was intended to suit
a Constitutional Government carried on by a Protector and
a single House. The Protector stepped into the place
of the King, and there were clauses inserted to define
and check the power of the Protector, which may fitly be
compared with those of the Heads of the Proposals. The
main difference lay in this, that the Heads of the Proposals
were intended to check a King who, at least for some time
to come, was to be regarded as hostile to the Parliament,
whereas the Instrument of Government was drawn up
with the sanction of the Protector, and therefore took it for
granted that the Protector was not to be guarded against



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liv Introduction [1653

as a possible enemy. His power however was to be limited
by Parliament; and still more by the Council.

Parliament wad to be elected and to meet, not, as according
to the Agreement of the People, once in two, but once
in three years (§ 7), and to remain in session at least
five months (§ 8). It was to be elected in accordance
with a scheme for the redistribution of seats based on
that set forth in the Agreement of the People (§ 10),
the Protector and Council having leave to establish con-
stituencies in Scotland and Ireland, which were now to
send members to the Parliament of Westminster. It was
the first attempt at a Parliamentary union between the
three countries, carried out at a time when such a union was
only possible because two of the countries had been con-
quered by one. Instead of the old freehold franchise^ or
of the rating franchise of the Agreement of the People,
the franchise in the counties was to be given to the
possessors of real or personal estate to the value of £200
(§ 18). As nothing was said^ about the boroughs, the right
of election would remain in those who had it under the
Monarchy, that is to say, it would vary according to the
custom of each borough. This however was of less im-
portance than it would have been in former years, as one
of the main features of the Instrument was an enormous
increase of the number of county members, and a proportional
decrease of the number of borough members. In those
boroughs in which the corporations elected, the feeling by
this time would be likely to be anti-Eoyalist. The dis-
qualification clauses were less stringently drawn than in the
Agreement of the People, but all who had abetted the King
in the war were to be deprived of their votes at the first
election and of the right of sitting in the first four Parlia-
ments (§ 14). Those who had abetted the Eebellion in
Ireland, or were Eoman Catholics, were permanently dis-
qualified from sitting or voting.

The Council was named in the Instrument itself. When



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1653] The Instrument of Government iv

vacancks occurred, Parliament was to give in six names, to
be diminished to two by the Council, out of which one Was
to be selected by the Protector (§ 2 5). The chief officers of the
State were to be chosen * by the approbation of Parliament.'

The clauses relating to the power of Parliament in matters
of finance seem to have been modelled on the old notion
that Hfie King was to live of his own ' in ordinary times. A
constant yearly revenue was to be raised for supporting an
army of 30,000 men ^- now regarded as a permanent charge
— and iot a fle^t sufficient to guard the seas, as well as
£200,000 for the domestic administration* The total
amount and the sources of the necessary taxation were to
be settled by the Protector and Council ; Parliament having
no right to diminish it without the consent of the Protector
(§ 27). With respect to war expenses, they wsre to be met
by votes of Parliament, except that in the intervals of Parlia-
ment the Protector and Council might raise money to meet
sudden emergencies from war till the Parliament could meet
(§ 3^)^ which the Prottetor and Council were bound to summon
for an extraordinary session in such an emergency (§ 23).

As to legislation, a Bill passed by Parliament was to be
presented before the Protector. If after twenty days he
had not given his consent, or induced Parliament to with-
draw the Bill, it became law unless it were contrary to the
Instrument of Government (§ 24).

As to administration, Hhe Chancellor, Keeper, or Com-
missioners of the Oreat Seal, the Treasurer, Admiral, Chief
Governors of Ireland and Scotland, and the Chief Justices
of both the Benches ' were to be chosen by the approbation
of Parliament (§ 34). All other appointments were in the
hands of the Protector.

The functions of the Council were of considerable impor-
tance. In all important matters the Protector had to act
by its advice, and when Parliament was not in session it was
to join him in passing Ordinances which were to be obeyed
until in the next session Parliament either confirmed them



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Ivi Introduction [1653

or disallowed them (^ 30). On the death of the Protector
it was the Council which was to elect his successor (§ 32).

The articles on Liberty ofWorship (§§ 36, 37) are almost
y^bally taken from the Agreement of the People^ except
that for the clause 'Nevertheless, it is not intended to be
hereby provided that this liberty shall necessarily extend to
Popery or Prelacy/ is substituted * Provided this liberty be
not jBxtended to Popery or Prelacy, nor to such as, under the
profession of Christ, hold forth and practise licentiousness/

To obti^n some sort of confirmation for this new Con-
stitution, the returning Ofl&cer was to obtain from the
electors by whom the members of Parliament were chosen
a written acknowledgment 'that the persons elected shall
not have power to alter the government as it is hereby
settled in one single person and a Parliament ' (§ 1 2).

The Instrument of Government suffered not only under
the vice of ignoring the probable necessity of constitutional
amendment in the future, as is shown by its silence on
this head, combined with the elaborate provisions for
a change in the amount of money set aside for fixed charges;
but also under the vice of having no support either in
traditional loyalty or in national sanction. If, however,
we pass over these all-important faults, and discuss it
from the purely constitutional point of view, it is im-
possible not to be struck with the ability of its framers,
even if we pronounce their work to be not entirely satis-
factory. It bears the stamp of an intention to steer a
middle course between the despotism of a ' single person *
and the despotism of a 'single House.' Parliament had
supreme rights of legislation, and the Protector was not
only sworn to administer the law, but every illegal act
would come before the courts of law for condemnation.
Parliament, too, had the right of disapproving the nomi-
nations to the principal ministerial offices, and of voting
money for conducting operations in time of war. Where
it fell short of the powers of modern Parliaments was in



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i653l The Instrument of Government Ivii

its inability to control administrative acts, and in its power-
lessness to infuse supplies for the carrying on of the govern-
ment in time of peace. A modem Parliament can exercise
these powers with safety, because if it uses them foolishly
a government can dissolve it and appeal to the nation^
whereas Cromwell, who was but the head of a party in
the minority, and whose real strength rested on the army,
did not venture to appeal to the nation at large, or even
to appeal too frequently to the constituencies who were to
elect his Parliament.

The real constitutional safeguard was intended to be in
the Council. Ultimately, after the death of the Councillors
named in the Instrument, the Council would indirectly
represent the Parliament, as no one would have a place on
it whose name had not been one of six presented by Parlia-
ment. In the Council the Protector would be in much the
same position as a modern Prime Minister in his Cabinet,
except that each member of the Council held his position
for life, whereas a modem Prime Minister can obtain the
resignation of any member of the Cabinet with whom he is
in strong disagreement. On the other hand, the greater
part of the members of a modem Cabinet are heads of
executive departments, and thus have a certain independent
position of their own. In some respects indeed, the relations
between the Protector and the Council were more like those
between an American Pi'esident and the Senate in executive
session, than those between an English Prime Minister and
the Cabinet. The members of the American Senate are
entirely independent of the President, as the members of the
Council of the Protectorate were entirely independent of
the Protector when once they had been chosen. On the
other hand, the two bodies differed in a most important
particular. The tendency of the American Senate, which
is never officially brought into personal contact with the
President, is to be antagonistic to the President. The
tendency of the Council of State, which was in daily contact



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hdii



Introduction



1654-3



with ihe Protector, was to work with him instead of
against him.

The chief points in which the Parliamentary constitutional
scheme (No. loi. p. 427) differed from the Instrument of
Government will be best seen if given in a tabulated form : —



Svhject,

1. i*R0VI8I0N
FOB ALTERING

THE Constitu-
tion.



Instrument of Oovernment
None.



TarUamenfary scheme.

Cap. 2. By consent of Pro-
tector and ParUament.



2. Election of Art. 3a. By the Council.
▲ future Pro-
tector.



8. Election of
Council.



4» Tenure of a
Councillor's
Office.



5. Reyenub.



Art. 25. Parliament to
nominate dxy of which
the CouncU is to choose
two, of which the Pro-
tector is to choose one.

Art. 35. Removable for
oorruption and mis-
carriage by a Commis-
sion of seven members
of Parliament) six mem-
bers of the CooncU, and
the Chancellor. In the
intervals of Parliaments
may be suspended by the
Council with the consent
of the Protector.

Art. 27. Protector and
Council to raise enough
to support 10,000 horse
and 20,000 foot, and to
have £200,000 annually
for purposes of govern-
ment. Extraordinary
forces to be paid by
consent of Parliameut.



Cap. 3. By the Council,
except when Parliament
is sitting, and then as
Parliament may think
fit.

Cap. 39. To be nominated
by the Protector, and
approved by Parliament.



Cap. 40. Not to continue
in office more than forty
days after the meeting
of Parliament, unless ap-
proved by Parliament.



Cap. 18, 48. £400,000 to
be permanently assigned
to the Protector fw mili-
tary and naval expenses,
£200,000 for purposes
of government, and
£700,000 a year tiU
Dec. 25, 1659.



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x«54-5]



The Parliamentaty Scheme



Ux



Svibjeet,
6. Peace
War.



7. Control of
THE Armt.



8. Kelioious
toleration.



Instrument of Oovemment,

Art. 5. To be declared by

Protector and CoanoiL



Art. 4. Px^>tector to dis-
pose of the Militia and
forces during the session
of Parliament by consent
of Parliament, and, when
Parliament is not sitting,
to dispose of the Militia
with the consent of the
CounoiL



Art. 37. Toleration of wor-
ship to be given to all
such as profess faith in
God by Jesus Christ, if
they do not use it to the



Parliamentary seheme.

Cap. 5a. War to be de-
clared with consent of
Parliament.

Cap. 53. Peace with con-
sent of Parliament if
sitting, or if not, with
consent of Coondl, with
sueh restrictions as may
be imposed by Parlia-
ment.

Cap. 45. The Present Pro-
tector to dispose of the
forces during the session
with consent of Pariia-
ment.

Cap. 46. When Parliament
is not in session, he is to
dispose of the standing
forces with the consent
of the Council.

Cap. 48. Those forces are
during the life of the
present Protector to be
no more in number than
shall be agreed on be-
tween the Protector and
the Parliament.

Cap. 47. After the death
of the present Protector
the standing forces are
to be at the disposal of
the Council till Parlia-
ment meets, and then to
be disposed of as Parlia-
ment shall think fit.

[N.B. The Mmtia is ex-
pressly excluded from
these forces by the final
proviso of the Bill, Cap.
59. See Commonwealth
and Protector ate, Hi. 2^^.

Cap. 4a, 43. Toleration of
worship for those who do
not use it to civil injury
of others, or the dis-
turbance of the public



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Ix



Introduction



[1657



SuhjecL
8. Rblioious

TOLERATION

{continued).



Instrument 0/ Government,
civil injury of othen, and
the disturbance of the
public peace; but this
liberty is not to be ex-
tended to Popery or
Prelacy, or practice of
licentiousness.

Art. 38. All laws contrary
to this liberty are null
and void.



Parliamentary tcheme.
peace. Bills, however,
shall become law with-
out the Protector's con-
sent which restrain dam-
nable heresies. What are
damnable heresies, how-
ever, are to be agreed
on by Protector and Par-
liament. Bills are also
to become law without
the Protector's consent
for restraining atheism,
blasphemy, popery, pre-
lacy, licentiousness, and
profaneness. Also Bills
against those who pub-
licly maintain anything
contrary to the funda-
mental principles of doc-
trines publicly professed.
What those doctrines
are, however, is to be
agreed on by the Pro-
tector and Parliament.

It will now be understood on what grounds Cromwell
dissolved the House. He objected especially to the limitation
of the grant of £700,000 a year being terminable in 1659,
as taking military finance, and with it the control of the
army, out of the hands of the Protector after that date.
After this he was obliged to carry on the government
without it, supplying himself with the necessary funds by
the vote of the Council, according to Article 27 of the
Instrument of Government. Special expenses arising from
the necessity of suppressing a Boyalist conspiracy were met
by the imposition of a tithe on Boyalists, which had no
constitutional sanction at all.

Amongst the temporary Ordinances issued by the Pro-
tector before the meeting of his first Parliament was one
for the union of England and Scotland (No. 99, p. 422),
followed by another permanent Ordinance in accordance
with Article 10 of the Instrument of Government, for the



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1657] The Humble Petition and Advice ixi

distribution of seats in Scotland. In accordance with the
same article, another Ordinance was issued for the dis-
tribution of seats in Ireland (No. 100, p. 425). Irish elec-
tions, however, were only a matter of interest to the
En^ish and Scottish colony, as all Roman Catholics and
all persons who had supported the late Bebellion were
permanently excluded from voting.

In 1656, the Protector called a second Parliament. By
excluding from, it about a hundred members whom he
judged to be hostile to his government, he found himself
on amicable terms with the new assembly. It presented
to him a Humble Petition and Advice, asking that certain
changes of the Constitution might be agreed to by mutual
consent, and that he should assume the title of King. This
title he rejected, and the Humble Petition and Advice was
passed in an amended form on May 35, 1657 (No. 102, p. 427),
and at once received the assent of the Protector. On
June 26, it was modified in some details by the Additional
Petition and Advice (No. 103, p. 459). Taking the two
together, the result was to enlarge the power of Parliament
and to diminish that of the Council. The Protector, in
return, received the right of appointing his successor, and
to name the life*>members of ^ the other House,' which was
now to take the place of the House of Lords.

The Parliament gained the control over its own elections,
and security that its members should not be arbitrarily
excluded. For the complicated scheme of nomination to
the Council, which was now to be called by the old name
of the Privy Council, was to be substituted nomination
by the Protector, with the consent of the Council, and
the subsequent consent of Parliament. The members were
only to be removable with the consent of Parliament.
9he principle of a permanent revenue sufficient to support
the government in times of peace was accepted, but the
mode in which it was to be raised was to be settled by
Parliament and not by the Council.



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Ixii Introduction [1657

In the matter of religious liberty, the general lines of
the Instrument of Government were followed ; but certain
opinions were named which must be held by all whose
worship was to be tolerated (§ 11),

In accordance with the Petition and Advice (Na 102, § 5,
p. 452), the Protector summoned certain persons to sit in



Online LibrarySamuel Rawson GardinerThe constitutional documents of the Puritan revolution 1625-1660 → online text (page 5 of 51)