Front Page Titles (by Subject) V.: The Commonwealth and Protectorate. [1649—1660.] - The Constitutional Documents of the Puritan Revolution, 1625-1660
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V.: The Commonwealth and Protectorate. [1649—1660.] - Samuel Rawson Gardiner, The Constitutional Documents of the Puritan Revolution, 1625-1660 
The Constitutional Documents of the Puritan Revolution, 1625-1660, selected and edited by Samuel Rawson Gardiner (Oxford: Clarendon Press, 1906).
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The Commonwealth and Protectorate.
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 17 (No. 88, p. 384), and the House of Lords on March 19 (No. 89, p. 387). On May 19 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 On September 27, 1650, it repealed all Acts and clauses of Acts imposing penalties for not coming to Church, but enacted instead that every one on the Lord’s Day, and on days of public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 ‘in 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 was that of the army. In 1649 a 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 1651 he conducted a war against the Scots, defeating them at Dunbar on September 3, 1650, and at Worcester on September 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 Cromwell as Lord Protector, who, on December 16, 1653, announced 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 as a possible enemy. His power however was to be limited by Parliament, and still more by the Council.
Parliament was 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 constituencies 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 conquered 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 importance 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-Royalist. The disqualification clauses were less stringently drawn that 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 Parliaments (§ 14). Those who had abetted the Rebellion in Ireland, or were Roman Catholics, were permanently disqualified from sitting or voting.
The Council was named in the Instrument itself. When vacancies 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 (§ 25). 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 ‘the 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 for a fleet 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 were to be met by votes of Parliament, except that in the intervals of Parliament the Protector and Council might raise money to meet sudden emergencies from war till the Parliament could meet (§ 30), which the Protector 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 withdraw the Bill, it became law unless it were contrary to the Instrument of Government (§ 24).
As to administration, ‘the Chancellor, Keeper, or Commissioners of the Great 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 importance. 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 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 of Worship (§§ 36, 37) are almost verbally 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 extended to Popery or Prelacy, nor to such as, under the profession of Christ, hold forth and practise licentiousness.’
To obtain some sort of confirmation for this new Constitution, the returning Officer 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’ (§ 12).
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 impossible not to be struck with the ability of its framers, even if we pronounce their work to be not entirely satisfactory. 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 nominations 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 its inability to control administrative acts, and in its powerlessness to refuse supplies for the carrying on of the government in time of peace. A modern 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 Parliament. 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 modern 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 modern 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 President 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 with the Protector, was to work with him instead of against him.
The chief points in which the Parliamentary constitutional scheme (No. 101, p. 427) differed from the Instrument of Government will be best seen if given in a tabulated form:—
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 Royalist conspiracy were met by the imposition of a tithe on Royalists, which had no constitutional sanction at all.
Amongst the temporary Ordinances issued by the Protector 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 distribution of seats in Scotland. In accordance with the same article, another Ordinance was issued for the distribution of seats in Ireland (No. 100, p. 425). Irish elections, however, were only a matter of interest to the English and Scottish colony, as all Roman Catholics and all persons who had supported the late Rebellion 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 25, 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. The 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.
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 (No. 102, § 5, p. 452), the Protector summoned certain persons to sit in the other House (No. 103, p. 463). A quarrel between the two Houses broke out, ostensibly on points of form, but in reality on a far deeper matter. The Humble Petition and Advice had not only given the Protector the right of naming the members of the other House, but had also declared that no future members nominated by himself or by any future Protector should be allowed to take their seats without the consent of the House (No. 102, § 5, p. 452). The result would be that, as Oliver had nominated Puritans only, no persons suspected of being opposed to Puritanism would be allowed to take their seats, and that consequently a Puritan barrier would be opposed to all anti-Puritan legislation by the representative House. Any attempt to weaken this barrier which had taken the place of the articles declared in the Instrument to be unalterable by Parliament roused Oliver’s deepest indignation, and without delay he dissolved the Parliament in anger in 1658. After a period of disorder following Oliver’s death in the same year, Charles II was restored to the Crown. Before he arrived he issued from Breda a Declaration of the principles on which he intended to govern (No. 105, p. 465). Those principles were set forth in four articles:—1. There was to be a general amnesty, except so far as Parliament might except certain persons. 2. There was to be a liberty for tender consciences according to such laws as Parliament should propose. 3. There was to be security given for property acquired during the late troublous times, in such a way as Parliament might determine. 4. Finally, full arrears were to be paid to the soldiers according to an Act of Parliament.
The Government of the Restoration accepted as its legal basis the Acts passed by Charles I up to the end of August, 1641. Its principle however is to be found in the answer suggested to the King by the Parliamentary Presbyterians on January 29, 1647 (No. 69, p. 309). It was the policy of trusting to free discussion and the pressure of national opinion expressed in Parliament to decide disputed questions which then got the upper hand, so far as the Parliamentary Presbyterians were concerned, over the policy of imposing fixed conditions on the exercise of the Royal power. Such a policy necessarily brought the Cavaliers and the Parliamentary Presbyterians together, and it was to this union of the Cavaliers and the Parliamentary Presbyterians that the Restoration was due. The Cavaliers obtained the restoration of Monarchy and Episcopacy with the Book of Common Prayer. The Parliamentary Presbyterians obtained the dependence of the King and Bishops on Parliamentary action. Charles II was not what Charles I had been, nor were Juxon and Sheldon what Laud had been.
Charles II dated the Declaration of Breda in the twelfth year of his reign. In this there was, no doubt, much of the usual pretensions of dethroned Kings to regard all that passes in their absence as having no existence which demands recognition. Yet it was not with Charles II as it was with Louis XVIII, in the days of the Directory, the Consulate, and the Empire. Very few in France thought in those times that Louis XVIII ought to reign; whereas there is every reason to believe that the majority of political Englishmen during the Commonwealth and Protectorate thought that Charles II ought to be their King.
If then the Restoration was founded on the abandonment of the principles which were to be found alike in the Grand Remonstrance and in the Heads of the Proposals, are we to say, as has been said, that the whole Civil War was a mistake, and that the nation ought to have been guided in the autumn of 1641 by Hyde and Falkland, as it was to their principles that the Presbyterians returned in 1647, and the whole nation except a small minority returned in 1660? If constitutional forms were everything, it would hardly be possible to avoid this conclusion. As a matter of fact, however, great as is the importance of constitutional forms, the character of the governor and the governed is of far greater importance. The action of the Long Parliament up to August, 1641, effected necessary changes in the Constitution, but could not effect a change in the character of Charles I. Hence to the demand for the alteration of the Constitution was added, in addition to a call for ecclesiastical changes, a demand less universally felt, but felt by men of sufficient ability and strength of will to give effect to their resolutions, that Charles I must either bend or break. It was this part of the Revolution which was not accomplished till the deposition of Charles I, which unhappily took the form of his execution. After that there was nothing more to be done which could possibly have any permanent effect. Commonwealth and Protectorate were alike the creation of the army: and force, whilst it is able to remove obstacles from the natural development of a nation, is powerless permanently to block the way against it. The army could take care that a man like Charles I should not rule England, but the Agreement of the People, the Instrument of Government, and the Humble Petition and Advice were but academical studies, interesting as anticipating in many respects the constitutional and political development of England and of the United States of America, but utterly incapable of commending themselves to the conscience of contemporaries.
FROM THE ACCESSION OF CHARLES I TO THE MEETING OF THE THIRD PARLIAMENT OF HIS REIGN.