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The Origins Of Modern Constitutionalism
The Instrument of Government
by Wormuth, Francis D.

In 1649 no one envisaged the Rump as a perpetual legislature, but four years later it was still in session and had made no progress in providing for its own dissolution. No doubt the business of maintaining order and settling a stable administration in the country and the problems of the Dutch war seemed more pressing to the members than the establishment of a new constitutional system. But outside the House dissatisfaction with the Rump increased. Not only the Levellers but less radical republicans believed that the nation was entitled to choose new representatives. The religious enthusiasts felt that the Rump had failed in the two great tasks of religious settlement and reform of the law. Furthermore, the Rump made a practice of entrusting business of all kinds to committees of its own members and this worked real hardships on the suitors for relief, who were obliged to attend all meetings of the committee, only to find that their business was adjourned from meeting to meeting or, if it should be considered, that the members who chanced to be familiar with it were absent on that day. It was notorious that individual members of the Rump had profited enormously from their position, not only by the open partition of crown and Church lands but by such covert means as the sale of personal influence.

Apparently Oliver Cromwell was dissatisfied not only with the Rump but with the commonwealth itself. When he returned in triumph from the battle of Worcester in 1651 he summoned a meeting of the chief officers of the Army and the leading lawyers in the House to consider and recommend to Parliament what was fit to be done toward a permanent settlement.¹ The lawyers advocated a "mixed monarchical government" as most suitable to the laws and people of the nation. Sir Thomas Widdrington suggested that the young Duke of Gloucester would be the most plausible nominee for the throne. The officers, however, held out for an "absolute republic." Cromwell rejected the proposal to seat a Stuart heir, but expressed the opinion that "a settlement with somewhat of monarchical power in it would be very effectual." Probably, as Bulstrode Whitelocke thought, Cromwell was merely fishing for men's opinions, for he broke off the conference without pressing for a conclusion. A year later he opened his mind in private conversation with Whitelocke.² He charged the members of the Parliament with pride, self-seeking, and scandalous living. Their proceedings were dilatory and factious and their meddling in private matters between party and party was improper. They intended to perpetuate themselves in power, "nor can they be kept within the bounds of justice and law or reason, they themselves being the supreme power of the nation, liable to no account to any, nor to be controlled or regulated by any other power; there being none superior or co-ordinate with them." He concluded that "some course must be thought of to curb and restrain them, or we shall be ruined by them." Whitelocke protested that it was not possible to restrain the supreme power, whereupon Cromwell made the famous reply, "What if a man should take upon him to be King?"

The forcible dissolution of the Rump was the outcome of a year of protest and agitation for a new Parliament. On June 29, 1652, a petition signed by "many thousands" was delivered to the House.³ It asked for legal reforms, annual elections of members of Parliament and of local officers, and a kind of Leveller Bill of Rights. In August most of the officers of the Army signed a petition to Parliament asking for various reforms and looking toward a general election.⁴ A series of conferences between the chief officers and leading members of the House resulted. The House was reluctant to act and at most was willing only to add to its present members by authorizing supplementary elections. The dissatisfaction of the Army and of the gathered churches increased. In order to forestall a coup d'état by the Army the House on April 20, 1653, attempted to rush through a bill for supplementary elections. This was to be followed by the dismissal of Cromwell from his position as commander-in-chief and the adjournment of the House until November. Cromwell, who had been assured by the Parliamentary leaders that no action would be taken without the approval of the Army, was absent, but Harrison was in attendance and he sent for Cromwell. Cromwell summoned a body of soldiers and hurried to the House. When the Speaker put the question on the bill Cromwell rose from his seat and denounced the members, collectively and individually, and concluded: "I will put an end to your prating. You are no Parliament. I say you are no Parliament. I will put an end to your sitting." Harrison called in the soldiers and the members were driven out.

Cromwell's action would have been impossible without the active support of Harrison and Lambert. A few months before the dissolution Cromwell had complained to Quartermaster-General Vernon that Harrison, in the impatience of his spirit, hurried him on "to that which he and all honest men will have cause to repent." Lambert also pressed for a dissolution, said Cromwell, because of a slight put upon him by the Rump.⁵ In 1656 Harrison told Edmund Ludlow that Cromwell had led him on by pretending "to own and favor a sort of men, who acted upon higher principles than those of civil liberty."⁶ Lambert apologized to the Rump politicians in 1659, saying that Cromwell had embittered him against the Parliament.⁷ Probably none of the three desired the dissolution in the manner in which it came. The tactics of the House forced the Army's hand. But it is certain that all three generals preferred a forcible dissolution to the disappointment of their several expectations.

Two days after the dissolution the Council of Officers published an account and justification of the action.⁸ This Declaration alleged that some time earlier the Army had reluctantly come to the conclusion that the Parliament "would never answer those ends which God, his people, and the whole nation expected from them." The officers after much debate had agreed that Parliament should entrust the supreme authority to "known persons, men fearing God, and of approved integrity," who would so order the country that the people would forget monarchy. This would make possible a return to elective Parliaments and the disbanding of the Army. Twenty members of the House had been summoned to conference on April 19; they had rejected the plan of the Army but agreed to postpone action until another conference had been held the following day. Nevertheless the Parliament had proceeded with the bill for recruiting new members and had thus made necessary the dissolution. The Declaration ended with the promise to call to the government persons of approved fidelity and honesty, who would carry out the reformation for which all good hearts had been panting.

The Council of Officers debated various plans for a nominated government. Harrison desired a House of seventy members patterned after the Jewish Sanhedrin. Lambert proposed a small council to which, Gardiner conjectures, he expected a co-ordinate Parliament to be joined in due time.⁹ Cromwell is said to have sought to have the lawyers St. John and Selden "draw up some instrument of government that might put the power out of his hands." The plan eventually adopted was a modification of Harrison's scheme. The Army requested the congregational churches in the various counties to nominate candidates for a Parliament. From these lists the Council of Officers chose whom they pleased; apparently they also added names which had not been suggested by any congregation. Harrison busied himself in securing the nomination of godly men, but in the final outcome there were only 61 Harrisonians against 81 men of more conservative and worldly views.¹⁰

The Little Parliament met on July 4. Some of the less zealous members dropped out and the two factions came to be almost equal in number. The Harrisonians attacked the courts and the legal system and without offering any other provision for the maintenance of a state church proposed the abolition of tithes. Eventually the moderate men saw no way of saving their cause but by a trick. They met early on the morning of December 12, while most of their opponents were at prayer, and expressed themselves in favor of a dissolution; without even putting the question to a vote they hurried to Cromwell and resigned the power of the Parliament to the Lord General. The extremists who remained behind were turned out of the chamber by two colonels, who Gardiner thinks were acting under the orders of Lambert rather than Cromwell.

Cromwell later said that the dissolution was undertaken without his knowledge. However that may be, the leaders in the action certainly had an understanding with Lambert. Lambert immediately produced a document called the Instrument of Government. Evidently this had already been under discussion among the officers. Further negotiations followed and a final agreement was reached. On December 16 Cromwell was installed as Lord Protector of the commonwealth at a ceremony in Westminster Hall.

Lambert was, as Whitelocke says, a man "of a subtle and working brain." He had assisted Ireton in framing the declarations of the Army in 1647. Dawson, the biographer of Lambert, believes that Lambert was the sole author of the Instrument.¹¹ A pamphlet of 1659 speaks of "five or six persons who at first contrived and brought forth the Instrument and government by a single person" and names Lambert, Lawrence, St. John, Thurloe, and Goffe.¹² Richard Baxter said that the Instrument was written by "a juncto of officers, and I know not who (nor ever could learn, but that Lambert and Berry were two chief men in it) ,"¹³ Cromwell in 1657 spoke of it as the work of seven officers,¹⁴ but it was notorious that Lambert was chiefly responsible for the Instrument. He betrayed an author's sensitiveness when in Parliament in 1659 he replied to slurs, "The Instrument is buried in its grave. I would not have it raked into. I wish such language to be spared hereafter."¹⁵

Certain provisions of the Instrument were derived from the Heads of the Proposals which Ireton had framed, probably with the assistance of Cromwell and Lambert, in 1647. There is an obvious debt to the Agreement of the People, but it was in substance a new organic creation. In its final form the Instrument consisted of forty-two numbered paragraphs. Three chief organs of government were created, a Lord Protector, his Council, and a unicameral Parliament. Oliver Cromwell was named Protector; upon his death his successor was to be chosen by the Council. The Council was to consist of from thirteen to twenty-one persons, and sixteen men were named to constitute the first Council. They were to hold office for life, or until removed for misconduct by a board consisting of seven members of Parliament, six of the Council, and the Keeper or Commissioners of the Great Seal. In case of vacancy in the Council, the Parliament should nominate six candidates; from these the Council would select two and the Protector was to name one. The Parliament was to consist of 400 members apportioned to the counties and boroughs of England, Wales, Scotland, and Ireland. The Parliament was to be elected and meet triennially, whether or not the Protector summoned it, and to sit for at least five months, unless it voluntarily adjourned sooner. Persons who had borne arms against the Parliament were disqualified from voting for or serving as members in the first four triennial Parliaments, and the members returned to the first three Parliaments were subjected to the scrutiny of the Council to determine whether they possessed the proper qualifications. Those who had taken part in the Irish rebellion and all Catholics were permanently disqualified. The suffrage was limited to those who possessed 200 pounds in real or personal property.

The legislative power was placed in the Parliament. Every bill passed by the Parliament must be submitted to the Protector, who was allowed twenty days in which to approve or to give the Parliament satisfactory reasons for rejecting the measure; but the Parliament might thereafter put the bill into effect by declaring that the Protector had neither consented nor given satisfaction. There was one exception: on all bills contrary to the provisions of the Instrument the Protector's veto was absolute. Power over the militia and military forces was in the Protector and the Parliament while Parliament was sitting, in the Protector and Council in the intermission of Parliaments. Foreign relations and domestic administration were in the Protector and Council.

Certain matters were placed beyond the power of Parliament. The Instrument granted to the Protector and Council the right to levy taxes to support 10,000 horse and 20,000 foot soldiers and a navy and to raise 200,000 pounds for civil administration without the consent of Parliament. All other taxes were to be voted by Parliament. The Instrument stipulated that none should be compelled to any public profession of religion and that all who professed faith in God by Jesus Christ should be protected in the exercise of their religion, "provided this liberty be not extended to popery or prelacy, nor to such as, under the profession of Christ, hold forth and practise licentiousness." All laws, statutes, and ordinances contrary to this liberty were to be void.

These were the chief features of the Instrument. It was an ingenious scheme, calculated to maintain the Army and the cause and yet return in some degree to representative institutions. The Protector was balanced against the Parliament in matters of legislation, and against the Council in matters of administration. A True State of the Case of the Commonwealth, a book published on February 8, 1654, praised the Instrument as the highest refinement of political science.

If war there be, here is the unitive virtue (but nothing else) of monarchy to encounter it; and here is the admirable counsel of aristocracy to manage it: if peace be, here is the industry and courage of democracy to improve it. And whereas in the present constitution, the legislative and executive powers are separated; the former being vested in a constant succession of Parliaments elective by the people, the latter in an elective Lord Protector and his successors assisted by a Council; we conceive the state of this commonwealth is thereby reduced to so just a temper, that the ills either of successive Parliaments, furnished with power both of executing and making laws, or of a perpetual Parliament (which are division, faction, and confusion) being avoided on the one side, and the inconveniences of absolute lordly power on the other; the frame of government appears so well bounded on both sides, against anarchy and tyranny, that we hope it may now (through the blessing of God) prove a seasonable mean (as for the better defending these dominions against enemies abroad, and promoting our interests in foreign parts, so also) of peace and settlement to this distracted nation; and be of a durable continuance to succeeding ages, for the glory of the most high God, the advancement of his Gospel, the protection of his people, and the benefit of posterity.

The anonymous author — Sir Charles Firth believed him to have been Marchamont Nedham¹⁶ — insisted that the new government recognized the principle that power derived from the people. Parliaments were at present elective and future Protectors and Councillors would be so. All significant powers rested in the Parliament, or in the Parliament with the Protector. It had been necessary to specify the members of the first Council in the Instrument: "we were in the beginning of a new government, necessitated to create a little world out of chaos, and bring form out of confusion; so that there was an absolute necessity, that some who are known to be persons of integrity, and firm for the present settlement, should at the same instant be taken in, to carry on the work, which can be no ground of just exception, especially seeing for the future, elections shall run in the appointed channel, where their streams are to flow from the people, as their original fountain."

A similar justification was offered for the Protector's absolute veto on bills altering the Instrument and for the twelfth paragraph, which provided that the returns certified to the Chancery by the officers of elections should stipulate that the persons elected had no power to alter the government as settled in a single person and Parliament.

.... though it be not of necessity, yet it were a thing to be wished, that popular consent might always, and at all times, have the sole influence in the institution of governments; but when an establishment is once procured, after the many shakings and rents of civil divisions, and contestings for liberty, as here now in England, doubtless we have the greater reason to value it, being purchased at the price of our blood, out of the claws of tyranny; and we conceive it highly concerns us, to put in some sure proviso, to prevent a razing of those foundations of freedom that have been but newly laid; especially in such an age as this, wherein men are very apt to be rooting and striking at fundamentals, and to be running out of one form into another; and when it is found also, what advantages the common enemy hath made by our being in the condition of a floating island, through neglect of any certain settlement: which being considered, it was high time, some power should pass a decree upon the wavering humors of the people, and say to the nation, as the Almighty Himself said once to the unruly sea; Here shall be thy bounds, hitherto shalt thou come, and no further.

The first Parliament to be summoned under the Instrument of Government met on September 3, 1654. There were present several republicans, headed by the regicides Scot and Bradshaw, and Sir Arthur Haslerig; opposed to these were a group of officers and civilian supporters of the Protectorate. The majority of the House was Presbyterian and was committed to neither faction. Cromwell addressed the House on September 4; he described the distracted condition of the country before the Protectorate was established, reviewed his achievements in that office, and enumerated the tasks which confronted the Parliament. He also invited the Parliament to consider the Instrument of Government. The House did little else through its entire session. The republicans immediately attacked the co-ordinate authority of the Protector. They argued that the supreme power was in the people, whom the Parliament represented. This supreme authority could not be alienated or limited, and "to join anything in co-ordination with it, would be to set up two suprêmes, that would always check on the other, and have several interests, and several affections, and ends, and, by consequence, would never be at peace." The Cromwellian party enlarged on the abuses practised by the Rump and insisted that a co-ordinate power in the Protector was needed, "that there might be a check, as they called it, upon the Parliament; as to the legislative power in some few things."

1. To avoid the perpetuity, or some other exorbitances in the supremacy of Parliaments. Therefore, a sole person might be conjoined with it to prevent these.

2. As to the militia, that the Parliament might not have the sole disposing power of that.

3. As to religion, that it might not impose what it pleased in that.

As to all other things, they were contented to leave the legislative power entire to the Parliament, so as the executive power might be wholly in the sole person; with such qualifications, restrictions, and instructions, as it should receive from the Parliament.

So Guibon Goddard reported the debate." The contestants disputed, he said, "as if they had been in schools, where each man had liberty to propose his own Utopia, and to frame commonwealths according to his own fancy, as if we had been in republica constituenda and not in republica constituta." The counsel which won most favor was that of Justice Hale, a confirmed Royalist whom Cromwell had nevertheless appointed to the Common Pleas. Hale proposed that the Parliament should determine for itself the extent to which the Protector was to have co-ordinate authority.

Cromwell evidently believed that the direction the debate was taking was dangerous to the Instrument and to the office of Protector. When the members sought to enter the House on September 12 they found soldiers at the door, who directed them to meet the Protector in the Painted Chamber. There Cromwell spoke at length. The Instrument, he said, had been acknowledged by the whole country, and the Parliament itself had no other warrant for sitting. Some features of the Instrument were "circumstantial" and open to debate. If persuaded by reason, he would agree to alter those provisions. "But some things are fundamentals; about which I shall deal plainly with you: they may not be parted with; but will, I trust, be delivered over to posterity, as the fruits of our blood and travail. The government by a single person and a Parliament is a fundamental. It is the esse, it is constitutive."

Another fundamental was that Parliaments should not make themselves perpetual, as the Rump had attempted to do. To prevent this a single person was necessary. "Of what assurance is a law to prevent so great an evil, if it lie in one or the same legislature to unlaw it again?" The third fundamental was liberty of conscience in religion. The fourth fundamental was that control of the militia should not rest either in the single person or in Parliament; each should check the other. If the Parliament had sole control of the militia, it might make itself absolute and perpetual. Therefore, Cromwell concluded, he required the members to sign an engagement acknowledging the stipulation placed by the election officers on their returns, that they would not "propose or consent to alter the government, as it is settled in a single person and a Parliament." The confirmed republicans refused to sign, but well over half the members signed and returned to their places in the House.

The House soon resumed its work.¹⁸ It resolved that the engagement bound the members only to leave the office of Protector in existence; the House might determine his powers. The method of choosing Councillors was changed; they were to be appointed by the Protector, with the approval of Parliament, for a three-year term. Numerous other alterations, major and minor, were made; at last the House fell upon the question of the armed forces. It left to the Protector his voice in the disposal of the Army and Navy, but made appropriation for the support of the forces for only a five-year period. The last action of the House was to vote that the control of the militia should be settled as Parliament and Protector should later agree. Cromwell was not willing to face the prospect that military power might pass out of the control of the Protector. The Instrument provided that the Parliament should sit for five months, but it did not specify lunar months or calendar months, and he dissolved the House at the earliest possible day. This he did in a speech of remonstrance and rebuke. The House, at a time when revolution threatened, had devoted itself to promoting discord. It had set to unraveling the Instrument, which established a true and equal balance in government. If the military power were to pass to the Parliament, there would be nothing to prevent its perpetuating itself or imposing on men's consciences or thrusting whatever government it pleased upon the nation.

This marked the failure of the Instrument of Government. It was an inevitable failure. The checks and balances upon which it relied might have been tolerated for a time if they had been in fact, as the Instrument represented them, mere institutional balances. But the true opposition was not between agencies of government; it was an opposition of military interests to civilian interests, and these two were flatly incompatible.

NOTES

(1) For this meeting, see Bulstrode Whitelocke, Memorials of the English Affairs (London, 1682), pp. 491-492.

(2) Ibid., pp. 523-526.

(3) Ibid., p. 512, reciting the text of the petition.

(4) Ibid., p. 516, reciting the text of the petition.

(5) C. H. Firth, ed., The Memoirs of Edmund Ludlow (Oxford, 1894), i, 346. To Colonel Hutchinson in 1657 Cromwell "with tears complained how Lambert had put him upon all those violent actions, for which he now accused him and sought his ruin." Lucy Hutchinson, Memoirs of the Life of Colonel Hutchinson (2d ed., London, 1808), p. 344.

(6) Ibid., ii, 6-7. In 1660 in Newgate, before his execution, Harrison denied any knowledge of or part in the plan, although "afterwards I was glad the thing was done." The Speeches and Prayers of ... Harrison, ... Carew, ... Cook, ... Peters, ... Scot, ... Clement, ... Scroop, Jones, ... Axtell, and ... Hacker (1660), pp. 2-3.

(7) C. H. Firth, ed., The Memoirs of Edmund Ludlow, i, 346 n.

(8) A Declaration of the Lord General and his Council of Officers; Showing the Grounds and Reasons for the Dissolution of the Late Parliament (London, 1653).

(9) S. R. Gardiner, History of the Commonwealth and Protectorate (London, 1897), ii, 220. See also C. H. Firth, "Cromwell and the Expulsion of the Long Parliament in 1653," English Historical Review (1893), viii, 526.

(10) Henry A. Glass, The Barebone Parliament (London, 1899), p. 64 n.

(11) W. H. Dawson, Cromwell's Understudy: The Life and Times of General John Lambert (London, 1938), p. 175.

(12) A True Catalogue, Or, An Account of the Several Places, etc. This pamphlet is the work of a Fifth Monarchy man. Against the Instrument it was said in Parliament in 1657: "Government is not to be made by six men." John T. Rutt, ed., Burton's Parliamentary Diary (London, 1828), i, 363.

(13) Autobiography (Everyman ed.), p. 70.

(14) See C. H. Firth, "Cromwell and the Crown, II," English Historical Review (1903), xviii, 60.

(15) Burton's Parliamentary Diary, iv, 63.

(16) The Last Years of the Protectorate (London, 1909), i, 156. The title is a variant of Nedham's Case of the Commonwealth Stated, and there are verbal parallels between it and Nedham's Excellency of a Free State (1656); I know of nothing else which suggests Nedham's authorship. The style and the ideas seem not to be Nedham's.

(17) Burton's Parliamentary Diary, i, xxviii-xxxii.

(18) Gardiner in his Constitutional Documents of the Puritan Revolution (Oxford, 1889), p. 353, prints the text of Instrument as modified by the votes of the House. His manuscript source agrees closely but not perfectly with the votes reported in the Commons Journal. Unfortunately it is not possible to build up a text from this latter source.

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