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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
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
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
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
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
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
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
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.
(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
(4) Ibid., p. 516, reciting the text of the
(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.
(14) See C. H. Firth, "Cromwell and the Crown, II,"
English Historical Review (1903), xviii, 60.
(15) Burton's Parliamentary Diary, iv,
(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
(17) Burton's Parliamentary Diary, i,
(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