|
|
| & etc |
FEEDBACK
(C)1998-2012
All Rights Reserved.
Site last updated
13 January, 2012
|
|
|
|
The Origins Of Modern Constitutionalism
The Humble Petition and Advice
by Wormuth, Francis D.
|
The second triennial Parliament was to meet in
1657, but Cromwell convoked an extraordinary session which met on September 17,
1656. He later charged the Army officers with insisting upon the summoning of
the Parliament, but indeed there was good reason, for the country was at war
with Spain and additional revenue was needed. In his address to the Parliament
Cromwell invited the assistance of the House in conducting the war.
This was the most tractable of all Cromwell's Parliaments. The Council
of State, to which the returns were sent, refused to seat almost a hundred
members, republicans and others whose loyalty to the Protectorate was
considered doubtful. Some of the members who gained admission protested against
this exclusion as an infringement of the privileges of the House, but
Parliament acquiesced in the Council's action.
Supplies were voted for the Spanish war, but this proved to be less
important than certain other matters which came before the Parliament. The case
of James Naylor, the debate about the Major-Generals, and the adoption of the
Humble Petition and Advice were the chief business of the House. These formed a
connected chain of events.1
James Naylor was a Quaker and had a very great following among the
members of that sect. He was arrested in Bristol for blasphemy — it was
alleged that he represented himself to be Christ — and was sent to London
for trial. The more rigid Puritans in Parliament seized upon the case and
insisted that the House punish Naylor. Many were eager for the death penalty,
but in the end he was sentenced to be whipped, pilloried, and branded, and to
have his tongue bored through with a hot iron. Then he was to be sent in
ignominy through the streets of Bristol and afterwards imprisoned. This
barbarous sentence was executed and Naylor remained in prison until September
8, 1659, when he was released by the Rump.
It is noteworthy that those who interceded for Naylor were for the most
part officers of the Army who chanced to have seats in the House. The debates
before and after sentence occupied almost a month. At the beginning of the
controversy the question was raised as to whether the House intended to proceed
by the legislative or the judicial power. There was a strong sentiment for
conviction ex post facto by bill of attainder. Some of the supporters of
this proposal argued that a legislative course must be adopted because Naylor
had not violated any existing law and therefore could not be convicted by
judicial process. Those who took Naylor's part denounced legislative conviction
and ex post facto laws eloquently but without result. Likewise the
suggestion that the Protector might feel obliged to veto the bill as an
infringement of the religious liberty guaranteed by the Instrument carried no
weight. On the other hand, some of those eager for conviction insisted that the
House possessed not only the judicial power of the Commons but that which had
formerly belonged to the Lords, and that Naylor had violated the laws of God,
if not the law of the land — a judicial sentence was therefore proper. The
House voted sentence without deciding whether the proceeding was legislative or
judicial. However, the Chief Justice raised a question: if the sentence was not
judicial, he said, the imprisonment could not endure beyond the session of
Parliament; the courts must discharge the prisoner by writ of habeas
corpus as soon as Parliament was dissolved. It was therefore voted that the
conviction was by judicial process.
A group of sectarians petitioned Cromwell to intervene in defense of the
religious liberty guaranteed by the Instrument. On December 26 he sent a letter
to the Speaker to be communicated to the Parliament. He had no wish to give
countenance to the opinions and practices imputed to Naylor, "yet We, being
entrusted in the present government, on behalf of the people of these nations;
and not knowing how far such proceedings (wholly without Us) may extend in the
consequence of it, do desire that the House will let Us know the grounds and
reasons whereupon they have proceeded." This letter disquieted the House.
Several members expressed doubt that even with the Lords' judicial power added
to its own the House could justify the sentence. No reply was made to the
Protector's letter. The outcome of the case was to cause dissatisfaction with
the existing system among both the friends and the enemies of religious
freedom. The former saw the guarantee of the Instrument set at naught; the
latter concluded that the law did not give enough latitude in the punishment of
blasphemers.
The second great controversy arose over the Militia Bill. In 1655, to
meet the threat of Royalist risings, England had been divided into several
districts, over each of which was placed a major-general. Provision was made
for calling out the loyal militia of a district to meet any emergency. The cost
of the scheme was met by the "decimation tax," a levy of ten per cent of the
income from the estates of all who had opposed the Parliament in the Civil
Wars. This illegal tax was justified on the ground that the disloyalty of the
Royalists caused the expense which it was designed to meet. The expedient
proved successful and on December 25, 1656, Cromwell's brother-in-law,
Major-General Desborough, introduced a bill in Parliament to regularize it. The
debate on first reading occurred on January 7, 1657. To the surprise of the
military faction, the measure was opposed by one of Cromwell's sons-in-law,
John Claypole, and by the Irish Lord Broghil, who was known to be very close to
Cromwell. At once an anti-military party took form. It was composed of most of
the civilian officeholders of the Cromwellian government, who took their cue
from Claypole and Broghil; of the lawyers, who had always resented military
rule; and of those unattached civilian members who were not deeply implicated
in the past actions of the Army. The purpose of this party was to combine with
the Protector and by this means to destroy the influence of the Army. Cromwell
must have intimated his willingness to accept a civilian alliance as a
substitute for the military support on which he had hitherto relied. Thus was
consummated that confederation between Cromwell and the "corrupt interests" at
which, according to the republican Ludlow, Cromwell had aimed as early as the
dissolution of the Rump Parliament. The major-generals, headed by Lambert and
Desborough, raged at this unexpected check, but they were decisively defeated.
On January 29 the Militia Bill was rejected.
A new fruit of the alliance appeared on February 23, when Alderman Packe
of London, whom Cromwell had knighted in 1655, introduced the "Humble Address
and Remonstrance" which became the Humble Petition and Advice. By this
Remonstrance Cromwell was to be declared king and a second legislative chamber,
a sort of House of Lords, was to be instituted. It was hoped that a return to
the old constitution would put an end to the uncertainties and disorders from
which England suffered and put an end also to the military rule which those
disorders made unavoidable.
Monarchy had always had its champions. Apparently the first draft of the
Instrument of Government carried the title King rather than Protector. In the
Parliament of 1654, when the Instrument was under debate, a motion to change
the title of Protector to King received a little support. It is not clear that
these proposals carried with them the principle of hereditary succession. In
the Parliament of 1654 Lambert had been one of those who urged that the
Protectorship be made hereditary; it has been thought, however, that Lambert,
who was expected to succeed Cromwell, supported the proposal with the secure
foreknowledge that it would be defeated. In 1654 James Howell in his
Admonition to My Lord Protector and his Council commended hereditary
monarchy. Election, he said, produced contests between rivals and inevitable
turmoil. Moreover, each elective prince felt obliged to enrich his family out
of the public treasury in his turn; inheritance of the throne prevented this
plunder. Oddly enough, the pamphlet concluded with a recommendation, not that
the Protectorate be made hereditary in the house of Cromwell, but that Cromwell
make a treaty with Charles Stuart providing that the latter should succeed him.
A tract of 1656, A Copy of a Letter Written to an Officer of the Army by a
True Commonwealth's-man, and No Courtier, urged that Cromwell be made king
and that the crown be hereditary. Those who risked more, deserved more; the
Protector should be rewarded with the crown. Election produced faction and
civil war; the wicked kings usually were the elective ones; elective
governments were more short-lived than hereditary monarchies.
Despite his bias toward monarchy, Cromwell had felt constrained to
refuse the title of king when it was first offered to him in the Instrument. He
praised the Instrument of Government because it made the chief magistracy
elective. "This hath been my principle; and I liked it, when this Government
came first to be proposed to me, that it puts us off this hereditary way. ... I
am speaking as to my judgment against making it hereditary: to have men chosen,
for their love to God and to Truth and Justice; and not to have it hereditary.
For as it is in Ecclesiastes: 'Who knoweth whether he may beget a fool or
wise?' Honest or not, whatever they be, they must come in, upon that account;
because the government is made a patrimony."2 These were the
principles of the Army, and they may have been Cromwell's principles as
well.
In the fall of 1656 the question of the succession was widely discussed.
Major-General Jephson proposed in the House that the office of Protector be
made hereditary instead of elective. Most of the officers were opposed to this
plan, but apparently they were less hostile to the proposal that the Protector
be given authority to nominate his successor. It was thought that this device
would avoid the inconveniences of both inheritance and election. Sindercomb's
attempt to assassinate Cromwell on January 8, 1657, gave new stimulus to the
discussion. Some supporters of the Protectorate argued that dangers of this
sort could be eliminated by restoring the monarchy. On January 19 the elder
Ashe moved that the House request "that his Highness would be pleased to take
upon him the government according to the ancient constitution; so that the
hopes of our enemies' plots would be at an end. Both our liberties and peace,
and the preservation and privilege of his Highness, would be founded upon an
old and sure foundation." This provoked hot rejoinders and the matter was
dropped. The diarist Burton noted: "The debate fell asleep, I know not how, but
I believe it was by consent (as I heard Mr. Nathaniel Bacon and others say as
they came out) and only started by way of probation. I have not seen so hot a
debate vanish so strangely, like an ignis fatuus." At about this time
the Remonstrance which Packe introduced in February was being framed.
The proposal to restore kingship grew in part, no doubt, out of desire
to settle the succession, but it had a larger object as well. The party which
had opposed the Militia Bill supported the Remonstrance, and some of the
civilians who had voted for the Bill joined them. The officers almost solidly
opposed the Remonstrance. It is clear that the Remonstrance was intended to
place a firm civilian support under Cromwell and thus make him independent of
the Army.
Sir Charles Firth has fixed the authorship of the Remonstrance on Lord
Broghil and Sir John Glynne, who was Chief Justice of the Upper Bench; with
them were probably associated men like Lenthall, Whitelocke, Lisle, and
Fiennes.8 The Remonstrance contemplated the Restoration of the old
constitution of King, Lords, and Commons with some necessary alterations. The
Kingship was not to be hereditary, but the king was authorized to nominate his
successor. The "other House" — the term Lords was not used — was, of
course, not to consist of the old peers but of new nominees.
On February 27 one hundred officers of the Army called on Cromwell,
complained of the Remonstrance, and asked him to refuse to be made King.
Cromwell's language must have been a shock to them. He complained bitterly of
the Army, saying it had made him its drudge and had forced upon him all the
mistaken policies of the past. At last the Parliament was on the point of
making a settlement and he meant to stand by it. He proceeded to justify the
Remonstrance. The Commons needed a check or balancing power, "for the case of
James Naylor might happen to be your own case. By their judicial power, they
fall upon life and member, and doth the Instrument in being enable me to
control it?"
The reference to the Naylor case was a telling one and the suggestion
that the other House might check the Commons was probably persuasive to the
officers. If the Army became entrenched in the upper House, it would have
achieved that security at which it had aimed throughout its career. How deeply
the idea took root is shown by the fact that in 1659 the Army insisted that any
acceptable constitution must include a "select Senate" empowered to veto
measures passed by the popular chamber. In the course of a few days most of the
officers came to acquiesce in the main outlines of the scheme. The House spent
the month of March in debating the Remonstrance. The question of the title was
deferred to the last. Over the opposition of the Army party the Protector was
authorized to name his successor. The proposal of a second House was adopted
unanimously. This House was to consist of from forty to seventy members
nominated by the Protector and approved by the Commons. These persons were to
hold office for life or until "legally removed"; no method of removal, however,
was provided. The judicial power of the "other House" was limited to cases of
privilege and impeachment and appeals from the courts of common law and
Chancery. Neither the apportionment of seats in the House of Commons nor the
property qualifications of electors were mentioned, but since the Parliament
was to represent the three kingdoms it must have been intended that the
provisions of the Instrument obtain rather than earlier practice. An intricate
set of qualifications limited the franchise and the right to sit in the Commons
to supporters of the Long Parliament and the Protectorate. It was assumed but
not stated that the two Houses and the chief magistrate would share the
legislative power. The Council of State was transformed into a Privy Council,
the members of which were to be appointed by the Protector with the consent of
the Council and of both Houses of Parliament and to be removed by the Protector
with the approval of Parliament. The Protector was to govern with the advice of
the Council. He might dispose of the armed forces with the consent of
Parliament, or with the consent of the Council if Parliament were not in
session. Appointments to judicial, military, and administrative positions were
to be approved by Parliament. A fixed revenue of 1,300,000 pounds a year was
conferred upon the Protector.
The character of the party which sponsored the Remonstrance was shown by
the articles on religion. There was to be a national church teaching a uniform
Confession of Faith, the terms of which were to be agreed upon by the Protector
and the Parliament. Religious toleration was to extend to all who believed in
the Trinity except papists and prelatists and those who published horrid
blasphemies or held forth licentiousness or profaneness under the profession of
Christ. Laws were to be passed against the Quakers. This was considerably less
generous than the corresponding provisions of the Instrument of Government, nor
was there a clause like that in the Instrument rendering void any act abridging
religious freedom. Perhaps, however, the friends of liberty of conscience felt
that the vetoes of the other House and the Protector would provide a better
defense than a paper guarantee.
On March 24 and 25 the question of the title was debated. The chief
officers of the Army — Lambert, Fleetwood, and Desborough — argued
violently against kingship, but the civilian party easily carried the day. On
March 31 the Humble Petition and Advice, as the Remonstrance was now called,
was offered to Cromwell with the stipulation that he accept or reject it as a
unit. He asked for time in which to seek divine guidance. There was widespread
opposition among the officers and the soldiers of the Army to a restoration of
kingship. Aside from all other considerations they must have felt that it would
be an act of self-stultification to set up that which they had recently
overthrown. The gathered churches petitioned Cromwell not to accept the title.
On April 3 he answered to the Parliament, "I have not been able to find it my
duty to God and you to undertake this charge under that title."
The House resolved not to accept this refusal and on April 8 a committee
went to Cromwell to repeat the offer. Cromwell asked that the House explain the
reasons why he should acquiesce. A committee was appointed for this purpose and
several conferences were held with the Protector through the month of April.
The members of the committee argued that "this nation hath ever been a lover of
monarchy" and was entitled to a king. The laws of the land were inextricably
interwoven with the title, and any other title introduced uncertainty and
insecurity. A king was limited by the law, whereas there were no settled bounds
to the power of a Protector. Cromwell replied that these reasons were forceful
but not conclusive. He was reluctant to wound the godly people who disapproved
of kingship and he himself felt awe at God's blasting of monarchy. He concluded
the conferences by detailing points of the Petition and Advice which he
believed in need of amendment.
The House busied itself with the proposed changes and on May 6 received
word that the Protector would meet it on the following day. Cromwell had made
up his mind to accept the crown and told Desborough as much. Desborbugh replied
that he would then quit the Army. Lambert and Fleetwood had made the same
resolution. These resignations would cause a cleavage which would extend down
through all the ranks of the Army, and therefore Cromwell hesitated. In the
meantime Colonel Pride, he of Pride's Purge, learned of Cromwell's decision
from Desborough. He busied himself securing the signatures of officers to a
petition asking Parliament not to press the Protector further. Cromwell
deferred his meeting with Parliament for a day and on May 8 definitely declined
the title of king.
Now the officers took the initiative in pushing forward the Petition and
Advice. Many of the advocates of kingship opposed the adoption of the
constitution without that feature. Nevertheless the Army party carried the day;
the title of Protector was adopted, and on May 25 Cromwell accepted the
Petition and Advice. On June 26 a "Humble Additional and Explanatory Petition
and Advice" was accepted by the Protector. This measure clarified some of the
points about which Cromwell had raised questions during the conferences and
conferred upon him the important power of choosing the original members of the
other House without the approval of the Commons. On the same day the House
adjourned itself until the twentieth of January following.
At the end of 1657 Cromwell selected his other House and summoned the
members to meet as a House of Parliament on January 20, 1658. He addressed the
two Houses on that day, and was followed by Nathaniel Fiennes, one of the
commissioners of the Great Seal. Fiennes praised the new constitution in the
language ordinarily used of mixed monarchy.4
This constitution of a chief magistrate, and two Houses of Parliament,
is not a pageantry, but a real and well-measured advantage to itself and to the
commonwealth, and so consonant to reason, that it is the very emblem and idea
of reason itself, which reasoneth and discourseth by a medium between two
extremes. If there be two extremes, and the one vary from the other; how shall
they be reconciled, if there be no medium to bring them together? ... If some
hazard must be run in popular elections, to preserve the people's freedoms; may
there not be some help therein, by the election of a chief magistrate, that it
turn not at any time to its own prejudice? If anything inconvenient should
chance to slip out at one door, must it not pass two more, before it come
abroad, to the detriment of the people? How exact, and of how great respect and
authority will be all your acts, laws, and resolutions, whenas after they have
passed the examination of that great body, which sees with the eyes of the
three nations, and is acquainted with the condition, and sensible of the
necessities of every individual part thereof, they shall then pass a second
scrutiny, and be published and refined by such as, during life, shall make it
their business either to fit themselves for, or to be exercised in, things of
that nature; ... and whenas, after all this, they must pass also the judgment
and assent of the chief magistrate, who is placed on high, as upon a
watchtower, from whence he may behold at one view and discover the state of the
whole body politic, and every part thereof; and see not only near at hand, but
also afar off, how it standeth in relation to foreign states, as well as to its
own parts within itself.
This happy rhetoric was not justified by the event. Cromwell had made a
grave mistake. The Petition and Advice had originally provided for a commission
of forty-one members of the Commons to determine the qualifications of members
elected to the House. At Cromwell's request this provision was repealed by the
Additional and Explanatory Petition. Instead, elected members were to take
their seats but were to suffer a fine of 1000 pounds if they were found to have
done so without being duly qualified. There was now no machinery for excluding
the republicans to whom the Council of State had refused seats when the
Parliament first met; accordingly, they entered the House of Commons. The
consequences of this were aggravated by the fact that Cromwell had called some
of his ablest and most loyal supporters from the Commons to the other House.
The republican leaders, through years of experience in the Long Parliament, had
become masters of debate and dilatory tactics, and almost at once they began to
obstruct the course of government. When it became necessary to reply to a
communication from the other House, the question whether they should be called
Lords, as the Protector had termed them in his speech, was raised. To concede
that title was to grant the other House a voice in legislation, which of course
was intended in the Petition and Advice but was not expressed. Scot and
Haslerig spoke long and often against the term Lords. Scot showed that he had
read Harrington's Oceana. There had once been a justification for the
Lords, he argued, because they possessed estates and interest.
Anciently, the bishops, abbots, and lords, their tenants, and relations,
could engage half England. The Providence of God hath so ordered it, that
England is turned a commonwealth, and do what you can, you cannot make it
otherwise; and if you join any with you in the legislature, it will not do your
work.
The administrations of God's dealings are against you. Is not God
staining the pride and glory of the world? Is there anything but a commonwealth
that flourishes; Venice against the pride of the Ottoman family. All their
mountains are pulled down. God governs the world, as he governs his Church, by
plain and low things. It was this that led your Long Parliament; the providence
of God, that virtue and honesty should govern the world; not that I am for
Fifth Monarchy.
He concluded that if power were not exclusively in the people, "You must
put on the King's head again, which was surely taken without his consent and
the Lords' too."
This venture into political science puzzled the military men.
Major-General Boteler replied to "the little worthy gentleman," "These are the
qualifications, religion, piety, and faithfulness to this commonwealth. They
are the best balance. Those persons have it. It is not estates will be the
balance." And Major Beake contributed a realistic comment: "The sword is there.
Is not that also a good balance?
He that has a regiment of foot to command in the Army, he is as good a
balance as any I know, and can do more than
The civilian supporters of the Petition echoed Fiennes' arguments.
Sergeant Maynard said, "I profess to you, I am not ambitious. I would be lower.
I would give my negative, if it were put, that we should have a free
legislature within these walls. You know what hath been done here in a morning.
This Parliament did pass more in one month than the best student in England can
read in a year, and well if he can understand it then. There is nothing can be
well done by man. I should suspect myself. A check is necessary upon us."
The Commons never sent its reply to the other House. On January 25 the
Protector had addressed the Parliament, urging it to deal with the pressing
foreign and domestic problems, but the Commons disputed the title of the Lords
from January 25 to February 4. On the latter day Cromwell appeared unexpectedly
at Westminster and addressed the two Houses. He reproached the Commons for
calling into question the settlement they had sworn to uphold. He had been
promised a second House, in the conferences on the Petition and Advice, to
interpose between him and the Commons and prevent "tumultuary and popular
spirits." But some members were intriguing with the Army to institute a
republic and others were acting on behalf of Charles Stuart. Since this was the
outcome of their sitting, he dissolved the Parliament.
Bulstrode Whitelocke had endeavored to dissuade the Protector from this
action: "A little time would cool these heats, and bring the Parliament into a
better temper." And indeed Cromwell appears always to have been impatient and
peremptory with his Parliaments. But the situation was serious. A republican
conspiracy which revolved about the House of Commons was on foot. A petition,
the same that was presented to Richard's Parliament by Samuel Moyer a year
later, was being circulated among the radical sectarians of London. It was
addressed to "the Parliament of the commonwealth of England" and asked for a
succession of free Parliaments which would exercise supreme power in government
and control the militia. Another and inconsistent request was intended to win
over the Army, that "the officers and soldiers who have hazarded their lives
for the nation's liberty, may not be turned out of their respective employments
without a legal trial at a court-martial, that so the military power may be
preserved in the hands of such, who are not merely mercenary, neuters, or
disaffected." There was a plea also "that no tender conscience may be
oppressed." The petition as a whole was a demand for the overthrow of the
Protectorate. Cromwell in his speech of dissolution bracketed this petition
with the tampering with the Army; both were the work of republicans within the
House. Perhaps the dissolution averted the fate which befell Richard in
1659.
NOTES
(1) The chief source for these dealings is John T. Rutt,
ed., Burton's Parliamentary Diary (London, 1828).
(2) Speech of January 22, 1655. S. C. Lomas, ed.,
Carlyle's Cromwell (London, 1904), ii, 422-423.
(3) Firth, Last Years of the Protectorate
(London, 1909), i, 128.
(4) Commons Journal, vii, 582.
|
|
| |
