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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.

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