The Constitutional Documents of the Puritan Revolution. Samuel Rawson Gardiner
the Instrument of Government (No. 97, p. 405).
The Instrument of Government was intended to suit a Constitutional Government carried on by a Protector and a single House. The Protector stepped into the place of the King, and there were clauses inserted to define and check the power of the Protector, which may fitly be compared with those of the Heads of the Proposals. The main difference lay in this, that the Heads of the Proposals were intended to check a King who, at least for some time to come, was to be regarded as hostile to the Parliament, whereas the Instrument of Government was drawn up with the sanction of the Protector, and therefore took it for granted that the Protector was not to be guarded against as a possible enemy. His power however was to be limited by Parliament, and still more by the Council.
Parliament was to be elected and to meet, not, as according to the Agreement of the People, once in two, but once in three years (§ 7), and to remain in session at least five months (§ 8). It was to be elected in accordance with a scheme for the redistribution of seats based on that set forth in the Agreement of the People (§ 10), the Protector and Council having leave to establish constituencies in Scotland and Ireland, which were now to send members to the Parliament of Westminster. It was the first attempt at a Parliamentary union between the three countries, carried out at a time when such a union was only possible because two of the countries had been conquered by one. Instead of the old freehold franchise, or of the rating franchise of the Agreement of the People, the franchise in the counties was to be given to the possessors of real or personal estate to the value of £200 (§ 18). As nothing was said about the boroughs, the right of election would remain in those who had it under the Monarchy, that is to say, it would vary according to the custom of each borough. This however was of less importance than it would have been in former years, as one of the main features of the Instrument was an enormous increase of the number of county members, and a proportional decrease of the number of borough members. In those boroughs in which the corporations elected, the feeling by this time would be likely to be anti-Royalist. The disqualification clauses were less stringently drawn that in the Agreement of the People, but all who had abetted the King in the war were to be deprived of their votes at the first election and of the right of sitting in the first four Parliaments (§ 14). Those who had abetted the Rebellion in Ireland, or were Roman Catholics, were permanently disqualified from sitting or voting.
The Council was named in the Instrument itself. When vacancies occurred, Parliament was to give in six names, to be diminished to two by the Council, out of which one was to be selected by the Protector (§ 25). The chief officers of the State were to be chosen ‘by the approbation of Parliament.’
The clauses relating to the power of Parliament in matters of finance seem to have been modelled on the old notion that ‘the King was to live of his own’ in ordinary times. A constant yearly revenue was to be raised for supporting an army of 30,000 men — now regarded as a permanent charge — and for a fleet sufficient to guard the seas, as well as £200,000 for the domestic administration. The total amount and the sources of the necessary taxation were to be settled by the Protector and Council; Parliament having no right to diminish it without the consent of the Protector (§ 27). With respect to war expenses, they were to be met by votes of Parliament, except that in the intervals of Parliament the Protector and Council might raise money to meet sudden emergencies from war till the Parliament could meet (§ 30), which the Protector and Council were bound to summon for an extraordinary session in such an emergency (§ 23).
As to legislation, a Bill passed by Parliament was to be presented before the Protector. If after twenty days he had not given his consent, or induced Parliament to withdraw the Bill, it became law unless it were contrary to the Instrument of Government (§ 24).
As to administration, ‘the Chancellor, Keeper, or Commissioners of the Great Seal, the Treasurer, Admiral, Chief Governors of Ireland and Scotland, and the Chief Justices of both the Benches’ were to be chosen by the approbation of Parliament (§ 34). All other appointments were in the hands of the Protector.
The functions of the Council were of considerable importance. In all important matters the Protector had to act by its advice, and when Parliament was not in session it was to join him in passing Ordinances which were to be obeyed until in the next session Parliament either confirmed them or disallowed them (§ 30). On the death of the Protector it was the Council which was to elect his successor (§ 32).
The articles on Liberty of Worship (§§ 36, 37) are almost verbally taken from the Agreement of the People, except that for the clause ‘Nevertheless, it is not intended to be hereby provided that this liberty shall necessarily extend to Popery or Prelacy,’ is substituted ‘Provided this liberty be not extended to Popery or Prelacy, nor to such as, under the profession of Christ, hold forth and practise licentiousness.’
To obtain some sort of confirmation for this new Constitution, the returning Officer was to obtain from the electors by whom the members of Parliament were chosen a written acknowledgment ‘that the persons elected shall not have power to alter the government as it is hereby settled in one single person and a Parliament’ (§ 12).
The Instrument of Government suffered not only under the vice of ignoring the probable necessity of constitutional amendment in the future, as is shown by its silence on this head, combined with the elaborate provisions for a change in the amount of money set aside for fixed charges; but also under the vice of having no support either in traditional loyalty or in national sanction. If, however, we pass over these all-important faults, and discuss it from the purely constitutional point of view, it is impossible not to be struck with the ability of its framers, even if we pronounce their work to be not entirely satisfactory. It bears the stamp of an intention to steer a middle course between the despotism of a ‘single person’ and the despotism of a ‘single House.’ Parliament had supreme rights of legislation, and the Protector was not only sworn to administer the law, but every illegal act would come before the courts of law for condemnation. Parliament, too, had the right of disapproving the nominations to the principal ministerial offices, and of voting money for conducting operations in time of war. Where it fell short of the powers of modern Parliaments was in its inability to control administrative acts, and in its powerlessness to refuse supplies for the carrying on of the government in time of peace. A modern Parliament can exercise these powers with safety, because if it uses them foolishly a government can dissolve it and appeal to the nation, whereas Cromwell, who was but the head of a party in the minority, and whose real strength rested on the army, did not venture to appeal to the nation at large, or even to appeal too frequently to the constituencies who were to elect his Parliament.
The real constitutional safeguard was intended to be in the Council. Ultimately, after the death of the Councillors named in the Instrument, the Council would indirectly represent the Parliament, as no one would have a place on it whose name had not been one of six presented by Parliament. In the Council, the Protector would be in much the same position as a modern Prime Minister in his Cabinet, except that each member of the Council held his position for life, whereas a modern Prime Minister can obtain the resignation of any member of the Cabinet with whom he is in strong disagreement. On the other hand, the greater part of the members of a modern Cabinet are heads of executive departments, and thus have a certain independent position of their own. In some respects indeed, the relations between the Protector and the Council were more like those between an American President and the Senate in executive session, than those between an English Prime Minister and the Cabinet. The members of the American Senate are entirely independent of the President, as the members of the Council of the Protectorate were entirely independent of the Protector when once they had been chosen. On the other hand, the two bodies differed in a most important particular. The tendency of the American Senate, which is never officially brought into personal contact with the President, is to be antagonistic to the President. The tendency of the Council of State, which was in daily contact with the Protector, was to work with him instead of against him.
The chief points in which the Parliamentary constitutional scheme (No. 101, p. 427) differed from the Instrument of Government will be best seen if given in a tabulated form:—
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Instrument of Government.
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