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Making the Instrument of Government

Published online by Cambridge University Press:  16 January 2014

George D. Heath III
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Extract

The Instrument of Government was England's first and, if we except the Humble Petition and Advice, its only written constitution. It lasted only a little over three years, from 1653 to 1657, and was soon cast aside and all but forgotten in the rapid sequence of events which followed Cromwell's death: the restoration of the Rump, then of the Long Parliament, and finally of the King himself. Thus it is definitely an aberration so far as English constitutional development is concerned, but to an American, in whose country the principle of the written constitution and its concomitant principle of the limitation of legislative sovereignty have won out, the Instrument is of much greater interest.

In order to comprehend fully why the Instrument was made and what it was designed to achieve, the role of the New Model Army and its relation to Parliament must be considered. This army had become a quasi-political body as far back as the summer of 1647 when it first assumed the role of champion of political reform. In its Declaration of the Army it declared that it was not “a mere mercenary army, hired to serve an arbitrary power of a State, but called forth and conjured by the several declarations of Parliament to the defense of their own and the people's just rights and liberties.” From there it had gone on to submit various proposals for the settlement of the kingdom, such as the Heads of the Proposals and the Agreement of the People.

Type
Research Article
Information
Journal of British Studies , Volume 6 , Issue 2 , May 1967 , pp. 15 - 34
Copyright
Copyright © North American Conference of British Studies 1967

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References

1. Rushworth, John, Historical Collections of Private Passages of State (London, 1659–1701), VI, 515Google Scholar.

2. Rutt, J. T. (ed.), Diary of Thomas Burton Esquire (London, 1828), III, 246Google Scholar.

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4. Ibid., II, 589. A contemporary pamphlet by the army's journalist, Marchamont Nedham, complained of the Rump's “keeping supreme legislative Power and executive Power in the same persons” which was “a marvellous inlet of corruption and tyranny”; but in keeping them apart, “flowing in distinct channels … lies the grand Secret of Liberty a good Government.” It went on to point out that “it was the wisdom and care of our Ancestors, so to temper the Government of our Nation in time past that they left the supreme Law-making Power among the People in Parliament to sit at times, and to be trusted the execution of Law, with the mysteries of Government in the hands of a single Person and his Council.” Nedham, Marchamont, A true case of the state of the Commonwealth of England, Scotland and Ireland, listed in Catalogue of the Pamphlets,, Books, Newspapers, and Manuscripts … collected by George Thomason, 1640-1661 (London, 1908), II, 56Google Scholar, hereafter cited as Thomason Catalogue.

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16. Rutt, , Diary of Burton, IV, 63Google Scholar. This evidence was corroborated when on June 17, 1659, after the Rump had been restored, and when Sir Henry Vane and Major-General John Lambert were allies, a royalist newswriter wrote Sir Edward Hyde: “Sir H. V[ane] in jest (so much like earnest that no man can distinguish) taunts Lambert with the Instrument, Major-Generalship, etc., to which the other only replies that he has recanted publicly.” Ogle, O., Bliss, W. H., Macray, W. D., and Routledge, F. J. (eds.), Calendar of the Clarendon State Papers (Oxford, 1869–1876), IV, 239Google Scholar.

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18. PRO, Bordeaux to Brienne, Dec. 6/Nov. 26, 1653, French Transcripts; Gardiner, , Commonwealth and Protectorate, II, 270Google Scholar. Whitelocke asserted that Lambert had received legal training at one of the Inns of Court. SirWhitelocke, Bulstrode, Memorials of the English affairs … from the beginning of the reign of King Charles the First, to King Charles the Second his happy restauration (London, 1682), p. 254Google Scholar.

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22. It is of interest to quote Ludlow's passage in full: “and having sufficiently alarmed those interests [the lawyers and clergy] and shown them their danger from the Convention [the Nominated Parliament] he informs them farther, that they cannot be ignorant of the confusion that all things are brought into by the immoderate zeal of those in authority, and to what extremity matters might be reduced if permitted to go on; possibly, said he, to the utter extinction of law and gospel amongst us; and therefore advised that they would join their interests to his, in order to prevent this inundation. His proposition was readily embraced by the corrupt part of the lawyers and clergy, and so he became their Protector and they became the humble supporters of his tyranny.” Ibid., I, 365.

23. Birch, , State Papers of Thurloe, I, 641.Google Scholar

24. The celebrated moderate Presbyterian minister, Richard Baxter, expressed it thus: “He [Cromwell] can now conjure up at pleasure some terrible apparition of agitators, Levellers, and such like, who, as they affrighted the King from Hampton Court, shall affright the people to fly to him for refuge.” Sylvester, M. (ed.), Reliquiae Baxterianae, or Mr. Richard Baxter's narrative of the most memorable passages of his life and times faithfully published from his own original manuscripts (London, 1696), p. 70Google Scholar.

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28. Gough, J. W., Fundamental Law in English History (Oxford, 1955), p. 112Google Scholar. In the Parliament of 1659 a member, Colonel Birch, said of the Instrument: “other foundation could no man lay. It was said to be our Magna Charta.” Rutt, , Diary of Burton, IV, 61Google Scholar.

29. Gardiner, , Constitutional Documents, pp. 406, 410–11Google Scholar: Inst. of Gov., Arts. VIII, XII, XVI, XVII. Nedham put it thus: “it was agreed to some such solid and certain course of settlement (as near as may be with the most convenience) to our ancient way of government, by supreme magistrate and parliaments.” Nedham, , State of the Commonwealth, p. 27Google Scholar.

30. Rutt, , Diary of Burton, IV, 61Google Scholar. In this connection it is interesting to note that Lambert was described as having “a subtle, working brain.” D.N.B.

31. Gardiner, , Constitutional Documents, pp. 405–06Google Scholar: Inst. of Gov., Arts I, II.

32. Ibid., pp. 406, 412, 414: Inst. of Gov., Arts. III-V, XXIII, XXVII, XXX.

33. Ibid., pp. 413-14: Inst. of Gov., Arts. XXV, XXVI.

34. Ibid., p. 416: Inst. of Gov., Art. XXXIV.

35. Ibid., p. 415: Inst. of Gov., Art. XXXII.

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38. Judging by their attitude on such crucial questions as leniency towards James Naylor, support of the Militia Bill, and opposition to the Humble Petition and Advice, the hard core of the military party in the protectoral council of which Lambert was the leader appears to have consisted of Charles Fleetwood, John Desborough, William Sydenham, Walter Strickland, and Sir Gilbert Pickering. On most issues they could probably pick up sufficient “floating votes” to have a majority. See D.N.B.

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40. Abbott, , Writings and Speeches, IV, 488.Google Scholar

41. Ibid., III, 546.

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44. Gardiner, , Constitutional Documents, p. 414Google Scholar: Inst. of Gov., Art. XXX.

45. Ibid., p. 406: Inst. of Gov., Art. IV.

46. Ibid., p. 406: Inst. of Gov., Arts. VII, VIII.

47. Petition of the three Colonels, Okey, Saunders, Alured, listed in Thomason Catalogue, II, 85Google Scholar.

48. Gardiner, , Constitutional Documents, p. 414Google Scholar: Inst. of Gov., Art. XXX.

49. Firth, C. H. and Rait, R. S. (eds.), Acts and Ordinances of the Interregnum (London, 1911), II, 824–1029Google Scholar.

50. Gardiner, , Commonwealth and Protectorate, II, 315–25Google Scholar.

51. Some Mementos for the Officers and Souldiers of the Army.

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53. Ibid., p. 407: Inst. of Gov., Art. IX.

54. Ibid., pp. 407-09: Inst. of Gov., Art. X.

55. Ibid. For a general discussion of electoral reform during the Interregnum and of the redistribution of seats under the Instrument, see Snow, Vernon F., “Parliamentary Reapportionment Proposals in the Puritan Revolution,” E.H.R., LXXIV (1959), 409CrossRefGoogle Scholar.

56. Gardiner, , Constitutional Documents, p. 411Google Scholar: Inst. of Gov., Art. XVIII. But see Trevor-Roper, H. R., “Oliver Cromwell and His Parliaments,” in Pares, R. and Taylor, A. J. P. (eds.), Essays Presented to Sir Lewis Namier (London, 1956), pp. 28–31Google Scholar, on how the scheme boomeranged in practice.

57. Gardiner, , Constitutional Documents, p. 410Google Scholar: Inst. of Gov., Art. XII.

58. This is exactly what happened in the Parliament of 1654 when the Government required the members to sign a Recognition which embodied the words of the indenture which the electors had taken on their behalf. All who refused to accept it were excluded. Gardiner, , Commonwealth and Protectorate, III, 32–33.Google Scholar

59. A Looking-Glasse or an Awakening Word to the Inferiour and Superiour Officers of the Army, listed in Thomason Catalogue, II, 163Google Scholar.

60. Gardiner, , Constitutional Documents, p. 411Google Scholar: Inst. of Gov., Art. XVII.

61. This is precisely what happened in the Parliament of 1656 when the protectoral council more or less arbitrarily excluded a large number of elected members whose political views it disapproved. SirFirth, Charles, The Last Years of the Protectorate (London, 1909), I, 11–12Google Scholar.

62. Gardiner, , Constitutional Documents, pp. 406, 412Google Scholar: Inst. of Gov., Arts. VIII, XXIII.

63. Ibid., p. 413: Inst. of Gov., Art. XXIV.

64. A Copy of a letter from an officer of the Army in Ireland to his Highness the Lord Protector, concerning his changing of the government, June 24, 1654, signed “R. G.,” listed in Thomason Catalogue, II, 150 (dated 8 June, 1656)Google Scholar.

65. Petition of the three Colonels.

66. Gardiner, , Constitutional Documents, p. 416Google Scholar: Inst. of Gov., Art. XXXV.

67. Ibid.: Inst. of Gov., Art. XXXVI.

68. Ibid.: Inst. of Gov., Art. XXXVII.

69. Ibid.: Inst. of Gov., Art. XXXVIII.

70. Gough, , Fundamental Law, pp. 31–32Google Scholar. Plucknett, Theodore. T., “Bonham's Case and Judicial Review,” Harvard Law Review, XL (1926), 30 ffCrossRefGoogle Scholar.

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75. Ibid., p. 406: Inst. of Gov., Art. VI.

76. Ibid., p. 414: Inst. of Gov., Arts. XXVII, XXX.

77. Ibid., pp. 409-10: Inst. of Gov., Art. XI.

78. Ibid., p. 411: Inst. of Gov., Art. XIX.

79. Ibid., 411-12: Inst. of Gov., Art. XX.

80. Ibid., p. 416: Inst. of Gov., Art. XXXIV.

81. Ibid., pp. 414-15: Inst. of Gov., Art. XXXI.

82. A Copy of a letter from an officer of the Army in Ireland.

83. A Looking-Glasse.

84. Rutt, , Diary of Burton, IV, 61.Google Scholar

85. A Copy of a letter from an officer of the Army in Ireland.