The instrument of government
The Instrument of Government was hatched beyond the public gaze during the closing weeks of 1653 and little was ever revealed about its background or gestation. It clearly drew upon earlier constitutional plans, including the draft settlement prepared by the senior army officers in summer 1647, the Heads of the Proposals, the final officers’ version of the Agreement of the People of early 1649 and the Rump’s abortive Government Bill of spring 1653, but much seems to have been new and written from scratch. Little was and is known about its authors. Many contemporary sources identified its main author as Major General John Lambert, who reportedly “first contrived and brought forth the Instrument” and who, when the Instrument was attacked in parliament at the end of the 1650s, sprang to its defence and all but admitted authorship. But several sources also stressed that Lambert did not act alone in drafting and advancing the constitution, instead ascribing responsibility to a group or “junto” of between five and eight senior officers, though sadly the other members of this group were generally not identified. The divine Richard Baxter linked Lambert with Major General James Berry as the “two chief men” involved in drafting the Instrument. A third name may be added, that of Major General Thomas Kelsey, who in 1659 was alleged to have “had a great hand in the very change of the Government from a Commonwealth to a Single Person” and to have altered “something” within the constitution; interestingly, Kelsey’s role in amending the constitution was placed chronologically before his alleged role in persuading the Nominated Assembly to resign. On the other hand, another later account, of 1659, suggested that the authorship of the Instrument may have rested with a mixed group of soldiers and civilian politicians, identifying the “5 or 6 persons who projected and designed the Protectoral Government”, those “who at first contrived and brought forth the Instrument and Government”, as Lambert, Colonel William Goffe, Henry Lawrence, John Thurloe and Oliver St John. Lambert was as usual accorded eminence, but only one other military figure (Goffe) was named, Major Generals Berry and Kelsey were not included, and instead three of the five named authors were exclusively civilians (Lawrence, who served as President of the Council throughout the Protectorate, Secretary of State Thurloe and St John). However, we should note that Oliver St John vigorously denied any involvement in the establishment of the Protectorate and later claimed that he was dangerously ill throughout the whole period from October 1653 until May 1654.
Whoever they were, the authors of the Instrument had clear intentions. The constitution restored separate and powerful legislative and executive arms of government, while building in a series of checks and balances to prevent one arm either going too far without the consent of the other or attacking and undermining the other. Legislative power was vested in an assured succession of triennial parliaments, the first to meet in September 1654. They were to comprise a single chamber of 460 elected MPs, representing England, Wales, Scotland and Ireland. Accordingly, the constitution distributed the seats in a manner very different from a traditional early Stuart parliament; it also greatly revised the franchise and laid down new conditions on who could vote in elections for, and sit and serve in, the Protectorate parliaments. The constitution gave parliament a guaranteed minimum lifespan, during which it could only be dissolved with its own consent, though thereafter it could by implication be dissolved by a higher authority. There was provision for extra parliaments to be called and to meet in the intervals between the regular triennial parliaments if need arose. The constitution made detailed and complex provision for elections to be triggered and for the triennial parliaments to meet, even if the head of state or local officials for some reason failed to issue writs or convene elections. Parliament was given extensive legislative powers, to make new laws, and once bills had been approved by the House they would apparently automatically become law, even if the head of state failed to give his assent. However, the head of state had power to veto any parliamentary bill which in his sole opinion, against which there was no appeal, ran contrary to the constitution.
The constitution vested executive power in the hands of a permanent Council, comprising up to twenty-one members; the first fifteen founder-members were named within the constitution. This Protectoral Council was to be very different from the old royal Privy Council, for the king had the right to appoint and dismiss Privy Councillors entirely at will. In contrast, Protectoral Councillors could only be removed by death or by conviction for serious miscarriage and only after a long and complex procedure in which the head of state played no part. Similarly, the head of state played little role in appointing new Councillors to fill any vacancies, for again quite a long and complex procedure was laid down to draw up and whittle down a shortlist of candidates. In short, the constitution attempted to establish a Council which was at least semi-autonomous and semi-independent of the head of state. However, the Council was given very few powers of its own – alone it could do little more than elect a new head of state on the death of the old and vet newly-returned MPs to ensure they met the qualifications laid down in the constitution.
The constitution restored a single head of state, to be called a Lord Protector, who was to hold office for life. It was not a hereditary office, and on the death of one Lord Protector, his successor was to be elected by the Council. Oliver Cromwell was named in the constitution as the first Lord Protector. The Protector was built up as a substantial figurehead – state land and properties were vested in him, official documents were to run in his name, he was to be the font of honour and magistracy, he had power of pardon, he was provided with an assured annual income to maintain himself and the civil aspects of his administration, in effect he held a veto over parliamentary bills and in practice he exercise the power to dissolve parliament once its guaranteed minimum lifespan had expired. But most of the major and important powers needed to run the state – to make peace and war, to deploy the armed forces, to appoint to senior offices of state and to raise and spend large parts of the state’s finances – were not held by the Lord Protector alone, nor indeed by parliament or Council acting alone. Instead, clause after clause of the constitution laid down that these key powers were to be shared between at least two, generally all three, of these key players in central government. Thus in these crucial aspects of government, typically the Lord Protector could only act and exercise power if he first sought and obtained the advice and consent of a parliament if one was in session, or the advice and consent of the Council in the intervals between parliament. In some cases, decisions taken by Protector and Council when parliament was not sitting were to be reviewed, confirmed or rejected when the next parliament met.
The constitution made provision for a regular army of 30,000 men and for a navy of an unspecified size “convenient” for guarding the seas. But it also recognised that because of threats to security there would be a need to maintain the existing much larger army, at least for a time, and it did make allowance for funding the existing army, which in 1653-54 probably numbered over 55,000 men. The constitution also authorised the continuation of a ministry funded through the existing tithe system, at least until some better system had been found, but it stressed that no one was to be compelled to adhere to any particular faith or official church. Instead there was to be broad liberty of conscience for a variety of Protestants, though it would not extend to Catholics, to Prelatists – those who were actively promoting the restoration of an espiscopal church and system – or to anyone indulging in licentious practices.
The Instrument left some issues unclear and there are a few ragged edges, perhaps indicative of hasty drafting or revision. For example, in several places it mentions that the Channel Islands of Guernsey and Jersey were to be given seats in the new parliament, but in fact no such provision was made. The meaning of “triennial” was ambiguous, for in places the constitution states or implies that a new parliament was to meet every third year, with parliaments to meet in autumn 1654, 1657, 1660, 1663 and so on, thus limiting the duration of any one parliament to just under three years; however, other clauses state or imply that the three years ran from the date of the dissolution (not the first meeting) of the previous parliament, so that if the first parliament had sat from September 1654 until, say, March 1656, the next triennial parliament would not have fallen due until 1659. While article IV laid down that during parliamentary sessions the Protector needed parliament’s consent before disposing and ordering “the militia and forces, both by sea and land”, it stated that if parliament was not in session he needed council’s consent to “dispose and order the militia”, with no reference here to “the forces”. It is not clear whether, by accident or design, the constitution was drawing some distinction between the militia, that is the part-time, county-based defence units of England and Wales, and the regular armed forces, giving the Protector a freer hand to deploy them when parliament was not sitting. The Instrument contained no mechanism permitting or enabling its own amendment or revision; indeed, MPs and parliament were barred from making any changes to the existing text. In places, the constitution was gloriously vague, implicitly or explicitly leaving it to Protector and Council to sort out the distribution of seats in Scotland and Ireland, the size of the navy necessary to defend the state and the size and funding of the army over and above the 30,000 allowed for in clause XXVII. Much of Clause XXX has the feel of an afterthought, added on to an existing provision. Thus in the eight months or so before the first Protectorate parliament was to meet in September 1654, Protector and Council were given temporary powers to raise money to pay for the extra troops and, even more curiously, to make laws and ordinances, thus giving temporary but potentially sweeping legislative powers to the executive arm. In this awkward interval before parliament was to meet, Protector and Council were also given temporary powers to distribute the Scottish and Irish seats and to co-opt further Councillors, up to the maximum of twenty-one. In practice, Cromwell and his Council made extensive use of their temporary financial and legislative powers during 1654, renewing and imposing taxes and passing over 180 ordinances covering public, private and local issues.