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Cromwell honestly strove to conceal from himself as from the world the purely military foundations of his power. His social ideal was wide as the poles from Strafford's, but events forced him round to the same political ideal. A more material difference is that the Protector had a powerful and victorious army behind him, and Strafford and his master had none.
On the breakdown of the Barebones parliament, the sphinx once more propounded her riddle. How to reconcile executive power with popular supremacy, what should be the relations between executive and legislature, what the relations between the church and the magistrate, — these were the problems that divided the dead king and the dead parliament, that had baffled Pym and Hyde, that had perplexed Ireton and the officers, and now confronted Oliver. It was easy to affirm the sovereignty of the people as an abstract truth. But the machinery ? We must count one of the curiosities of history the scene of this little group of soldiers sitting down to settle in a few hours the questions that to this day, after ages of constitutionmongering and infinitely diversified practice and experiment all over the civilised world, beset the path of self-governing peoples. No doubt they had material only too abundant. Scheme after scheme had been propounded at Oxford, at Uxbridge, at Newcastle, at Newport. The army had drawn up its Heads of Proposals, and these were followed, a few days before the king was brought to the scaffold, by the written constitution known as the Agreement of the People. The officers had well-trodden ground to go upon, and yet the journey was nearly as obscure as it had ever been.
In face of the Lord-General, as in face of the Lord's Anointed, the difficulty was the same, how to limit the power of the executive over taxation and an army, without removing all limits to the
power of the representative legislature. Cromwell, undoubtedly in earnest as he was in desiring to restore parliamentary government, and to set effective checks on the Single Person, nevertheless by temperament, by habit of mind engendered of twelve years of military command, and by his view of the requirements of the crisis, was the last man to work a parliamentary constitution. A limited dictator is an impossibility, and he might have known it, as Napoleon knew it. If Cromwell and his men could not work with the Rump, if they could not work with the saints, the officers as they rapidly hammered together the Instrument of Government might have known that no ingenuity would make their brand-new carpentering watertight.
The Magna Charta that now installed Oliver as Lord Protector of the Commonwealth, and survived for over three years, though loose enough in more than one essential particular, was compact. The government was to be in a single person and a parliament, but to these two organs of rule was added a Council of State. This was a very imperfect analogue of the old Privy Council or of the modern cabinet. Its members were named in the Act and sat for life. The Council had a voice, subject to confirmation by parliament, in appointments to certain of the high offices. Each of the three powers was a check upon the other two. Then came the clauses of a reform bill, and Cromwell has been praised for anticipating Pitt's proposals for demolishing rotten boroughs; in fact, the reform bill was adopted bodily from the labours of Ireton, Vane, and the discarded parliament. The county franchise was restricted to possessors of property of two hundred pounds.
The parliament, a single House, was to sit for at least five months in every three years. This got rid of Cromwell's bugbear of perpetuity. The
CHAP. 1 THE NEW CONSTITUTION 331 Protector if supported by a majority of his Council could summon a parliament in an emergency, and in case of a future war with a foreign state he had no option. Scotland and Ireland were each to send thirty members. One sub-clause of most equivocal omen made a majority of the Council into judges of the qualifications and disqualifications of the members returned; and as we shall see, this legalisation of future mutilations of the legislature by the executive did not long remain a dead letter. Every bill passed by parliament was to be presented to the Protector for his consent, and if he did not within twenty days give his consent, then the bill became law without it, unless he could persuade them to let it drop. The normal size of the army and navy was fixed, and a fixed sum was set down for civil charges. The Protector and Council were to decide on ways and means of raising the revenue required, and parliament could neither lower the charges nor alter ways and means without the Protector's consent. In case of extraordinary charge, as by reason of war, the consent of parliament was needed; but if parliament were not sitting, then the Protector with the majority of his Council had power both to raise money and to make ordinances, until parliament should take order concerning them. This power of making provisional laws was not exercised after the assembling of the first parliament.
The two cardinal questions of control of the army and the settlement of religion were decided in a way little dreamed of by Eliot or Coke, by Pym or Hampden. While parliament was sitting, that is for five months out of three years, its approval was required for the disposal of forces by land and sea; when parliament was not sitting, the Protector with the assent of a majority of the Council could do as he pleased. The religious clauses are vague, but they are remarkable as laying down for the first time with authority a principle of toleration. A public profession of the Christian religion as contained in the scriptures was to be recommended as the faith of these nations, and the teachers of it were to be confirmed in their subsistence. This embodies, as the Agreement of the People had done before, the principles of establishment and endowment of some form of national church. But adherence was not to be compulsory, and all Christians outside the national communion, save papists, prelatists, and such as under the profession of Christ hold forth licentiousness, were to be protected in the exercise of their own creed. So far had reformers travelled from the famous section of the Grand Remonstrance twelve years before, where the first stout forefathers of the Commonwealth had explicitly disavowed all purpose of letting loose the golden reins of discipline in church government, or leaving private persons to believe and worship as they pleased. The result reduced this declaration to little more than the plausible record of a pious opinion. The independents when they found a chance were to show themselves as rigorous if not quite as narrow as other people. Meanwhile, in excluding the prelatists, time was to show that they excluded the majority.
The Instrument of Government had a short life, and not an important one. It has a certain surviving interest, unlike the French constitutions of the Year III., the Year VIII., and other ephemera of the same species, because, along with its sequel of the Humble Petition and Advice (1657), it is the only attempt in English history to work in this island a wholly written system, and because it has sometimes been taken to foreshadow the constitution of the United States. The American analogy does not hold. The Cromwellian separation of executive from legislative power was but a fitful and confused attempt. Historically, there are no
THE AMERICAN SYSTEM:
indications that the framers of the American constitution had the Instrument in their minds, and there are, I believe, no references to it either in the pages of the Federalist, or in the recorded constitutional debates of the several States. Nor was it necessary for the American draftsmen to go back to the Commonwealth, for their scheme was based upon state constitutions already subsisting, and it was in them that they found the principle of fundamentals and constitutional guarantees not alterable like ordinary laws. Apart from historical connection the coincidences between the Instrument and the American constitution are very slight, while the differences are marked. The Protector is to be chosen by the Council, not by the people. He has no veto on legislation. His tenure is for life : so is the tenure of the Council. There is no direct appeal to the electorate as to any executive office. Parliament, unlike Congress, is to consist of one House. The two schemes agree in embodying the principle of a rigid constitution, but in the Instrument there are according to Oliver himself only four fundamentals, and all the rest is as liable to amendment or repeal, and in the same way, as any other statute. This is essentially different from the American system alike in detail and in principle. Make by Act an American president master for life, with the assent of a small council of persons nominated for life, of the power of the sword, of the normal power of the purse, of the power of religious establishment, for thirty-one months out of thirty-six, and then you might have something like the Instrument of Government. The fatal passion for parallels has led to a much more singular comparison. Within the compass of a couple of pages Mommsen likens the cynical and bloodthirsty Sulla to Don Juan because he was frivolous, to George Washington because he was unselfish, and to Oliver Cromwell because they both set up or restored order and a constitution.