Britain's Brief Attempt at Separation of Powers

Part III in a series on the Instrument of Government (1653).

To read Part II in this series, click here.

Having divested themselves of both the king and the lords, the Army officers in fashioning their new form of government now had the chance to try out separation of powers for the first and only time in English and wider British history. The forty-two articles of the Instrument of Government proposed a three-part government: Parliament, the Lord Protector, and the Council of State. Parliament would retain its position as the legislature of England. The laws were not to be altered or discarded except by its authority.[1] When the first Parliament under the instrument began sitting in September 1654, it could not be dissolved until after sitting for five months. Parliament also had to be summoned every three years.[2] It was to consist of 460 members: 400 from England, 30 from Scotland, and 30 from Ireland.[3] Parliament was to choose all the major officers of state when in session.[4] Finally, although the Lord Protector was to be commander-in-chief, Parliament was to have charge of raising money for supporting the army and navy, except in cases when Parliament was not in session and disorders arose in the Commonwealth. In such cases, the Lord Protector and a majority of the Council of State could raise the necessary money.[5] The comparison with the powers of Congress as laid out by Article I of the United States Constitution is striking.

The executive power (“the chief magistracy and the administration of the government”) of the Commonwealth was to be invested in the office of Lord Protector, with Oliver Cromwell chosen as the inaugural holder of the office.[6] Each new Lord Protector was to take a solemn oath:

that he will seek the peace, quiet and welfare of these nations, cause law and justice to be equally administered; and that he will not violate or infringe the matters and things contained in this writing, and in all other things will, to his power and to the best of his understanding, govern these nations according to the laws, statutes and customs thereof.[7]

The Lord Protector would be commander-in-chief of the armed forces and direct foreign policy with other nations.[8] Like the king before him, the Lord Protector would have charge of dispatching the writs to summon each new Parliament.[9] He could also summon Parliament whenever necessary.[10] All bills agreed upon in Parliament would be submitted to the Lord Protector for his consent. But if he did not give his consent within twenty days or failed to give Parliament satisfaction in the matter, the bill would become law anyway.[11] As to the succession, the office of Lord Protector would be elective. When the Lord Protector died, “another fit person” would be elected to succeed him, though unlike the United States Constitution, the electoral body would be smaller in the Instrument of Government.[12] All in all, the Lord Protector of the Commonwealth sounds an awful lot like the President of the United States in the powers he is specified to have. There were of course differences. The US President is not invested with “lands, tenements, rents, royalties, jurisdictions and hereditaments which remain yet unsold or undisposed” etc. as the Lord Protector was.[13] Still, another striking comparison.

The third body of government envisioned by the Instrument was the Council of State. Here, the comparison with the United States Constitution is not so clear cut. The United States Supreme Court was the one government institution invented de novo by the Founding Fathers in 1787 just as the Council of State was for the Army officers in 1653. In many ways the council was to be a revival of the old administrative and later privy council which had assisted the monarch in medieval and early modern England. A good indication of this was that the twenty-one life members of the Council would take an oath upon appointment, just as all royal councilors had since the thirteenth century.[14] However, it was clearly designed to also limit any Lord Protector’s autocratic tendencies. In military matters, foreign affairs, and the summoning of Parliament, the Lord Protector was to proceed “with the consent of the major part of the council.”[15] And the Lord Protector would not control its membership alone. In the article creating the Council of State, it was decreed that when any councilor died, Parliament would nominate six individuals to succeed him. The Council itself would then select two of the six for presentation to the Lord Protector. The latter would then elect the new councilor. Yet, if Parliament did not nominate any candidates after twenty days, the Council itself would nominate three men, of whom the Lord Protector would again elect one.[16] The Council was thus dependent on Parliament but could also act for itself.

Parliament, however, was also dependent upon the Council. All the names of the new elected Members of Parliament were to be returned to the Council who would then examine the names to make sure each member was suitable and not disbarred from election.[17] And the Council had power over the Lord Protector as well: they were to be the electoral body empowered to elect a new Lord Protector. Thirteen of the twenty-one members had to be present to form a majority. Until a new Lord Protector was elected, the Council of State would govern the Commonwealth with the powers of the Lord Protector.[18]

In the fourth and final installment in this series, I will close things out and give my final thoughts.

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[1] “Instrument of Government, Article VI.”

[2] “Instrument of Government, Articles VII and VIII.”

[3] “Instrument of Government, Article IX.”

[4] “Instrument of Government, Article XXXIV.”

[5] “Instrument of Government, Articles XXVII, XXIX, and XXX.”

[6] “Instrument of Government, Article II, Article III, and Article XXXIII.”

[7] “Instrument of Government, Article XLI.”

[8] “Instrument of Government, Articles IV and V.

[9] “Instrument of Government, Article XI.”

[10] “Instrument of Government, Article XXIII.”

[11] “Instrument of Government, Article XXIV.”

[12] “Instrument of Government, Article XXXII.”

[13] “Instrument of Government, Article XXXI.”

[14] “Instrument of Government, Articles II, II, XXVI, and XLII.”

[15] “Instrument of Government, Articles IV, V, XI, and XXIII.”

[16] “Instrument of Government, Article XXV.”

[17] “Instrument of Government, Article XXI.”

[18] “Instrument of Government, Article XXXII.”