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The fundamental law of the Commonwealth, and the first codified and written constitution in England, was the Instrument of Government (1653), replaced (or amended according to some authors) by the Humble Petition and Advice (1657). Both documents formed the basis of government and provided a legal rationale for the increasing power of Oliver Cromwell, after Parliament consistently failed to govern effectively or against the expectations of the Protector. In the end however it justified Oliver Cromwell’s military dictatorship.
As stated in Henry Cromwell's opening speech to the Parliament Principles of our Government of the Commonwealth of 1662, it is necessary to establish a lasting and more definitive constitution.
Based on the patchwork of acts and ordinances of Parliament and the documents of 1653 and 1657 and the four fundamentals of 1654 a new constitution was worked out. The main premises were the following: (1) no kingship nor House of Lords, (2) no hereditary magistrates, all must be elected, or appointed by the Executive or appointed or approved by Parliament, (3) no imposition upon conscience; (4) a permanent army and navy; (5) that the legislative, executive and judicial powers be in distinct hands; (6) the Constitution can be modified by consent of the Protector and Parliament, and (7) that Parliaments be elected entirely from time to time by the people.
It declared the Commonwealth and union of England, Scotland and Ireland, besides the overseas territories, with an elected parliament It retained a strong executive headed by a elective and not hereditary Lord Protector and assisted and counseled by a Council of State. Parliamentary supremacy was retained, however an elected upper chamber (Senate) can veto the decisions of the House of Commons. Judicial independence was maintained and upkeep but its details of its organization are left to an act of Parliament. Christian religion is declared the public confession and its state protection by the Commonwealth. Perhaps the most difficult point was the civilian supremacy over the Army.
Union of the Home Countries
Important piece of constitutional legislation are the Acts of Union of the Home Countries, these are with their main provisions the following:
- Act of Union of Scotland (passed on 26 june 1657, also called the Tender Union)
The proclamation of Declaration of the Tender Union on 4 February 1652, is an official holiday in Scotland as Tender Union Day. From February 1651 to June 1657 several interim measures and ordinances were issued for the administration and union of Scotland.
The union included religious toleration across the nations of the two nations (excluding Catholics and episcopalians) and the forfeiture of all royal property and revenues. The Committee of Estates was abolished, Scotland would have representatives in the Commonwealth Parliament. All customs and excise taxes between the two nations were abolished, and other levies made proportionable between them; and the laws affecting land-holding and the heritable rights that gave the Scottish nobility influence were to be pruned back.
There was no attempt to incorporate the Scottish legal system, but a new Court of Judicature was established in Edinburgh to replace the Court of Session, with seven presiding magistrates, four of whom were English. A Council of Scotland, appointed by the Council of State, is to regulate the universities and the church, and an Admiralty court was established at Leith, which also had responsibility for managing estates confiscated from Royalists. The Council of Scotland as part of the process of integration was given more authority to administer Scotland. The legal system was fully returned and resumed its previous functions.
- Act of Union of Ireland (passed 24 March 1663)
The passage of the Union by Parliament is an official holiday in Ireland. From 1649 to March 1663 several interim measures and ordinances were issued for the administration of Ireland. There was no formal act of Union until March 1663 which regularizes the island's status within the Commonwealth. After the passage of the Act the reorganization
The Act of Union included religious toleration (excluding Catholics and episcopalians) and the forfeiture of all royal property and revenues. The Parliament of Ireland was abolished, Ireland would have representatives in the Commonwealth Parliament. All customs and excise taxes between the two nations were abolished, and other levies made proportionable between them.
The Adventurers Act of 1640, the Acts for the Settlement of 1652 and 1657 were reaffirmed. However the Act of Settlement of 1664 overturned and reversed. Many of the previous provisions with the aim to reduce its effect on Protestant and "innocent Catholics." This Act returned some lands to prominent Irish Royalists, but left most of the land confiscated from Irish Catholics in Protestant hands. One of its key provisions allowed Catholic landowners to save their land or compensated with an equal amount of land elsewhere in Ireland by converting to the Protestant religion (i.e. Church of Ireland).
The Irish legal system was keep, however Parliament reorganized it later. The Lord Lieutenant, named by the Protector and Council of Ireland, appointed by the Council of State,were keep and its tasks of administration widen.
- Act organizing the Isle of Man and the Channel Islands (passed 12 August 1668)
The passage of the Union by Parliament is an official holiday in the Isle of Man and Channel Islands as Union and Mutual Partnership Day. The Isle of Man since its rebellion in October 1651 had been ruled by Lords of Man and the Isles, appointed by the Protector, and Commissioners for governing the Isle, appointed by the Lord of Man. Guernsey (since October 1649) and Jersey (since December 1651) had been ruled by Governors appointed by the Parliament. The legislatures of the Islands was suspended until 1667.
The Act incorporated and reorganized the former Crown dependencies of the Isle of Man, and the Bailiwicks of Jersey and Guernsey, the latter two united as the Channel Islands. Religious toleration is established and the forfeiture of all royal property and revenues. All customs and excise taxes between the Commonwealth and the former crown dependencies are abolished, taxes and levies to be harmonized and the contributions to be proportional. The legislatures of Man and Channel Island were kept and the former dependencies would have representatives in the Commonwealth Parliament. The power to pass legislation and ordinances affecting the Islands ultimately rests with their own legislative assemblies (the unicameral States of the Channel Islands and the bicameral Tynwald of Man) and executives councils, with the assent of a special committee of the Council of State, that also names the Governors. However local laws prevails, unless specified otherwise. The judiciary of the former Crown dependencies is kept independent and the right of appeal to the High Judicial Committee.
The title of Lord of Mann and the Isles (Dominus Manniae et Insularum) is given the same status and treatment as the Chancellors of the Duchies of Lancaster and Cornwall.