Freedom of Men under Government is, to have a standing Rule to live by, common to every one of that Society, and made by the Legislative Power erected in it; a Liberty to follow my own Will in all things, where the Rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, Arbitrary Will of another Man: as Freedom of Nature is, to be under no other restraint but the Law of Nature.
(John Locke, Second Treatise of Civil Government, Ch. IV, sec. 21)
The fundamental law of the Commonwealth of England, Scotland and Ireland, 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. However under the Protectorship of Henry Cromwell the emphasis on the rule of law and a return to some sort of normalcy of the state institutions based upon the supremacy of Parliament became the norm. As part of this normalcy Scotland and Ireland were fully integrated with the Commonwealth.
The Constitutional Framework
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.
The Principles 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.
In time the Constitutional Framework of the Commonwealth came to refer collectively to the British written constitutions and its four sources: statute law (laws passed by the legislature), common law (laws established through court judgments), parliamentary conventions, and works of authority. This sum of Constitution and sources concerns both the relationship between the individual and the state, and the functioning of the legislature, the executive and judiciary.
It follows that the Commonwealth Parliament can change the constitution simply by passing new statutes through Acts of Parliament.
Claim of Rights Act
After the British Civil Wars (1636-1651) that marked the triumph of parliamentary forces over the king and the established the Commonwealth judges and law courts referred to previous legislation on the restatement of liberties and rights. The Habeas Corpus Act 1675, or Shaftesbury's Habeas Corpus, redefined and strengthen the ancient prerogative writ of habeas corpus, which required a court to examine the lawfulness of a prisoner's detention and thus prevent unlawful or arbitrary imprisonment.
Parliament also enacted several important landmarks such as the legislation of the 1670s that allowed former Anglicans (Episcopalians) to worship and follow the general provisions of the religious legislation. This process culminated with the Act and Declaration of Indulgence (1690) that established complete freedom of religion and suspended punishment to Catholics in Ireland, but keep some restrictions on their worship and priesthood until the 19th century.
A major British constitutional document that sets out specific liberties of the subject that the Protector and Parliament are prohibited from infringing was set out in the Claim of Rights Act of 1702 and its succeeding legislation. The 'Claim of Rights Act lays down limits on the powers of the protectorship and sets out the rights of Parliament, including the requirement for regular parliaments, free elections, and freedom of speech in Parliament. It sets out certain rights of individuals including the prohibition of cruel and unusual punishment and reestablished the liberty of subjects to have arms for their defence within the rule of law. It also provided a new oaths to taken by the Protectors on their installation:
- Solemnly promise and swear to govern the people of this Commonwealth of England, Scotland and Ireland, and the dominions thereunto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same".
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.
The county/shire franchise initially restricted to persons with land or personal property valued at £100 or more. The borough franchise remained with aldermen, councilors and Borough/Burghs. Later the county and shire franchise was lowered to £100 in 1667. Several parliamentary Acts and charter reforms modelled the borough franchise to the same standard (All freeman and in some boroughs also the masters of guilds).
There are no religious restriction on the right to vote, all barriers for Episcopalians (Anglicans) were abolished in the 1660s and Catholics were allowed to vote after 1690.
Franchise was restricted to males by custom rather than statute, so by it women could not neither vote nor stand for election. Women had to wait for the suffrage reform of the 19th century and its legal challenges that gave them the right to vote and stand for office if they had the same general property requirements has men.
Members of Parliament are not paid, which meant that only men of wealth could serve. Candidates had to be also electors, which means that in most places they had substantial property, usually in the form of land.
The Senate Act of 1662 defined its electors. The senators are elected by the Lord Mayors, mayors, Lord Provost and provosts of city/borough corporations and county corporations and the masters of livery companies and guilds. The electors of each Home Nation assemble separately every six years to vote for their respective senators.
- ↑ Also refer as the British Commonwealth or Britannia