This month in constitutional history

Happy Birthday, Instrument of Government

My current successor as Governor’s Councilor for Western Massachusetts is one of three plaintiffs suing Governor Patrick over his refusal to appoint to the bench a would-be judge who, the complaint alleges, had obtained the consent of the Governor’s Council. Have you ever wondered why, when it comes to appointing judges, the Governor of Massachusetts needs the “advice and consent” of the Governor’s Council and the President of the United States needs the “advice and consent” of the Senate? Here is the reason.

Although there is little in the way of hoopla, this year marks an important point in constitutional history, namely the 360th anniversary of the adoption of Britain’s first (and shortlived) written constitution, the Instrument of Government. It is from the Instrument of Government that John Adams, the author of the Massachusetts Constitution, and the other framers of the U.S. Constitution drew some inspiration and at least one key phrase, namely “advice and consent.”

John Lambert and John Adams

The Instrument of Government was a product of the English Civil War, the overthrow of the monarchy, and the rise of Oliver Cromwell. In 1653 John Lambert, a general in Cromwell’s New Model Army, drafted the Instrument, article IV of which states that the “Lord Protector [i.e. Cromwell] with the advice and consent of the major part of the council shall dispose and order the militia for [the peace and good of the three kingdoms] in the intervals of Parliament.”  The phrase appeared again in the 1686 Massachusetts royal charter, which authorized the Governor to make judicial appointments with “the advice and consent of the council.” John Adams kept that proviso when he drafted Constitution of the Commonwealth of Massachusetts in 1780.

Adams’s fellow framers of the Constitution of the United States must have warmed to the phrase because it made its way into article II, section 2 in connection with the President’s power to make treaties and to appoint “ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law.” These are appointments the President can made only with the “advice and consent of the Senate.”

As if that were not excitement enough, this month we celebrate the brief term of Anthony Ashley Cooper who, in August 1653 (while John Lambert was busy drafting the Instrument) served as Lord President of the Council of State, the executive body that intermittently ran England, Wales, Scotland, and Ireland during the Commonwealth. His term of office lasted for all of two weeks. Cooper was a royalist-turned-parliamentarian who returned to the royalist fold after Cromwell’s death, wisely as it turned out. After the restoration of the monarchy, Cooper continued to hold high office, including another stint as Lord President of the Council, and became first Earl of Shaftesbury. Poor John Lambert, in contrast, the drafter of the Instrument of Government, stayed true to the parliamentary cause and died in prison.

Anthony Ashley Cooper and John Lambert both made career choices with long-term consequences.  For members of the Massachusetts Governor’s Council who sue the Governor, the stakes are not so high.

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