“History of the Council of Censors”
“It is very usual for all public bodies, whether consisting of one or many natural ones, whose power is short of despotic, to wish for an increase of it; and to aim at that object as invariably as the needle without obstruction, points to the pole.”
In so recognizing, the 1785 Council of Censors justified their existence and the importance of the function bestowed on them by the framers of the Vermont Constitution in 1777. At the same time, the above observation foreshadows the sequence of events that led to their abolition in 1870.
Following the lead of the Pennsylvania Constitution, the framers inserted Section 44 calling for the creation of a Council of Censors, a body of 13 persons, elected by statewide election every 7th year, to serve a one year term. Their duties would be to determine, “whether the legislative and executive branches of government have performed their duty as guardians of the people; or assumed to themselves, or exercised, other or greater powers, than they are entitled to by the constitution. They are also to enquire whether the public taxes have been justly laid and collected, in all parts of this Commonwealth- in what manner the public monies have been disposed of, and whether the laws have been duly
In order to accomplish these functions, the Council was given certain powers: “to send for persons, papers and records; they shall have authority to pass public censures- to order impeachments, and to recommend to the legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the constitution.” Further, “the
said Council of Censors shall have the power to call a Convention, to meet within two years after their sitting, if there appears to them an absolute necessity of amending any article of this constitution which may be defective-explaining such as may be thought not clearly expressed, and of adding such as are necessary for the preservation of the rights and happiness of the people…”
These four important functions were attended to by the First Council of Censors who met in 1785. Among the amendments sent forth and approved by the Constitutional Convention of 1786 was to add a 5th duty to the Censors, “to enquire whether the constitution has been preserved inviolate, in every part.”
The Council of Censors met thirteen times during the course of the next 93 years, as prescribed by the 1777 Constitution. According to “Records of the Council of Censors” by Paul S. Gillies and D. Gregory Sanford, “the Council is responsible for the repeal of the laws requiring all taxpayers to support the gospel, the meeting house, and the first settled minister; for ending the practice of adopting special acts relieving individuals of their debts or granting them immunity from prosecution for a period of years; for eliminating the practice of punishing offenders of serious crimes with maiming or branding; and for taking the legislature out of the business of holding trials and hearing appeals.” Further, the Council of Censors proposed to amend the Constitution to allow for woman’s suffrage as early as 1869.
Many of these important developments may have come about without the work of the Council of Censors, but it is clear that their office provided a needed check on both the Executive and Legislative branches as evidenced by the fact that of the at least 63 acts of legislation that the Censors found issue with, “the legislature responded to thirty-six acts by amendment or repeal of the offensive provisions.”
The Constitutional Convention that met in 1870 voted to abolish the Council of Censors. This action was the result of a political drama that unfolded over the course of 35+ years and had much more to do with jockeying for power among various potential power holders rather than an indication that the functions that the Council served were unnecessary.
The Censors were elected by state-wide ballot (in the same way that the Executive Council was elected) and while the Constitution empowers the Council of Censors to call for a Constitutional Convention as they deem necessary to amend the Constitution, it does not specify in what manner delegates to that Convention should be elected. The precedent established by the Convention that drafted the 1777 Constitution in Windsor was that each town would be
represented with a vote in the proceedings. Tension therefore was inevitable between two bodies: the Censors, whose members would owe their election to the population centers of the state, and Convention delegates, most of whom would owe their election to a small town that they represent.
With a rapidly growing population, a conflict almost immediately emerged over representation. By the time of its joining the Union in 1791, there were 85,425 Vermonters and 116 chartered towns. By 1800 (at the time of the 3rd Council), the population was 154,396 and by 1813, it had grown to ~218,000.
The 2nd Council (1793) first proposed replacing the statewide-elected Executive Council with a 9 member Senate elected by counties based on population with each 10,000 citizens to be represented by one Senator. Citizens in towns comprised of less than 40 families, which included most of the towns north of Rutland and Windsor, recognized this as a threat to their representation, as the population centers within each county would dominate the election of each Senator. (CHECK THIS WITH FOLEY’S COPY OF RECORD- SEE CHAPTER II OF PROPOSED AMENDMENT) This
proposal was soundly defeated, with every member of the convention from that section of the State except two, voting against the amendments.
It re-emerged in the 5th Council, which was presided over by Federalist Ex-Governor, Isaac Tichenor. They too proposed a Senate elected based on population and similarly, the measure was soundly defeated by the Constitutional Convention by a vote of 20-188. In fact, none of the proposals of the 5th Council were adopted.
Rather than propose a Senate with members elected by county, the 6th Council proposed that members of the Executive Council be elected by counties based on population rather than by state-wide ballot. In addition, they proposed population-based criteria on the election of representatives, entitling one representative per 2000 persons. This would have reduced the number of representatives from about 214 down to about 120. They further would have reduced the power of the towns by giving the Executive Council and Governor the power to veto laws created by the House of Representatives. Again, all proposals were firmly rejected by the Convention delegates.
The 7th Council again took up the charge, proposing the change from a unicameral legislature to a bicameral legislature. As proposed, the House of Representatives would share their legislative duties with a Senate (again elected in the counties based on population), thus weakening the power of the Towns. In their address, they cited, “notorious instability, not to say fickleness of our legislation; to the continual fluctuation produced by laws, hastily, not to say inconsiderately passed, and of course necessarily altered or repealed.” They also referred to, “The unfortunate collision which has for some time existed between the Executive Council and the General Assembly, involving the respective powers of the two houses…between whom there is no arbiter to decide.” The Council’s act was an attempt to alter
this balance of authority decidedly. They considered,but fell short of proposing, an amendment to bring Constitutional amendment directly to the people, thus eliminating the Constitutional convention altogether.
The 8th Council (1835) too, proposed a second house of the legislature (they cared not whether it be called a Senate or a Council), to “create a power as a counterpoise to the popular branch, and thereby to give greater stability to the legislative department.” Now 43 years after the initial proposal, the amendment was passed by the Convention with a vote of 116-113. (Ironically, more legislation was passed in the year after the creation of the Senate than in the year prior!) One might wonder what circumstances created the willingness of the Convention delegates to finally accept this
measure. Among them might be a religious revival in VT which began in the late 1820’s. The Anti-Masons, opposing the Masons as a threat to Christian republicanism, surged into political leadership in VT, capturing the governorship. According to Gillies and Sanford, “That the Anti-Masons could capture a significant portion of the General Assembly seemed to weight the arguments of those who saw a unicameral body as too susceptible to political insurgencies.”
A second reason may be because of an additional proposal on the ballot, to bypass the Convention delegates completely. “In order to bring the subject directly before the people, we propose so to alter the said 43d article, as to provide, that the Council of Censors shall, hereafter, when they propose amendments or alterations of the constitution, submit the same directly to the freemen of the state, assembled in their respective towns, to be adopted or rejected by them as a majority shall decide.” This measure was defeated by a vote of 27-193.
The 9th Council proposed further measures to consolidate power in the population centers of the state by proposing such amendments as apportionment of Representatives based on population, increasing the terms of the Senate from 1 to 3 years, and again bypassing the Convention by bringing proposed amendments directly to the people. One has to wonder if the move toward stability in government was as much an effort to entrench the status quo, a hierarchy of power with a governing class wielding the political process against a governed class. “As the members of the House of
Representatives, come from every town in the state, and are elected for one session only, it cannot from the very nature of the case, be otherwise than that there should be, in many of them, a want of experience in legislation. In so numerous a body there will always be a liability to high excitements, and as a consequence, to inconsiderate legislation. And whenever an improper excitement, of a political cast, arises or exists amongst the people, it will be
communicated to, and carried out by, the legislators in their official transactions.” All measures were rejected by the Convention.
Interestingly, 1841 marks the first deliberations by the Council of Censors to abolish itself, placing the power to propose amendment in the legislature. “We have not judged it expedient to recommend the abolishing of that body. We have reason to apprehend that if the power to propose amendments of the constitution were exercised by one or both branches of the Legislature, there could be no saving of expense, considering the time that would thus be occupied by those bodies;-- that party politics would too often mix with the discussion, and influence the decisions in relation to the proposals of amendment.”
The 10th Council followed suit by again proposing apportionment of House by population and popular referendum on amendments which were again rejected by the Convention delegates. They again deliberated on giving the authority to propose amendments to the Senate which was rejected 11-2. Other proposals from the Censors were approved by the Convention including popular election (rather than appointment by the General Assembly) of county and probate district
officers and Justices of the Peace.
According to Gillies and Sanford, “the lack of strong party tickets, a host of special interest slates, and low voter interest allowed the Know-Nothing Party to capture the [11th] Council. The Know-Nothings, perhaps because they lacked a broad town-based organization, were willing to push the proportional representation further than any preceding Council. Several of the Know-Nothing Censors also hailed from commercial centers which had traditionally promoted
proportional representation. For whatever reason, the 1855 Council not only called for proportional representation, but it took steps to circumvent the fate of previous proposals by re-structuring the constitutional convention. In doing so, it
exacerbated resentments against the Council and started the trail of events which would lead to its demise.”
The Council proposed amending the Constitution in a method where, every ten years, one person in each county, who shall be chosen in the same manner the Senate is chosen, to be called the Constitutional Council meet and have powers for six months to determine the necessity of proposing amendment. They would have power to call a convention and would be allowed to designate when, where and in what manner convention delegates would be chosen.
They further put forth an ordinance calling for a convention of ninety delegates apportioned by county by population. Gillies and Sanford explain, “This proposal received a sour reaction from the House of Representatives in 1856. On October 24, the House resolved, ‘that in the judgment of this House, the framers of the Constitution did not intend to give, and did not in fact give, to the Council of Censors the power to prescribe the districts or constituencies entitled to send delegates to the convention to be called by said Council, or to limit the number of such delegates, and thereby deprive the towns in the State from being represented by their delegates.’ It recommended that the Convention, once
met, reject the amendments proposed by the Council to ‘save the State from any difficulties, which might arise from their adoption.’”
The delegates met as proscribed and assigned a sub-committee to propose action on the amendments. Rather than propose any action, they spoke to the Ordinance of the Censors that established this convention. They made the following 4 resolutions, all of which passed by a wide margin:
1) “In view of these reasons, this convention is satisfied that by creating a new constituency and transferring the right of delegation from the respective towns to the counties, the late Council of Censors acted unwisely, and exceeded the powers devolved upon them by the Constitution, as heretofore practically interpreted.”
2) “Recommend to the coming legislature of this State to make some provision so that whenever any future Council of Censors shall decide upon calling a Convention and fix the time of the meeting thereof… as near as may be in the same manner now prescribed for the election of the Representatives of such town in the General Assembly of the state.”
3) “That our constituents, in electing Delegates to this Convention in the manner prescribed by the Ordinance of the late Council of Censors, did not so do for the purpose of acknowledging the validity of, or confirming the same Ordinance, but rather, by expressing themselves through organs chosen in the very manner selected by the Council, to express more emphatically the reprobation of the action of the Council in the premises.”
4) “As the amendments proposed by the Council will necessarily fall and be virtually rejected by the people unless duly confirmed- this Convention sees no occasion to take any further action in relation thereto.”
The 12th Council, meeting in the midst of the Civil War met for an abbreviated session and adjourned without censuring or proposing anything.
The 13th and final Council has been referred to as “The Suicide Council”. At the time of this election, Republicans, with unmatched town-level organization dominated Vermont, viewed the Censors as a threat. They backed a mixed party slate of Censors which included 10 Republicans and 3 Democrats with the intention that the body would propose its abolition. As Gillies and Sanford explain, “As the deliberations wore on, however it became clear that the Censors
were not unanimous on the “suicide” proposal. After first rejecting the proposal, the Censors deadlocked over the other proposals and for a while it appeared that the required two-thirds vote for calling a convention would not be obtained. In a last minute compromise the Council agreed to submit all the proposals, leaving it to the constitutional convention to decide the fate of the measures.” The result was 123-85 in favor of abolishing the Council of Censors.
The net result is that, for 139 years, many of the responsibilities that the Council was given and that they were intended to perform has gone undone.
At the Vermont Commons sponsored Retreat: Dreaming Vermont’ Destiny in May of 2009, the breakout group dealing with ‘governance’ determined that many of the conditions which prompted the creation of the Council still existed and that it was imperative to reinstitute the Council to review ‘the status of constitutional democracy’ in our State.
It was determined that had the Council of Censors continued to meet each septenary, the 33rd Council would have been elected by state-wide ballot in 2009. In the spirit of the Council’s legacy a group of Retreat participants volunteered to form a self-appointed 14th Provisional Council of Censors and accepted the responsibility of continuing the task of ‘vetting’ the constitutionality of legislation passed by both Vermont and Federal legislatures.
The members of the 14th Provisional Council of Censors come from across the political spectrum but with a shared recognition that our current reality falls far short of the idyllic promises laid out in the Constitution. We find that the actions of those in power both at the State level and at the Federal level may run contrary to, “natural, inherent and
unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety” as provided for in Article 1. Recognizing, as is stated in Article 7, “that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in
such manner as shall be, by that community, judged most conducive to the public weal,” we endeavored to propose necessary changes.
We are conscious of the fact that rather than an elected body, accountable to the electorate, we are a self-selected body carrying no stated mandate from the citizens of Vermont. As such we operate without many of the rights conferred to the Censors. We take solace in that we have assumed to ourselves no law-making authority because the Censors were, according to Sanford and Gillies, “principally an advisory body whose authority came from its position
and its persuasiveness, and the publicity it gave to its censures.”
The 14th Provisional Council of Censors will report our findings via an Address to the law-making authority, the People of Vermont, including those citizens who currently represent them in government. We humbly assume our “office” in the hopes that our efforts will serve our fellow citizens and further the cause of democracy.
In the words of the 1869 Council, “the integrity and intelligence of the people are a sufficient guaranty that none of these proposals of amendment will find a place in the Constitution, except such as are necessary for the preservation of the rights and happiness of the people.”
Further, in the words of the 1st Council of Censors, “A principle of duty has led us to speak our sentiments with a freedom, which we are not insensible, will be disagreeable to many; but as we have been actuated solely by a desire of contributing our mite to the honor and felicity of the community and are conscious of no sinister or personal motive
in our proceedings, we cheerfully submit our opinions to your candid consideration; and if we are so unhappy as materially to differ in sentiment from that respectable body, the freemen of the State of Vermont, we must console ourselves with the pleasure of having meant well, and that it is the lot of humanity to err.”
We believe that the “err” inherent in any body of 13 humans, is remedied by the fact that there need not be only one Council of Censors but that a multitude of bodies dedicated to the “preservation of the rights and happiness of the people” can not fail to result in a more-informed electorate, more responsive public servants, a better functioning democracy and a happier and more satisfied citizenry.
The 14th Council would certainly welcome additional fellow Freemen/women to our deliberations. Interested citizens should Contact Us