“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
executed.”
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