Papers from the Historical Seminary 
of Brown University 

Edited by J. FRANKLIN JAMESON, Ph. D., LL. D., Professor of History 



X 



THE COUNCIL OF CENSORS 



LEWIS HAMILTON HEADER, A. M. 



REPRINTED FROM THE 
PENNSYLVANIA MAGAZINE OF HISTORY AND BIOGRAPHY 

AND FROM THE 
PROCEEDINGS OF THE VERMONT HISTORICAL SOCIETY 



I UHIV 



PROVIDENCE 
1899 



Papers from the Historical Seminary 
of Brown University 



Edited by J. FRANKLIN JAMESON, Ph. D., LL. D., Professor of History 

!\ 



X 



THE COUNCIL OF CENSORS 



BY 

LEWIS HAMILTON MEADER, A. M. 



REPRINTED FROM THE 
PENNSYLVANIA MAGAZINE OF HISTORY AND BIOGRAPHY 

AND FROM THE 
PROCEEDINGS OF THE VERMONT HISTORICAL SOCIETY 



PROVIDENCE 
1899 





-ft* 



Reprinted from THE PENNSYLVANIA MAGAZINE OF HISTORY AND 
BIOGRAPHY, October, 1898. 



THE COUNCIL OF CENSORS. 



I. INTRODUCTORY. 

In 1776 a Constitutional Convention met in Philadelphia 
and framed a constitution for Pennsylvania which contained 
the following provision for its change or amendment : l 

" Sect. 47. In order that the freedom of the commonwealth may be 
preserved inviolate forever, there shall be chosen by ballot by the free 
men in each city and county respectively, on the second Tuesday in 
October, in the year one thousand seven hundred and eighty-three, and 
on the second Tuesday in October in every seventh year thereafter, two 
persons in each city and county of this state, to be called THE COUNCIL 
OF CENSORS ; who shall meet together on the second Monday of No 
vember next ensuing their election ; the majority of whom shall be a 
quorum in every case, except as to calling a convention, in which two 
thirds of the whole number elected shall agree : And whose duty it shall 
be to enquire whether the constitution has been preserved inviolate in 
every part ; and whether the legislative and executive branches of gov 
ernment have performed their duty as guardians of the people, or as 
sumed to themselves, or exercised other or greater powers than they are 
intitled to by the constitution : They are also to enquire whether the 
public taxes have been justly laid and collected in all parts of this com 
monwealth, in what manner the public monies have been disposed of, 
and whether the laws have been duly executed. For these purposes they 
shall have power 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 of such laws as appear to 
them to have been enacted contrary to the principles of the constitu 
tion. These powers they shall continue to have, for and during the 
space of one year from the day of their election and no longer : The 
said council of censors shall also have power to call a convention, 

1 Poore, " Charters and Constitutions," Vol. II. p. 1548. 

1 



2 The Council of Censors. 

to meet within two years after their sitting, if there appear to them an 
absolute necessity of amending any article of the constitution which 
may be defective, explaining such as may be thought not clearly ex 
pressed, and of adding such as are necessary for the preservation of the 
rights and happiness of the people : But the articles to be amended, and 
the amendments proposed, and such articles as are proposed to be added 
or abolished, shall be promulgated at least six months before the day 
appointed for the election of such convention, for the previous consider 
ation of the people, that they may have an opportunity of instructing 
their delegates on the subject." x 

This constitution vested the supreme executive power in 
a president and council, the supreme legislative power in a 
House of Representatives of the freemen of the Common 
wealth or State of Pennsylvania, but it recognized no sepa 
rate body invested with supreme judicial power. 

This so-called Council of Censors constituted the recog 
nized legal check on the executive and legislative branches 
of the government, and in it alone was vested the means 
whereby the constitution could be amended or altered. 

This council was to be elected once in seven years by the 
people, each county and city to be represented by two coun 
cillors ; it was to exist and have power one year from the 
date of its election, and no longer. It was a feature of the 
constitution of Pennsylvania from 1776 to 1790, and of that 
of Vermont from 1777 to 1869. 

It is the purpose of this inquiry to trace the growth, in 
Pennsylvania and elsewhere, of this device for preserving 
and revising constitutional provisions, and to note the causes 
which have led to its being superseded and finally driven 
from the field. 

II. CENSORS IN EUROPE. 

The name, Council of Censors, leads one to look for a 
model in the government of Rome, and to examine this to 
detect points of similarity and contrast; for one might 
reasonably conjecture that when a people in a given in- 

1 " The Proceedings relative to calling the Conventions of 1776 and 
1790, the Minutes of the Convention . . . and of the Council of Cen 
sors," Harrisburg, 1825. 



The Council of Censors. 3 

stance were about to frame a constitution over which the 
people should have control, the most prominent examples 
of history would be studied to the end that their excel 
lencies might be imitated and their errors and weaknesses 
avoided. This hypothesis seems the more reasonable when 
one considers that the models of Greece and Eome, together 
with those of Rousseau and other theorists, were the only 
prominent ones, and that these, especially the former, were 
within reach of scholarly men and men of affairs at the 
time when the Pennsylvania instrument was framed ; and 
other reasons will manifest themselves as we proceed with 
this study. 

Censors were appointed at Rome after 443 B.C. 1 They 
were usually (after the Second Punic War) those who had 
been consuls. They held office for five years, but their 
active work was done during the first eighteen months of 
the period for which they were elected. They exercised 
supervision over certain Roman customs. They could expel 
a senator, deprive a knight of his horse, regulate the public 
taxes, inspect the public buildings, and divide the people 
into their proper centuries and classes. The position of a 
censor was one of the most honorable and powerful in the 
Roman republic, and it existed for four centuries, or until, 
under the empire, the control of that office was assumed 
by the state. 

This institution of censors bore a certain resemblance to 
an institution connected with the Spartan state, known as 
the ephors. This office was important from early times, 
and it furnished a check on the active government, repre 
senting as it did the community of Sparta. The ephors 
were five in number, and they held office for one year. It 
was their duty to superintend public morals and education. 
They exercised a strong influence on legislation and even 
checked the action of the executive. 2 

1 Kennett s " Koman Antiquities/ London, 1769, fourteenth edition, 
pp. 112-114. Kennett s book is quoted as one of those most likely to 
have been examined by " the fathers." 

2 Bojeson s " Greek and Roman Antiquities," pp. 58, 59. 



4 The Council of Censors. 

Plato evidently has a similar institution in view when he 
asserts, in his "Laws," 1 that guardians should be sought 
who are incorruptible, " to establish more firmly institutions 
in the state which are good already, and amend what is defi 
cient." He would have the nocturnal council, composed of 
men trained by travel and experience, meet daily to consider 
matters of public importance ; and he would regard this as 
" a guard set according to law for the salvation of the state." 

Montesquieu, in his " Spirit of the Laws," draws on the 
Roman plan of public censors and the Greek ephorate as 
very useful methods for keeping public officials and laws 
subservient to the people. 2 He recites that the Spartan, con 
scious of this check, feared the tribunal of public opinion 
far more than did the Athenian official, who well knew the 
weakness of his state in passing censure on his public acts. 

About 1762 Rousseau s " Coutrat Social" appeared, which 
devoted a chapter to his proposed method by which the 
sovereign people could hold their magistrates in check. 
He felt that modern nations had lost that power which was 
once so salutary, " chez les Romains et mieux chez les 
Lacedemoniens." 3 His theory was, ". . . that the censor 
may be useful in preserving the customs, but never in re 
establishing them. Establish censors while the laws are vig 
orous ; as soon as they become weakened everything is past 
hope ; nothing legitimate has force when the laws have none. 
The censor maintains the standard of morals by preventing 
the corruption of opinions, by preserving their rectitude 
through wise applications, sometimes even by fixing them 
when they are uncertain." 

It is evident that Rousseau, having in mind the censors 
of Rome and the Greek ephors, planned an institution re 
sembling that which we are studying. 

The American colonists of the third quarter of the eigh 
teenth century were men who had had occasion to study the 
nature and limitations of popular government. There were 

1 Plato s "Dialogues" (Jowett s trans.), Vol. V. Sects. 951, 961, 968. 

2 Montesquieu, " Works" (trans., 1777), Vol. I., Chap. VII., pp. 61-63. 

3 Rousseau, " GEuvres Completes," Paris, 1793, T. II. pp. 210-213. 



The Council of Censors. 5 

educated men among them, men who had been liberally in 
structed in American colleges, whose courses of study were 
principally in the classics. No classical student could fail 
to know something of the history of Greece and Rome; 
while to men like the Adamses, Franklin, Dickinson, and 
many whose names are less widely known, Greek and Ro 
man history would furnish foundation studies in popular 
government. There were ample sources in English for 
studies of classic models of government. In 1769 Ken- 
nett s "Roman Antiquities" had passed to its fourteenth 
edition, and was probably accessible to the students in every 
American college, while similar studies in the antiquities of 
Greece, one may reasonably infer, would have been equally 
accessible. Controversial letters in the newspapers abounded 
with signatures drawn from Greek and Roman classics. 
" Spartanus," " Cato," and " Cassandra" honored the names 
of pamphleteers not only in Philadelphian but in other 
American papers ; and many a statesman of antiquity was 
represented as the responsible person for dissertations on 
the relation of the people to legitimate government. 

It would be presuming contrary to reasonable inference 
to assume that these men were not acquainted with the 
views of Montesquieu and Rousseau on popular govern 
ment. The works of the former had been before the stu 
dents of statecraft in Europe for a quarter of a century, 
while Rousseau s " Contrat Social" began its radical mission 
ten years later. 

Rousseau was the apostle of extreme democracy. The 
leaven of his influence was manifest in Europe during the 
last quarter of the eighteenth century ; and so it came about 
that the Council of Censors has a European history, which 
we proceed first to recount. 

At the height of the French Revolution Robespierre, on 
May 10, 1793, delivered a speech in the National Conven 
tion, wherein he says, in the course of a great debate 1 on the 
proposed Constitution of France, that the executive power 

1 Le Moniteur, Lundi, 13 Mai, 1793, p. 584, second column. 



6 The Council of Censors. 

is limited by the Corps Legislatif, and that every public func 
tionary should be amenable for his conduct to a tribunal of 
the people; that a representative government fails of its 
legitimate ends that does not obey and cannot be compelled 
to obey the mandate of the popular will. 

We quote these words r " II est naturel que le corps charge 
de faire les lois, surveille ceux qui sont commis pour les 
faire executer. Les membres de I agence executive seront 
done tenus de rendre compte de leur gestion au corps legis- 
latif. En cas de prevarication, il ne pourra pas les punir, 
parce qu il ne faut pas lui laisser ce moyen de s emparer de 
la puissance executive ; mais il les accusera devant un tribu 
nal populaire dont 1 unique fonction sera de connaitre des 
prevarications des fonctionnaires publics." 1 

May 13, 1793, the National Convention adopted a pro 
gramme by which its deliberations on the new constitution 
should be governed. The twelfth item in that programme 
read as follows : 

" Chapitre XII. Comment le peuple exerce lui-meme 
sa souverainete sur les fonctionnaires publics et sur les 
actes." 2 

On the 10th of June, 1793, Herault de Sechelles, repre 
senting the Committee of Public Safety, delivered a speech 
in defence of the project of a constitution which he had 
brought forward, and in which he recognized the Council 
of Censors as an essential feature to make the government 
of France not alone republican, but democratic. Chapter 
XV. of the proposed French Constitution of 1793 read as 
follows : 

" Du grand jure national, Article Premier : 

I. " Le grand jure est institue pour garantir les citoyens 
de 1 oppression du corps legislatif et du conseil. Tout 
citoyen opprime par un acte particulaire, a droit d y re- 
courir. 

II. " La liste des jures est composee d un citoyen, elu 
dans chaque departement par les assemblies primaires. Le 

1 Le Moniteur, Lundi, 13 Mai, 1793, p. 584, second column. 

2 Ibid., Lundi, 20 Mai, 1793, p. 608, first column. 



The Council of Censors. 7 

grand jure est renouvele tons les ans avec le corps legis- 
latif. 

III. "II n applique point les peines. II renvoie devant 
les tribunaux. 

IY. " Les noms des jures sont deposes dans une urne au 
sein du corps legislatif." l 

In defence of this so-called " national grand jury," or 
Council of Censors, Herault used these words : " Nous en 
avons cherche le remede dans la formation d un grand jure, 
destine & venger le citoyen opprime dans sa personne, des 
vexations (s il pouvait en survenir) du corps legislatif et du 
conseil : tribunal imposant et consolateur, cree par le peuple, 
a la meme heure, et dans les memes formes qu il cree ses 
representans ; auguste asyle de la liberte, ou nulle vexation 
ne serait pardonnee, et ou le mandataire coupable n echappe- 
rait pas plus a la justice qu a 1 opinion." 2 

Herault de Sechelles s "Rapport" 3 is full of enthusiasm 
for the Council of Censors. He advocates its adoption and 
defends its good features with more emphasis than one finds 
in Rousseau s chapter on " The Censors" in his " Contrat 
Social." 

In the French Constitution as adopted in 1795 this provi 
sion was omitted. The excesses of the French democracy 
following the Convention of 1793 caused those in authority 
to be unwilling to place so much power in the hands of the 
people as the plan of Herault de Seychelles contemplated. 
The next attempt in Europe to make use of this instrument 
of popular government occurred when Maria Pagano drew 
up a constitution for the Neapolitan republic in 1799. 4 
This was modelled on the French Constitution of 1793. 
For the directory it substituted a system of archons, who 
could hold office only two years. In matters of appeal, one 

1 Le Moniteur, 19 Juin, 1793, p. 732, second and third columns. 

2 Ibid., Jeudi, 13 Juin, 1793, p. 707, second column. 

3 Kindly lent by the library of Cornell University. 

*" Biographic Universelle," Paris, 1844, T. LXXVI., LXXVIL 
Among his works is mentioned " VII. Projet de constitution pour a 
re"publique Napolitaine, 1799." 



8 The Council of Censors. 

section of one tribunal might appeal to another section ; or 
one section of one department could appeal to another de 
partment. This was especially accomplished by an ephorate 
and by a tribunal of censure, which was a distinguishing 
feature of the Neapolitan constitution. The ephorate was 
a sort of conservative senate, and its duty was to keep the 
desires of the different branches within reasonable limits 
and to place a check on usurpations. The tribunal of cen 
sure was an imitation of the domestic censure which, ac 
cording to Montesquieu, assisted in a remarkable manner 
in the preservation of the customs of the ancient republic 
of Rome. 

This constitution, like that of 1793 in France, was never 
tested by use. French reverses in the north of Italy had 
their consequences in Naples. Pagano gave up the pen for 
the sword, and with other members of his provisional gov 
ernment fell into the hands of the enemy. He perished on 
the scaffold October 6, 1800. 

At the close of the eighteenth century, in Europe, the 
method of regulating governments by a tribunal created and 
controlled by the people had no abiding place on the Conti 
nent. Montesquieu and Rousseau had drawn on the Greek 
ephors and the Roman censors for a popular plan for regu 
lating government officials ; but it was only a theory, and 
the excesses of the French Revolution prevented its having 
a fair trial in practice. 

III. PRELIMINARIES IN AMERICA. 

In America the political doctrines of Rousseau took root 
and bore fruit ; but they were modified by the more conser 
vative views of Locke. Traces of Rousseau s views may 
perhaps be seen in the opening paragraphs of Paine s " Com 
mon Sense ;" and Paine s connection with the Pennsylvania 
radicals who made the constitution of 1776 is well known. 
There had long been a feeling of unrest in the colonies, a 
feeling that the people should control their political affairs ; 
that the governed should of right command their servants 
It was in the air. There were conservatives 



The Council of Censors. 9 

who sought only to modify the policy of the crown in certain 
details. They had no desire to break up the foundations 
of the government and build on a new foundation. The 
radical party would break with the mother country; it 
would go back to first principles; it would stand by the 
rights of man. Of the former party John Dickinson was 
a type; of the latter were Paine, Franklin, and Jefferson. 
In 1776 the radical party had succeeded in securing the 
independence of the colonies. 

Before passing to consider at length the relation of the 
Council of Censors to the constitutions of Pennsylvania and 
Vermont, a slight digression may throw a side-light on the 
views which prevailed with reference to popular government 
in the country at large. 

In 1776 a pamphlet was published with the title, " The 
People the Best Governors. " * It took the ground that 
sovereignty lies with the people ; that the Legislature has 
no right to appoint agents to restrain governmental action, 
because this appointing power lies with the people in virtue 
of sovereignty, and sovereignty cannot be delegated. It 
suggested a senate or council, to be elected by the people, 
to check legislation, resembling what is now known as a 
State Senate, but with a partial resemblance also to a Council 
of Censors. The foregoing statement of the need of popu 
lar checks on representative government is followed by a 
statement of the specific method to be employed : 

" 4thly, That the people chuse annually by ballot in their town meet 
ings, a council, consisting of twelve persons, through the government at 
large, whose business shall be to help in preparing matters for the con 
sideration of the assembly, to assist them with their advice. And, lastly, 
it shall be their duty to inquire into every essential defect in the regula 
tions of government, and to give the people seasonable notice in a public 
way, with their opinion respecting the matter." 

The view of the pamphleteer seems to have been that the 
people are the best, the real governors, and that a limited 
number of men, duly elected, may constitute a regulative 

1 Text in Chase s " History of Dartmouth College," Appendix D. 

* 



10 The Council of Censors. 

board. The Rousseau idea is evidently involved in the sug 
gestion, even though the Latin name of " Censors" is absent, 
and a permanent upper House is contemplated. 

Only two American States have employed the Council of 
Censors in their fundamental law, Pennsylvania from 1776 
to 1790, and Vermont from 1777 to 1869 almost a century. 
To these two examples most of the further consideration of 
this subject will be devoted. 

In the constitution which Rev. Samuel Houston drew up 
for the State of Frankland in 1785 there was a provision 
for a Council of Safety to be elected once in five years. 
Its general features were quite like those of the Council of 
Censors. This constitution failed of ratification, and when 
a constitution was made later for Tennessee this radical 
feature did not appear. 1 

IV. PENNSYLVANIA: THE CONSTITUTION OF 1776. 

On May 15, 1776, the Continental Congress voted that 
the colonies be requested " to adopt such government as 
shall in the opinion of the representatives of the people 
best conduce to the happiness and safety of their constitu 
ents in particular and Americans in general." 2 Acting on 
this request, the citizens of Pennsylvania elected delegates 
to a Constitutional Convention which met July 5, 1776, 
and continued its sittings to September 28 of the same 
year. 

The framing of a new constitution for the province of 
Pennsylvania involved many interests. It lined up the two 
parties, or political interests, of Pennsylvania on the same 
principles that had divided them ten years earlier. Those 
who opposed the continuance of the proprietary govern 
ment in 1764 favored the plan for a new constitution, 
favored the extension of the suffrage, favored severing the 

1 Eamsay s "History of Tennessee," pp. 282 et passim,; American 
Historical Magazine, 1896. The New York Tammany Society, as is 
shown by its manuscript records, had in its early days officials called 
censors. 

2 "Journals of Congress," Vol. II. p. 166. 



f , 



g 
The Council of Censors. 11 

ties which had existed between the colony and Great Britain. 
In this party were the radicals of Philadelphia and of the 
more thickly populated sections of the adjacent counties, 
and with them consorted the Scotch-Irish and Presbyterians, 
and the inhabitants of the remoter sections, who felt that 
they had grievances against the proprietary government. 
The Quaker and German elements were conservative. They 
had stood for the retention of the proprietary government ; 
they stood for good order, for keeping political power in the 
hands of those who were known to be safe. They dis 
trusted the people whom a fifty-pound requirement in 
property disfranchised. Opposed to the unjust efforts for 
taxation on the part of the crown in 1764, they now op 
posed independence arid rendered only a lukewarm assist 
ance to those who were struggling against Great Britain. 

On June 18, 1776, a Provincial Conference, with Thomas 
McKean as president, assembled at Carpenters Hall in 
Philadelphia and continued its sittings until June 25, when 
it adjourned. This conference consisted of ninety-seven 
delegates representing the people of the various counties 
of the province. 1 They decided that in considering all 
questions each county should have one vote ; that they ap 
proved the resolution of Congress calling for a new consti 
tution for Pennsylvania; that "every associator" in the 
province should be entitled to vote for members of the 
convention, provided he were twenty-one years of age and 
had resided one year in the province ; provided also that he 
had paid taxes, and should take oath that he did not owe 
allegiance to Great Britain, They recommended that the 
proposed convention should consist of eight delegates from 
each county, Philadelphia City and County being counted 
separately, that each member of the convention should 
be a qualified voter, and that he should be required to 
renounce allegiance to the crown and assert belief in 
the Holy Trinity and the inspiration of the Scriptures. 
After issuing an appeal to the people of the province, and 

1 " Proceedings and Minutes," pp. 35-45. 



12 The Council of Censors. 

setting July 8 as the day for the new election, the confer 
ence adjourned. 

Such was the authority for calling the convention. It 
represented the will of the people expressed in a way for 
which the proprietary government of Pennsylvania had not 
provided, but one as legitimate as that by which the Decla 
ration of Independence had been adopted. 

Constitution-making was new work for the American 
colonists, and they felt their way slowly. But the air was 
full of suggestions. It was proposed that the Assembly 
choose from its number twenty members to be a legislative 
council, this being preferable to a council chosen by the 
people ; that no alteration should be made in the " Charter 
" without the consent of two-thirds of the people testified 
by voting by ballot." It was further suggested 1 that the 
members form a plan of government, submit it to the 
people by printing it in the newspapers, and then adjourn; 
that the people should choose a new convention which 
should have power to make alterations in the new consti 
tution or confirm it. Another writer appeals to the people 
on the necessity of framing a new constitution, cites the 
governments of Greece and Rome as examples, says that 
this province is worse off than the other colonies in that 
the " House of Assembly is a part of that power from which 
we are trying to break away," and that it is disqualified for 
business. Daniel Roberdeau added the protests, for similar 
reasons, of the " inhabitants of the city and liberties of 
Philadelphia." 2 In Philadelphia and adjacent counties, 
however, a remonstrance against a new government was 
framed, and signed by six thousand names. 3 " A Freeman" 
in a later paper 4 asserts that the remonstrance does not 
represent the people of the province, and that the protesters 
have no desire to disturb the power of the Assembly, but 



1 Pennsylvania Evening Post, No. 232, July 16, 1776. 

2 Ibid., No. 208, May 21, 1776. 

3 Ibid., No. 216, June 8, 1776. 

4 Ibid., No. 217, June 11, 1776. 



The Council of Censors. 13 

to frame a constitution, a work which the Assembly could 
not do. 

Suggestions were made not only as to framing a plan of 
government, but as to keeping it in order. There seemed 
to be a desire to adopt a plan whereby the people should 
not only make a constitution, but to them should be con 
fided 1 the power to alter and amend the same. John 
Adams s suggestion 2 was that the Legislature devise the 
methods of electing representatives " as in Connecticut/ 7 or 
that it might enlarge the period for which they should be 
chosen " to seven years, or three years, or for life, or may 
make any other alterations which the society shall find pro 
ductive of its ease, its safety, its freedom, or in one word 
its happiness." 

Another writer under the nom de guerre of Demophilus 
may perhaps be fairly regarded as having made the direct 
preliminary suggestion for the Council of Censors. He 
wrote as follows : 3 

" Probably a decennial meeting of delegates to examine 
the state of the constitution and conduct of the government 
would not be an imprudent provision for keeping the con 
stitution in health and vigor, by having an opportunity to 
see that it did not depart from its first principles. This 
would be effectually holding the supreme power in its only 
safe repository, the hands of the people" 

The election of delegates took place July 8. The con 
servatives took little or no part in this election, and the 
result was that the party in favor of a more democratic gov 
ernment were in a large majority. 4 

On July 16 the delegates met, organized, and made the 

1 Pennsylvania Evening Post, No. 217, June 11, 1776. 

2 " Thoughts on Government, Applicable to the Present State of the 
American Colonies, Philadelphia, 1776: Printed by John Dunlap." 
John Adams s " Works," Vol. IV. p. 197. 

3 "The Genuine Principles of the Ancient Saxon and English Con 
stitution, Philadelphia: Printed and sold by Robert Bell, in Third 
Street, MDCCLXXVL," p. 38. 

4 Marshall s " Diary," p. 83. Attention is called to this passage by 
Mr. P. L. Ford in the "Political Science Quarterly," Vol. X., 1895. 



14 The Council of Censors. 

required profession of political faith, 1 renouncing all alle 
giance to the British crown, declaring faith in the Holy 
Trinity, and pledging themselves " to establish and support 
a government in this province on the authority of the 
people only." 2 Benjamin Franklin was elected president, 
and after electing the other necessary officers and clerks the 
convention was ready for business. 

On July 18 a committee was appointed to bring in " an 
essay" for a frame of government ; an addition to it was 
made July 25, when it stood as follows: Owen Biddle, 
Colonel Bull, Eeverend William Van Home, John Jacobs, 
Colonel Ross, Colonel James Smith, Jonathan Hoge, Jacob 
Morgan, Colonel Stroud, Colonel Thomas Smith, Robert 
Martin, Colonel Timothy Matlack, James Cannon, Colonel 
Potter, David Rittenhouse, Robert Whitehill, and Bertram 
Galbreath. 3 On July 25 the convention endorsed the Decla 
ration of Independence and pledged themselves to " support 
and maintain the freedom and independence of this and the 
other United States of America at the utmost risk of " their 
lives and fortunes. 4 

On September 28 the frame of government was con 
firmed and ratified by the convention in a declaration in 
which were these words : 5 

"We the representatives of the freemen of Pennsylvania, in general 
convention met for the express purpose of framing such a government . . . 
do, by virtue of the authority vested in us by our constituents, ordain, 
declare and establish the following declaration of rights and frame of 
government, to be the constitution of this commonwealth and to remain 
in force therein forever unaltered, except in such articles as shall here 
after, on experience, be found to require improvements, and which shall 
by the same authority of the people, fairly delegated, as this frame of 
government directs, be amended or improved for the more effectual ob 
taining and securing the great end and design of all government herein 
before mentioned." 

The constitution contained several curious provisions. 
It provided for a unicameral Legislature, and vested the 

1 " Proceedings and Minutes," p. 46. 

2 Ibid., p. 39. 3 Ibid., pp. 48, 49. * Ibid., p. 49. 5 Ibid., p. 55. 



The Council of Censors. 15 

executive power in a president and council. It provided 
for amending the constitution and keeping the government 
under the control of the people by a Council of Censors. 
To this council was committed the initiative in setting on 
foot reforms in the fundamental law and certain inquisi 
torial powers as to the manner in which public officials did 
their duties. The council was also to see that taxes and 
general expenditures were justly levied and discharged. 
The provisions respecting it were those which have been 
quoted on the first page of this article (Section 47 of the 
constitution). 

Who drew up this frame of government, and to whom 
are we indebted for Section 47 of the constitution, the 
clause treating of the Council of Censors? The minutes 
and proceedings of the convention throw little light on this 
question, since they do not contain the debates nor a full 
record of the proceedings. 

The committee for bringing in a frame of government 
contained some eminent men, men of high repute; but it 
is probable that these had less to do with the actual work of 
making the frame of government than some who were less 
widely and favorably known, belonging to the extremely 
radical wing of the popular party. 

It is reasonably certain that David Bittenhouse had 
little or no part in it, 1 and the same authority attributes 
but little of the work to Benjamin Franklin, although 
Timothy Matlack assured Kichard Bache that his "vener 
able father-in-law was one" to whom the " Convention paid 
the highest respect" in providing for a Legislature of a 
single branch. 2 

The Council of Censors is attributed to James Cannon 
and George Bryan ; 3 George Bryan was not a member of 
the convention, however ; hence the fact that he is charged 
with its authorship in connection with James Cannon shows 

1 Barton s " Life of David Rittenhouse," p. 336, note. 

2 Pennsylvania Gazette, March 31, 1779. " A Candid Examination 
of the Report of the Minority," pp. 51, 52. 

8 Graydon s " Memoirs," pp. 285-288. 



16 The Council of Censors. 

the influences that worked together for providing this radi 
cal feature of the Pennsylvania constitution. As each of 
these men is charged with being the author 1 of the con 
stitution, one may reasonably infer that it grew out of the 
combined views of the radical wing of the people s party, 
in which were Timothy Matlack, James Cannon, George 
Bryan, Dr. Thomas Young, and Thomas Paine. 2 Two, 
Matlack and Cannon, were members of the convention and 
of the committee for drawing up a frame of government; 
and the fact that George Bryan, an outsider, is associ 
ated with it leads one to infer that the views of the entire 
group found expression, in a measure, in the frame of gov 
ernment. 

James Cannon was a Scotchman, came to Philadelphia 
in 1765, was a tutor, and later a professor of mathematics, 
in the College of Philadelphia, was active in the " Associ 
ates of Philadelphia," author of the " Cassandra" letters, 
and secretary of the " American Manufactory." He died 
in 1782. 3 One contemporary writer calls him " a fanatical 
school-master," and another distinguishes him thus : " Of 
his colleague, Mr. Cannon, it may not be uncharitable to 
presume, that having little knowledge of men, and that 
scholastic predilection for the antique in liberty, which 

1 "Remarks on the Powers of the Council of Censors in Pennsyl 
vania," Philadelphia, 1784, pp. 13, a pamphlet in the library of the 
Historical Society of Pennsylvania. " It was composed in a hurry, I 
a,m told, by a fanatical school- master while the wisest and best men in 
the state were in the field." 

2 Marshall s " Remembrancer," p. 71, March 15, 1776, " Past five 
went to James Cannon s. Drank coffee with Timothy Matlack ;" p. 83, 
May 25, " Thence to James Cannon s who was gone out with Timothy 
Matlack to meet sundry county members at Norrington ;" ibid., May 30, 
" Dr. Young came there [Cannon s] to see me ;" p. 84, May 31, " Went 
from there to James Cannon s, found a select company of friends of the 
liberties of America ;" p. 91, July 3, " Near nine [P.M.] went to meet 
the Committee of Privates with others at Thome s School Room where 
three speakers ; viz., James Cannon, Timothy Matlack [and] Dr. Young 
flourished on the necessity of choosing eight persons to be proposed to 
the people for our Representatives in Convention." 

3 PENNA. MAG., Vol. III. p. 198. Graydon s "Memoirs," pp. 285-287. 



The Council of Censors. 17 

generally falls to the lot of a pedagogue, he acted accord 
ingly." 1 This certainly gives color to the view that Mr. 
Cannon may have had in mind the Council of Ephors of the 
Greeks and the censors of the Roman constitution. But 
the coterie to which he belonged may have been familiar 
with Kousseau s views and he may have taken the idea from 
" The Social Contract." 2 

George Bryan was an Irishman, 3 a great reader, fluent 
talker, intensely opposed " to whatever was English," and 
an ardent democrat. His interests were with the popular 
party, for with them lay his only chances for a public career, 
since by birth, training, and the lack of property he was 
unacceptable to the conservative party. Seven years later, 
when elected a member of the Council of Censors, he was 
attacked and derided in the public prints of Philadelphia, 
called "Censor-General of Pennsylvania," and " spem 
gregis." 4 " Z" in an open letter to a newspaper exclaims, 
"Judge Bryan for the city of Philadelphia! Hinc illce 
lachrymce." He is charged with being poor, with being 
actuated by the sentiments of neither morals nor religion, 
and with violating the very laws he has taken oath to 
support. 5 

Timothy Matlack was a Quaker and a native of New 
Jersey. He was a member of the Provincial Conference of 
June 18, 1776, and of the Constitutional Convention ; secre 
tary of state most of the time till March 25, 1783, and 
member of the Council of Safety from July, 1776, to March, 
1777. He was a fighting Quaker, and was disowned by 
the Society for the part he took in the Revolution. 6 

Dr. Young had lived in Boston and in Albany, was ap- 

1 " Remarks on the Powers of the Council of Censors" (Philadelphia, 
1784), p. 13 ; Pennsylvania Gazette, No. 2802, February 25, 1784 ; Mar 
shall s " Diary" and " Remembrancer." 

1 Loc. cit. 

3 Graydon s "Memoirs," pp. 287, 288. 

4 Pennsylvania Gazette, No. 2829, August 25, 1784. 

5 Ibid., No. 2782, October 8, 1783. 

6 PENNA. MAG., Vol. IV. p. 92, Vol. XVI. p. 315. 



18 The Council of Censors. 

pointed a surgeon in the army, and the following year, 1776, 
urged Vermont to adopt the Pennsylvania constitution. 
Of Thomas Paine, whose letters, subscrihed " Common 
Sense," appeared frequently in the Pennsylvania papers, it 
seems unnecessary to speak. 

The framers of the constitution evidently intended to 
build principally upon new lines and avoid all features of 
the proprietary government that had proved objectionable. 1 
They retained the unicameral Legislature and annual elec 
tions, but provided for manhood suffrage based on the pay 
ment of taxes and one year s residence. 2 The executive 
power was vested not in a single person, but in a president 
and Executive Council ; all bills were to be printed before 
they passed to a third reading, for the consideration of the 
people, and then they were to go to the next session of the 
Legislature for passage. Naturalization was made easy, one 
year s residence being required for the privilege of voting 
and two for holding office. 

The provision for amending the constitution early gave 
rise to criticism. Benjamin Rush in a letter to General 
Wayne (September 24, 177G) expressed the feeling that the 
constitution had many weaknesses, and complained that the 
governor and council had no veto power, but hoped the 
Council of Censors would remedy this in seven years. 3 
Even one year later Joseph Reed in a letter to the General 
Council of Pennsylvania lamented " that the constitution 
has not provided a more adequate and earlier mode of im 
proving what is right, and amending what is wrong." 4 
He regarded this as a weakness, thought seven years too 
long to wait for needed changes, and that the result would 
be either " spiritless languor" or " convulsion." 

On September 28 the convention completed its labors 

1 Letter of Thomas Smith to Arthur St. Glair, " St. Glair Papers," 
Vol. I. p. 222. 

2 " Proceedings and Minutes," pp. 54-66 ; " St. Glair Papers," Vol. 
I. p. 272. 

3 Stille s "Major-General Wayne and the Pennsylvania Line," p. 40. 

4 " Life and Correspondence of Joseph Eeed," Vol. I. p. 302. 



Tlie Council of Censors. 19 

and disbanded. 1 The constitution was not ratified by the 
people. Fears were entertained of Howe s invasion, and 
hence it was next to impossible to place the instrument in 
proper form before the people for their consideration. 

V. PENNSYLVANIA : THE INAUGURATION OF THE CONSTITU 
TION. 

On October 17 a caucus was held 2 for the purpose of 
" devising methods for setting aside sundry improper and 
unconstitutional rules laid down by the late convention in 
what they call their Plan or Frame of Government." 
After some deliberation, and agreeing to suggest some 
changes and present them in print for the consideration of 
the people of the State, it was decided to hold a general 
meeting in the State-House yard the following Monday 
afternoon, October 21. About fifteen hundred persons 
were present, Colonel Bayard presiding. The speakers 
opposed to the late convention were Colonel McKean and 
John Dickinson ; in its favor, James Cannon, Timothy 
Matlack, Dr. Young, and Colonel Smith, of York County. 3 
An adjournment was taken at night to the following day. 
At this adjourned meeting the resolves for changing the 
new government were carried by a large majority. 

The result of this meeting was the formulation of twenty- 
nine specific objections to the frame of government. " It 
is the sense of this meeting that the people are generally 
and greatly dissatisfied with the said constitution." Four 
specific resolutions were made with reference to the matter 
of amending the constitution. In effect they were that the 
amending of the constitution was committed to a Council of 
Censors, and that it required a two-thirds vote of that body 
to effect a change in the constitution ; that seven years must 
elapse before such amendments could be made, and that this 
was a violation of the rights of the freemen of the State ; 
that it is the sense of the meeting that the people are greatly 

1 " Proceedings and Minutes." 

2 Marshall s " Diary," p. 97. 3 Ibid. 



20 The Council of Censors. 

dissatisfied with the constitution ; that the Assembly ought 
to have full power to make needed changes in the constitu 
tion; and that these changes should be submitted to the 
people for their consideration before they are finally passed 
upon. 1 

Efforts were made to reach the people of the different 
counties 2 to secure their concurrence in the proceedings 
which resulted in the condemnation of so many features of 
the constitution. At the election the conservatives took 
little or no part, and the friends of the constitution thereby 
had a majority. 3 But when the Legislature assembled (No 
vember 28) it was found that the minority opposed to the 
constitution was large enough to prevent the transaction of 
business ; and matters were at a stand-still when Congress, 
fearing the appearance of the British in Pennsylvania, 
threatened to assume the reins of government for Penn 
sylvania if the Assembly did not proceed with business. 

At this point John Dickinson, member from Philadelphia, 
proposed to assist in organizing the government and doing 
business, provided that the Assembly would agree to a 
measure seeking to call a convention to revise the objection 
able features of the constitution. His proposition was not 
accepted and he resigned. 4 The Assembly adjourned De 
cember 14 and did not come together until January 13 ; but 
no business could be done. The new government was not 
organized until March 4 r when Thomas Wharton, Jr., was 
elected president and George Bryan vice-president of the 
Supreme Executive Council. The inauguration ceremonies 
took place March 5, and then the government of Pennsyl 
vania under the new constitution was ready for business. 5 

Mr. Wharton, the president of the Supreme Executive 
Council, felt that the constitution was not all that it should 

1 Pennsylvania Evening Post, No. 274, October 22, 1776. 
1 Marshall s " Diary," p. 99. 

3 Stille s " John Dickinson," Vol. I. p. 208 ; Marshall s " Diary," p. 103. 
4 " Thomas Wharton, Jr.," by Anne H. Wharton, PENNA. MAG., 
Vol. V. 

5 PENNA. MAO., Vol. V. pp. 437-439. 



The Council of Censors. 21 

be ; but he thought it wiser to proceed with it, and do the 
best he could, rather than leave Pennsylvania with no gov 
ernment when she was so hard pressed by an enemy in an 
adjoining State and by dissension among her own people. 1 

VI. PENNSYLVANIA : THE NEW CONSTITUTION AND -ITS 
ADMINISTRATION, 1776-1783. 

The constitution of Pennsylvania was launched upon a 
stormy sea. Howe and his army threatened to invade the 
State, and the political dissension added to the confusion. 
The political factions seemed to subdivide on religious 
lines. 2 The Whigs divided : some wanted to revise the 
constitution, while others wanted it kept as it was framed. 3 
The laws were disregarded. The trouble " brought the 
dregs to the top/ 

The influence of Cannon, Matlack, and Dr. Young was 
still felt. In the opinion of their opponents, they held 
" back the strength of the State by urging the execution of 
their rascally Government in preference to supporting 
measures for repelling the common enemy." 4 

The two chief points of attack in the constitution were 
the Legislature, with its single House, and the method of 
amending. The new Legislature was called a " mob gov 
ernment;" it was believed to appeal to the passions and 
interests of its supporters. 5 Joseph Reed, president of the 
Supreme Executive Council in 1778, felt that the method 
of amending was a weakness of the constitution, and par 
ticularly because of the seven-year time limit. 6 

Richard Bache, Benjamin Franklin s son-in-law, pre- 

1 He was elected councillor by only fourteen votes out of six thousand 
voters. "Kemarks on Powers of Council of Censors," Pennsylvania Ga 
zette, No. 2802, February 25, 1784. 

2 James Allen s " Diary," February 17, 1777 ; PENNA. MAG., Vol. IX. 
p. 279. 

3 Ibid., June 6, 1777 ; PENNA. MAG., Vol. IX. pp. 282, 283. 

4 Stille s " Wayne," p. 68 ; letter of Dr. B. Rush to General Wayne. 

5 Ibid., p. 69. 

6 "Life and Correspondence of Joseph Reed," Vol. I. p. 302. 



22 The Council of Censors. 

sented two petitions for having the constitution amended. 
The first he offered in June, 1777, in his capacity of chair 
man of the Board of War, 1 and the second was addressed 
to the citizens of Pennsylvania, and purported to come from 
the members of the Kepublican Society, Eichard Bache, 
chairman. Among the eighty-five signatures were those 
of George Clymer, Benjamin Rush, Robert Morris, arid 
Ephraim Blaine. Their petition specified, as among the ob 
jectionable features, the single Legislature and the Council 
of Censors, suggested a second legislative House, denied 
that it was a " House of Lords," because it would be elected 
by the people, and set forth that a Legislature of two Houses 
would not be composed of two orders of men, as the Roman 
government was. Their views of the censors may be best 
expressed by quoting their language : 

"What shall we say of the Council of Censors? Here indeed is a 
novelty of the most dangerous and alarming kind. 

" Our constitution-makers, not satisfied with the habitual despotism 
of a single and uncontrouled Legislature, have appointed stated seasons 
for extraordinary efforts of lawless power. 

" They have instituted a jubilee of tyranny to be celebrated at the end 
of every seven years. Glorious period ! When the foundations of gov 
ernment shall be torn up I When anarchy and licentiousness and force 
shall roam unawed and unrestrained ! When there shall be no fixed laws 
to which you can appeal for the justification of your conduct ! When 
there shall be no courts to which you can have recourse for protection ! 
When trials by jury, those odious obstructions that lie in the way of 
tyrants, shall be happily removed ! 

" Are you pleased with the prospect? If you wish not to feel it real 
ized by direful experience, lay hold eagerly upon the present opportunity 
which is offered you of preventing it, by voting for a new constitution 
to abolish this part of the constitution." 2 

The Legislature so far yielded to the demands of the 
petitioners that, on June 17, 1777, it voted to ascertain the 
wishes of the people as to calling a new convention. 3 This 
measure failed, however, in consequence of Howe s invasion. 

1 " Pennsylvania Archives," Vol. I. p. 54. 

2 Pennsylvania Gazette, No. 2545, March 24, 1779. 

3 " Proceedings and Minutes," p. 111. 



The Council of Censors. 23 

On November 28, 1778, a resolution passed the Legislature 
which gave the people an opportunity of voting, on March 
25 of the following year, for or against a convention ; and 
it specified the points which would come before such a con 
vention, among them the abolition of the Council of Cen 
sors. 1 Following this movement came petitions in oppo 
sition from thirteen thousand inhabitants, and February 27, 
1779, the resolution of November 28, 1778, was rescinded 
by a vote of forty-seven to seven. 

From this time to the meeting of the Council of Censors 
in 1783 nothing outside of newspaper criticism was done in 
the direction of changing the constitution of Pennsylvania. 2 

VII. PENNSYLVANIA: THE COUNCIL OP CENSORS AND ITS 

WORK. 

On November 13, 1783, the Council of Censors provided 
for in Section 47 of the constitution met in Philadelphia, 
and organized with Frederick A. Muhlenberg as president. 3 
On November 19 a committee, consisting of Fitzsimmons, 
Smiley, Irvine, and Reed, was appointed to consider and 
report as to whether the constitution had been kept in 
violate in every part. On Thursday, December 4, the 
council resolved that on Monday, the 15th, it would, in 
committee of the whole, consider whether there were any 
need of amending any article of the constitution. 4 On 
December 17 it was ordered that the committee appointed 
to see whether the constitution had been kept inviolate 
should inquire as to whether the executive and legislative 
branches of the government had gone beyond the powers 
assigned to them under the constitution. On January 1, 
1784, the council, in committee of the whole, Richard Mc 
Allister in the chair, considered the defects of the consti 
tution and as to whether amendments were needed. On 
January 2 the report of the committee of the whole was 

1 " Proceedings and Minutes," p. 111. 

2 Ibid., p. 112; "Life and Correspondence of Joseph Reed," Vol. I. 
pp. 46, 47. 

3 Ibid., p. 67. 4 Ibid. 



24 The Council of Censors. 

read to the House, and it was resolved that some articles 
of the constitution were defective and absolutely needed 
alteration and amendment. At this time a committee, 
consisting of Miles, Fitzsimmons, St. Glair, Hartley, and 
Arndt, was appointed to report on the defective articles 
of the constitution. On January 3 the committee was in 
structed to report the alterations and amendments that 
were needed in the constitution. 

Two committees reported in part on January 17, and 
their reports were ordered to lie on the table, the com 
mittee appointed to consider whether the constitution had 
been preserved inviolate and the committee appointed to 
propose needed amendments. 1 On January 19 the council 
considered the report of the committee on the defects and 
alterations of the constitution. This report " was read a 
second time by paragraphs, considered, amended, and 
adopted." 

Among the defects suggested were these : the Legislature 
with one House, the executive power vested in a president 
and council, the dependence of the judiciary upon the 
Legislature, frequent rotation in office, and unequal repre 
sentation. Among the changes or amendments proposed 
were these : that the Legislature consist of a House of Kep- 
resentatives and a legislative council; that the executive 
power be vested in a governor, who should have a veto 
power ; that the Assembly should be limited to one hundred 
members and the legislative council to twenty-nine mem 
bers; that judges should be appointed by the governor to 
serve during good behavior, with fixed salaries, and that 
Section 47, dealing with the Council of Censors, should be 
omitted. Each amendment proposed by the committee 
was passed by the council by a vote of twelve favoring and 
nine opposing. 

At this point a controversy arose on the construction to 

be placed on the report of the committee on amendments. 2 

The minority stoutly maintained that it involved the idea 

of calling a convention to consider the amendments pro- 

1 " Proceedings and Minutes." * Ibid., pp. 77-82. 



The Council of Censors. 25 

posed ; and that, having failed to obtain a two-thirds vote 
of the Council of Censors, no appeal could be made to the 
people to elect delegates to a Constitutional Convention. 

In their dissentient report they maintained that no appeal 
could be made to the people without violating Section 47 of 
the constitution, reciting the history of the action of the 
committee on amendments from its appointment on January 
2 to the adoption of its report on January 19 ; that changes 
should not be lightly made ; that at the end of every seven 
years such changes could be made, and that this council had 
now decided that no change at present is necessary ; that if 
Section 47 is now violated, other dangerous innovations 
may be made ; that the present constitution was made in 
great harmony ; that it had been the means of carrying the 
State through great crises, and if it should be changed now 
the responsibility must rest with the majority; that the 
constitution had well stood the test of trial ; that the pro 
posed changes would make the government expensive ; that 
if Section 47 were abolished, no method of changing the 
constitution, except revolution, would be left to the people. 

On January 21, by a vote of thirteen to nine, the council 
resolved, " That the council did not then nor at any time 
since acquiesce or agree in the opinion that the vote of 
January 2 determined the question as to calling a conven 
tion. " * The majority at this point framed and adopted an 
appeal to the citizens of Pennsylvania, and adjourned to 
meet June 5. 

The appeal of the majority set forth that the greatest 
question before the council was the constitution itself; that 
it was faulty as compared with the constitutions of other 
States ; that a majority of this council, but not two-thirds, 
desire to change certain parts of it as dangerous to the lib 
erties of the people ; that no reasonable motive for the 
opposition to these measures can be assigned ; that the con 
stitution was framed in the heat of party passions, when a 
foreign foe menaced the State, and when many of the citi 
zens were absent on military service ; that many citizens 
1 " Proceedings and Minutes," p. 80. 



26 The Council of Censors. 

opposed to it at the outset submitted to it only on the 
understanding that it should be amended ; that seven years 
had elapsed and a minority that does not represent one-third 
of the people binds the majority, as if afraid to trust the 
people to frame a government for themselves ; that the sov 
ereign people of the State could decide whether the present 
constitution was agreeable to them ; that the changes pro 
posed were not experiments, but had been well tried in 
sister States; that as the amending of the constitution was 
the most important matter for the council to consider, and 
as the minority were not likely to yield, an adjournment 
should be taken to June 1. 

This was followed by the appeal of the minority to the 
people of the State, setting forth that the majority of the 
Council of Censors had appointed a committee of their own 
to prepare and bring in a new frame of government; that 
time had been wasted and needless expense involved by 
the obstinacy of the small majority in trying to have a new 
constitution made instead of considering the infractions of 
the old one ; that the single executive or governor would be 
dangerous ; that the minority was manfully struggling to 
preserve the present constitution ; that the proposed second 
branch of the Legislature was in effect a House of Lords, 
and that the governor s powers should not be extended as 
proposed. 1 

On February 11 followed " A Candid Examination of the 
Address of the Minority by One of the Majority," wherein 
it was declared that because ten thought one way and twelve 
thought another way, and a two-thirds vote is necessary for 
calling a convention, therefore the minority felt that the 
question of calling a convention could not longer be an 
object of deliberation, the question of calling a convention 
never really came before the council ; it was agreed gen 
erally that the constitution was defective, and the committee 
was appointed to suggest alterations and changes that were 
needed ; it was denied that time had been wasted ; much 

1 Pennsylvania Gazette, No 2798, January 28, 1784, "Address of 
the Minority of the Council of Censors to the Citizens of Pennsylvania." 



The Council of Censors. 27 

laborious work had been done, and in regard to adjourn 
ment, the majority wished to make the time to March 1, 
but as people in the back counties wanted to be at home in 
planting time, the limit was set for June 1 ; as to the 
charge that a " king" or " governor" was proposed, the idea 
was advanced to intrust the executive with power and then 
hold him responsible for it; as to the self-assumed high 
moral stand taken by the minority, it was a fact that six of 
the council sat in judgment on their own acts ; the charge 
of the minority that the proposed second House of the 
Legislature would be a House of Lords had no foundation ; 
the people were to choose a legislative council from the 
same people that were represented in the lower House, and 
these members were to be elected by the same voters ; the 
minority wilfully misrepresented the purpose of the majority; 
the minority offered the plan of electing the governor by 
the people ; there could certainly be no objection to intrust 
ing the election of the chief magistrate to voters of the 
State. The " Candid Examination" goes on to defend the 
ideas of the majority respecting the veto power, the appoint 
ing power, the election of justices of the peace, etc. 

The present government of Pennsylvania, it declares, is 
very expensive and inefficient. By adopting the bicameral 
plan the interests of the State may be as fairly attended to 
and with far greater economy than is possible at present. 
The alterations proposed by the majority are designed to 
make the constitution of Pennsylvania like those of our 
neighboring States. They have a governor and a legislative 
branch of two Houses ; but none of them contains a " king" 
or a "House of Lords." It is a matter of the utmost im 
portance that a convention be called to consider the amend 
ing of the constitution. 1 

This " Candid Examination" was followed by " Remarks 
on the Powers of the Council of Censors," 2 setting forth 
that the council did not equitably represent the State, and 
that, as constituted, one-fifth of the State might really bind 

1 Pennsylvania Gazette, No. 2800, February 11, 1784. 

2 Ibid., No. 2802, February 25, 1784. 



28 The Council of Censors. 

four-fifths ; that the matter of inquiring as to the collection 
of taxes and the best use of public money should really be 
done by the Executive Council or by a standing committee 
of the General Assembly ; that seven years is too long to 
wait, as defaulters might escape ; that the council is power 
less to compel the General Assembly to repeal unjust laws ; 
the council has no power to inflict punishment commensurate 
with crimes committed; with so long a time (seven years) 
between sessions, persons censured may be dead, or may 
have run away ; the requirement of a two-thirds vote of the 
council to call a convention to amend the constitution is 
absurd and tyrannical, for one-eighth of the "State as repre 
sented might bind seven-eighths; that it is difficult to get 
at the collective opinions of a community so represented ; 
the censors usurp a right contrary to the ninth article of 
the Bill of Rights, by confining periods for amending the 
constitution to any one term; reviewing the constitution 
once in seven years tends to create a septennial convulsion 
stability would thus be lost ; if the people are happy, they 
ought not to be disturbed every seven years ; if unhappy, 
they ought not to wait so long; that the Council of Censors 
is absurd, dangerous, tyrannical, and unnecessary; it is too 
expensive; other States have no such provision, and Penn 
sylvania s position among them is lowered by this provision. 

When the Council of Censors resumed its duties after the 
adjournment, it proceeded (August 16) to take up the report 
of the committee appointed to consider whether the consti 
tution had been preserved inviolate in every part, a report 
which had been laid on the table on January 17. 1 

The report set forth that in view of the insidious attacks 
made upon the constitution it was the belief of the com 
mittee that the instrument in question is clear in its prin 
ciples, accurate in its forms, consistent in its several parts, 
and worthy the veneration of the people of Pennsylvania. 
The committee then proceeded to consider infractions of 
the constitution in detail, and finally resolved, September 
16, " that there does not appear to this council an absolute 
1 "Proceedings," pp. 83, 84. 



The Council of Censors. 29 

necessity to call a convention to alter or explain or amend 
the constitution." * The report was adopted by a vote of 
fourteen to eight, showing that the radical party was now in 
the majority. 

That this vote was somewhat indicative of the sentiment 
of the State on this question one may judge from the facts 
that a petition of eighteen thousand citizens had heen sent 
to the Council of Censors requesting them not to change 
the constitution, 2 and that in the bye-election held in Phila 
delphia City to fill the vacancy occasioned by the resignation 
of Miles, a conservative, George Bryan, a notorious radical, 
had been elected. 

The shifting of the majority vote during the adjournment 
of the Council of Censors from the conservative to the 
radical wing presents several interesting features. Both 
parties had issued addresses ; the adherents of each did not 
lack opportunity for knowing what was at stake. It was 
really the continuation of a contest which had been going 
on for many years. The conservatives had a majority but 
not two-thirds prior to adjournment; but at this time the 
council lacked five to complete its quota. After the ad 
journment the friends of the constitution, the radical party, 
polled fourteen votes as their maximum strength, a majority 
of the board. In the mean time the conservatives had lost 
Irvine, Hartley, and Miles ; while the radicals had gained 
Bryan, Montgomery, Potter, and McLene. Only once in 
all the proceedings did a member vote otherwise than on 
strict party lines, and in this instance the constitution was 
not involved. 

Whether the addresses of the majority and the minority 
had any effect in changing the sentiment of the people 
would be difficult to determine. It is certain, however, that 
everything possible was done to arouse public sentiment on 
both sides. Frederick Muhlenberg, in the early summer of 
1784, admitted that his side was beaten, and attributed it 
to the " blind passion and mad party spirit of the common 
crowd" in electing George Bryan. He felt that if the people 
1 " Proceedings," p. 124. 2 Ibid., p. 123. 



30 The Council of Censors. 

of the State had been equitably represented, particularly if 
the " intelligent part of the people" could have had a voice, 
their judgment would have favored the amendments. 1 

Joseph Reed felt that a mistake was made at the outset 
by proposing to make too many changes in the constitution. 
His view was that if only a few changes had been proposed, 
there might have been some reasonable hope of carrying 
a proposition for a Constitutional Convention through the 
Council of Censors by the requisite two-thirds vote. A 
moderate course would have tended to conciliate, and would 
have brought some measure of success in remedying some 
of the defects of the constitution, for it certainly had 
defects. 2 George. Bryan came in for a series of attacks in 
the Pennsylvania Gazette* in one of which he is character 
ized as the " spem gregis" and " Censor-General of Pennsyl 
vania." 4 

It seems that the cause of the conservative party was 
really hopeless from the outset, and that it grew more so as 
the agitation increased. There was no question as to the 
fact that the constitution was defective, but there was a re 
luctance to making radical changes ; and, moreover, it had 
not then occurred to the people as a whole how cumbrous 
their machinery was for changing the fundamental law. 
Then, too, controversies that dated back to the time when 
the proprietary government was in power were not entirely 
healed all these elements had their influence in keeping 
the party lines rigid in the Council of Censors. 

On September 24 the censors made their address to the 
people and on the 25th adjourned. 6 The address to the 
people set forth that although there doubtless were defects 
in the constitution, yet it had been decided that there was 
no absolute necessity for calling a convention, and partly for 
the reason that the censors could not agree upon the 

1 PENNA. MAG., Vol. XII. p. 199. 

2 Letter of Joseph Keed to William Bradford, May 2, 1784, " Life and 
Correspondence of Joseph Keed," Vol. II. p. 411. 

3 Pennsylvania Gazette, Nos. 2829, 2830, 2831, 2833, 2834. 

4 Ibid., No. 2829, August 25, 1784. 5 " Proceedings," p. 128. 



The Council of Censors. 31 

changes needed ; that the censors had set forth in detail 
the infringements upon the constitution which they had 
observed ; that they regretted the lack of unanimity in the 
council and regarded it as unfortunate that the question of 
calling a convention should have come before the censors 
so early in their sessions ; and that the censors had not at 
tempted to interpret the constitution further than to ex 
plain their view of certain sections to show wherein they 
had been violated. 1 

This address was approved by a vote of twelve to nine, 
and the work of the Council of Censors of Pennsylvania 
for 1783-84 was ended. 

VIII. PENNSYLVANIA: THE CONVENTION OF 1789-90. 

As the Council of Censors was to be elected once in 
seven years, the second council for Pennsylvania would have 
been elected in 1790. Following closely upon the heels of 
the Council of Censors of 1783-84 came the discontent with 
the old Confederation and the framing and adoption of the 
Federal Constitution. Pennsylvania ratified this instru 
ment, which provided for amendments in a more equitable 
manner than by a Council of Censors. 

The change in sentiment thus evinced bore fruit in a 
proposition presented to the Legislature on March 24, 1789, 
to appeal to the people for their judgment as to calling a 
Constitutional Convention ; if they concurred in this, then 
a convention was to be chosen. The House passed these 
resolutions by a vote of forty-one to seventeen. 

A dissentient report was made by sixteen members, 
among whom was that James McLene who had, as a mem 
ber of the Council of Censors, voted to preserve the in 
tegrity of the constitution in 1776. Their main line of 
argument was that if changes were to be made they should 
be made by a Council of Censors, for any other way was 
not in accordance with the constitution and might lead to 
a revolution ; the present form of government was not too 
expensive, indeed, not as expensive as those of sister States ; 
1 "Proceedings," pp. 127, 128. 



32 The Council of Censors. 

and, while it might be shown that there are defects in our 
constitution, it should be replied that it has stood the test 
of time; but if it were to be amended it should be done in 
the way provided by the constitution. 1 

On September 15 of the same year the General Assembly 
in committee of the whole considered the matter of calling 
a convention to alter and amend the constitution, and re 
ported to the House in favor of the measure. The report 
set forth that it was believed that the people desired this, 
" in preference to the mode by the Council of Censors, 
which was not only unequal and unnecessarily expensive, 
but too dilatory to produce the speedy and necessary alter 
ations which the late change in the political union and the 
exigencies of the State required;" that the Bill of Rights 
recognized the people as possessed of all the necessary 
powers in the premises ; that the members of the Assembly 
had mixed with the people of the State and found them de 
sirous to have a convention called ; that this proceeding 
was right and necessary. The report recommended that 
the members of the convention be elected as the members 
of the Assembly are elected and upon the same day ; and 
the suggestion was added that the convention should meet, 
propose the needed alterations and amendments, submit 
them to the people for their consideration, and then adjourn 
for four months previous to the completion of their work. 2 

One member objected to the Assembly s going beyond 
its powers to instruct a convention as to any details of its 
duties, since this should be done by the people whom it 
was to represent. The resolution for calling a convention 
was passed by a vote of thirty-nine to seventeen. 

Here, again, came a dissentient report by ten members, 
setting forth that the Assembly had no right to call a con 
vention ; that there was no reason for such a measure ; that 
when a recent attempt was made to ascertain the sense of 
the people as to such a measure, they were very pronounced 
in opposing it, because they were satisfied with the present 
constitution ; that the Executive Council had not been 
1 " Proceedings," pp. 131-133. 2 Ibid., 134 et seg. 



The Council of Censors. 33 

properly consulted as to the measures proposed ; that too 
little time was given the people to prepare for such a 
measure ; and that this order partook of the nature of a 
revolution. 

A correspondent of the Gazette, in April, declared that 
the choice of the State was the result of the sentiments of 
her citizens ; that the Council of Censors that met to con 
sider the present constitution was elected under the same 
vicious principle upon which our constitution was framed, 
"Each county, great and small, had the same number of 
voters, each had a vote." l The people of Pennsylvania had 
tested the Council of Censors once and had been disap 
pointed, and for a long time no opportunity had been given 
the people to express their desire as to the changing of our 
present constitution. 

Benjamin Rush, who had opposed the constitution in 
1777, was still hostile to it, and urged Timothy Pickering 
to accept a place in the new convention. He felt that one 
of the greatest boons to Pennsylvania would be a conven 
tion that should change the State constitution to correspond 
more fully with " the new continental wagon." 2 Albert Gal- 
latin felt that the constitution ought to be changed, but he 
wanted it changed in the legal way, through the censors. 
He became, however, a member of the convention, and in 
after-years spoke in high terms of the character and ability 
of the members. 3 Charles Biddle s views were quite like 
those of Mr. Gallatin. 4 There was evidently a general feel 
ing in the State that the constitution of 1776, framed in the 
midst of war and confusion, was not adequate to the needs 
of the State. The political judgment of Pennsylvania had 
outgrown it. 

The convention for revising the constitution met at 
Philadelphia on November 24, 1789, in accordance with 

1 Pennsylvania Gazette, April 29, 1789. 

2 Letter of Benjamin Rush, Pickering and Upham s " Life of Picker 
ing," Vol. II. p. 428. 

3 Adams s " Life of Gallatin," pp. 79-81. 

4 " Autobiography of Charles Biddle." 



34 The Council of Censors. 

the vote of the General Assembly ; but, no quorum being 
present, it adjourned to the 25th, when it organized, with 
Thomas Mifflin as president. On December 21 the com 
mittee appointed to bring in a draft of a constitution pre 
sented a report embracing substantially the points which 
had been rejected by the Council of Censors in 1783-84. 
Among these were the bicameral Legislature, a single 
executive to be elected by the people, and a qualified veto 
power to be vested in the governor. 

Article IX., Section II., contained all that the committee 
had to offer on the subject of amending tjie constitution : l 

" That all power is inherent in the people, and all free governments 
are founded on their authority, and instituted for their peace, safety, 
and happiness : For the advancement of these ends, they have, at all 
times, an unalienable and indefeasible right to alter, reform, or abolish 
their government, in such manner as they may think proper." 

The Council of Censors was ignored, the people having 
evidently become wearied with so unwieldy a piece of po 
litical machinery, and the more so because its weakness 
became more manifest as the people came to see and appre 
ciate their needs. 

The reason why the people of Pennsylvania had borne 
with the constitution of 1776 and the Council of Censors 
indeed, their very origin lay in the fact that the State had 
been for years divided into two hostile political camps. 
The censors and the constitution of 1776 were the means 
w r hereby the radical party hoped to keep their own rights 
from invasion by the conservatives, who had been so 
powerful in the proprietary colony. 

The Revolutionary feelings were still in evidence when 
the Council of Censors met in 1783-84 ; but during the next 
seven years a change had come. The Rousseau views which 
had evidently prompted Paine, Matlack, and Cannon to 
their work had quietly yielded to the milder influence of 
John Locke. The Confederation had proved to be a failure. 
The thirteen independent States had united to form " a more 

perfect union." 

^ Proceedings," p. 303. 



The Council of Censors. 35 

The United States had ventured to trust the execution of 
its laws to a single executive properly checked by the other 
departments of the government. Philadelphia was the seat 
of the convention in which this work was done; Pennsyl 
vania was the Keystone State ; she felt the changes that had 
come about in the other commonwealths. In 1789 the peo 
ple were ready to move forward, and the new constitution 
was the exponent of this progress. Enough had been done 
when it was declared that the people were the rightful re 
positories of the political power of the State, and that they 
could of right decide the times and the manner of altering 
or amending their fundamental law. 

IX. THE SIGNIFICANCE OF THE COUNCIL OF CENSORS IN 
PENNSYLVANIA. 

Pennsylvania enjoyed a unique position among her sister 
colonies from her geographical position and from the fact 
that her proprietary government continued down to the 
Revolution, a fact which contributed not a little to the 
political bitterness which was manifested so forcibly and 
frequently while the constitution of 1776 was in force. 

This constitution was a step into the darkness of experi 
ment. There were no models of popular government to take 
pattern by; hence the models of Greece and Rome were 
studied in the light of Locke, Montesquieu, and Rousseau. 

The fatal stumbling-block seems to have been found in the 
plan for giving the people supervision over their government 
and its officials. 

The constitution of 1776 seems to have been the advance 
wave of the levelling influence of the American Revolution. 
The social and political condition of Pennsylvania was ready 
for this change, and the commotion which followed the 
making of the new constitution was simply a preparation 
for the more stable form which was sure to follow. 

The Council of Censors of 1783-84 was elected, and its 
work was given to the people, but the constitution was con 
tinued. Faulty and defective as it was, the people of Penn 
sylvania were not to be dragooned into more radical changes. 



36 The Council of Censors. 

Within the following seven years thirteen independent 
republics laid aside the treaty or Confederation by which 
they were loosely held together and merged their sovereignty 
in a national government. 

The fundamental law of this nation provided a means 
always accessible to the people for altering or amending this 
great instrument, which was the product of the ablest states 
manship of the States. While the influence of this great 
work was fresh in the minds of the people of Pennsylvania, 
and just on the eve of the election of a second Council of 
Censors, her General Assembly touched* the pulse of public 
sentiment and, finding the people ready for the movement, 
called a convention which framed a constitution on better 
lines and with better adjusted political machinery. In the 
executive, in the Legislature, and in the method of amending 
the constitution the principal changes were made ; and the 
great principle was laid down, and has ever since been main 
tained, that it is in the province of the people of the State to 
decide the time and the method of changing the fundamental 
law in a popular government. 



THE COUNCIL OF CENSORS OF VERMONT. ( ) 



The territory now included in the state of Vermont 
was originally claimed by New Hampshire and New York. 

In response to a letter from Governor Wentworth of 
New Hampshire to Governor Clinton of New York, rela 
tive to determining the boundary between New York and 
New Hampshire west of the Connecticut River, the letter 
dated at Portsmouth, N. IL, November 17, 1749, Governor 
Clinton replied that the province of New York was boun 
ded on the east by the Connecticut Eiver agreeably to the 
grant made by Charles II. of England to his brother James, 
Duke of York. ( 8 ) 

On January 3d, of this year, Governor Wentworth gave 
a grant of a township in the south-western part of what is 
now Vermont. This was named Bennington, and was the 
earliest grant made by New Hampshire. Between this 
time and December, 170-1, one hundred and thirty town 
grants and six private grants had been made by New 
Hampshire. New York did not recognize the legality of 
these grants and efforts were made to place and retain them 
under the power of New York. Governor Tryon offered 
rewards for the arrest of Ethan Allen and others, because 
of their prominence in resisting the claims of New York. 
The Vermonters at once banded together to protect the 
towns of the New Hampshire Grants from interference 
on the part of New York. 

In March, 1775, occurred the riot at Westminster, and 
after this the towns east of the Green Mountains united in 

( ) Tiie portion of this paper which follows was read before the 
Vermont Historical Society at Montpelier on October 18, 1898, and 
is here reprinted from the Proceedings of that Society, by its kind 
permission. 

(-) Slade, Vermont State Papers, p. 9, et seq. 



38 The Council of Censors. 

resistance to the claims of New York, and at a meeting in 
Westminster, April 1], 1775, a resolution to this effect was 
adopted. ( ) 

Before July 4, 1776, the citizens of the New Hamp 
shire Grants were mostly loyal to Great Britain ; after this 
date they claimed to be independent, and called a meeting 
of citizens at Dorset, July 21. An adjournment was taken 
to September 25, when delegates numbering fifty-one and 
representing thirty-five towns, met at Cephas Kent s in Dor 
set^ 2 ) At this meeting it was resolved " to declare the New 
Hampshire Grants a free and separate district." This 
vote passed without a dissenting voice. The meeting 
further resolved as follows : ( a ) 

" We, the subscribers, inhabitants of that district of 
land commonly called and known by the name of New 
Hampshire Grants, being legally delegated and authorized 
to transact the public and political affairs of the aforesaid 
district for ourselves and constituents, do solemnly covenant 
and engage, that, for the time being, we will strictly and 
religiously adhere to the several resolves of this or a future 
convention, constituted on said district by the free voice of 
the friends to American liberties, which shall not be repug 
nant to the resolves of the honorable the Continental Con 
gress relative to the cause of America." 

This Convention adjourned to meet at Westminster 
January 15, 1777. At this meeting it was voted, "That 
the district of territory comprehending and usually known 
by the name and description of the New Hampshire 
grants," be a new and separate state, " forever hereafter to 
be called, known and distinguished by the name of New 
Connecticut." ( 4 ) On January 22, the Convention adjourned 
to meet at Windsor the first Wednesday in June.( 5 ) 

( ) Slade, State Papers, p. 60. 
(-) State Papers, p. 66. 

( 3 ) State Papers, p. 67. 

( 4 ) See Hiland Hall s Early Vermont, pp. 239, 497-500. 

( 5 ) State Papers, p. 79. 



The Council of Censors. 39 

This Convention met according to adjournment on the 
iirst Wednesday in June and voted that a committee be 
appointed to draft a constitution; "and a resolution was 
adopted, recommending to each town to elect delegates to 
meet in convention, at Windsor, on the second day of July 
following." July 2, the delegates came together and pro 
ceeded to consider the draft of the constitution proposed. 
The constitution was read paragraph by paragraph and 
adopted without referring it to the people for ratifica 
tion. There were two reasons for this : 1, It was definitely 
understood by the towns that the delegates chosen for this 
convention were vested with all necessary powers for fram 
ing a constitution ; and, 2, Burgoyne s invasion made it 
impossible to call the citizens together for purposes of rati 
fication. Moreover, Pennsylvania had adopted a constitu 
tion the previous year without ratification, and besides, the 
theory of popular government was not so far advanced then 
as to disturb public judgment over such an omission, and 
particularly since the power that made, was able to unmake, 
the constitution at will. 

In this Convention it was voted that the first election, 
under the constitution should be held in December, 1777, 
and that the legislature should meet at Bennington the fol 
lowing January. 

This Convention had appointed a Committee of Safety 
as a part of its work, to provide for the defence of the 
State. Ira Allen, who was to have the constitution printed 
at Hartford, Connecticut, for distribution to the citizens of 
Vermont in season for the December election, was unable 
to carry out his plans, so the Committee of Safety sum 
moned the Convention to meet again December 24, 1777. ( ) 
The Convention met, made some changes in the constitu 
tion, changed the date of the new election to the first Tues 
day in March, 1778, and voted that the Legislature assemble 

t 1 ) State Papers, p. 80. 



4:0 The Council of Censors. 

the second Thursday of the same month at Windsor. The 
Legislature met accordingly in Windsor, adopted the Con 
stitution and proceeded with the legislative work of the 
State. Bennington was the only town in the State that 
opposed the adoption of the Constitution without its being 
previously ratified by the people ; this objection was drop 
ped. 

The source of the first Vermont Constitution can readily 
be traced. At the Westminster Convention, January 15, 
1777, Dr. Jonas Fay, Thomas Chittenden, Heman Allen 
and Reuben Jones brought in a draft of a petition to Con 
gress relative to the territory of Vermont, based on her 
declaration of independence and the free action of her citi 
zens in convention assembled. This committee went to 
Philadelphia and presented their petition to Congress ; but 
in the meantime they fell inQ with the "red republicans " 
who had been instrumental in drawing up the draft of 
the Pennsylvania Constitution the year previous. Dr. 
Thomas Young, James Cannon, and Timothy Matlack were 
leaders ( 2 ) of the radicals in Pennsylvania, and Dr. Young 
was an old acquaintance of Ethan Allen s while the latter 
resided in Connecticut. Dr. Young suggested the name of 
Vermont and in a public letter dated April 11, 1777, and 
published in a Philadelphia newspaper, he urged the Ver- 
monters to adopt a State organization and seek admission 
to Congress. As a matter of fact the Constitution of 
Vermont was an exact copy of that of Pennsylvania, with a 
few minor changes. Among its provisions was that of pro 
viding a council of thirteen censors to be elected once in 
seven years, to determine whether the laws were duly exe 
cuted, whether they were constitutional, and whether there 
were need of a revision of the Constitution. This section, 
Section XLV., read as follows : 

(M Ira Allen s History of Vermont, p. 80. 

( 2 ) Hiland Hall s History of Vermont, pp. 497-500. 



The Council of Censors. 41 

" In order that the freedom of this commonwealth may 
be preserved inviolate, forever, there shall be chosen, by 
ballot, by the Freemen of this State, on the last Wednesday 
in March, in the year one thousand seven hundred and 
eighty-live, and. on the last Wednesday in March, in every 
seven years thereafter, thirteen persons, who shall be chosen 
in the same manner the Council is chosen except they shall 
not be out of the Council or General Assembly to be called 
the Council of Censors ; who shall meet together on the first 
Wednesday of June next ensuing their election ; the major 
ity of whom shall be a quorum in every case, except as to 
calling a Convention, in which two-thirds of the whole num 
ber elected shall agree ; and whose duty it shall be to 
enquire whether the Constitution has been preserved in 
violate in every part ; and whether the legislative and ex 
ecutive 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 by 
the Constitution. 

" They are also to enquire whether the public taxes 
have been justly laid and collected, in all parts of this Com 
monwealth in what manner the public monies have been 
disposed of, and whether the laws have been duly executed. 

" For these purposes they shall have power to send for 
persons, papers and records; they shall have authority to 
pass public censures to order impeachments, and to recom 
mend to the legislature the repealing such laws as appearto 
them to have been enacted contrary to the principles of the 
Constitution. These powers they shall continue to have, 
for and during the space of one year from the day of their 
election, and no longer. The said Council of Censors shall 
also have power to call a Convention, to meet within two 
years after their sitting, if there appears to them an abso 
lute necessity of amending any article of this Constitution 
which may be defective explaining such as maybe thought 



42 The Council of Censors. 

not clearly expressed, and adding such as are necessary for 
the preservation of the rights and happiness of the people ; 
but the articles to be amended, and the amendments pro 
posed, and such articles as are proposed to be added or 
abolished, shall be promulgated at least six months before 
the day appointed for the election of such convention, lor 
the previous consideration of the people, that they may have 
an opportunity of instructing their delegates on the sub- 
ject." ( ) 

The Constitution of Vermont was launched upon a 
stormy sea. The colonists were in the midst of a war for 
their independence; her territory had already been invaded 
and made the scene of battle. Nor was this all her trouble ; 
for New York was pressing her claims to the territory 
known as the New Hampshire Grants. 

At the session of the Legislature held in Bennington 
on February 11. 1779, there was a formal ratification of the 
Constitution and a declaration that this instrument with 
such alterations or amendments as should be made in the 
future should be "forever considered, held, and maintained, 
as part of the laws of this State." ( 2 ) At the June session 
held at "Windsor in 1782, there was a second formal rati 
fication ( 3 ) which recognized the 45th section of the Con 
stitution as providing the means for further altering or 
amending the Constitution. 

At first the people of Vermont seem to have regarded 
the Constitution as of no more importance than an ordinary 
act of the legislature.( 4 ) That the importance of the Con 
stitution as the fundamental law of the State was a matter 
of growth in the minds of the people of Vermont is borne 
out by the fact that it was not until November 2, 179t>, that 

( ) Slade, State Papers, p. 255. 

( 2 ) Slade, State Papers, p. 288. 

( 3 ) Slade, State Papers, p. 449. 

( 4 ) Judge Chipman s Memoirs of Thomas Chittenden, Chap. 



The Council of Censors. 43 

the legislature declared the Constitution to be the " supreme 
law of the land."( ) 

That this view should have been taken seems reason 
able from the nature of the case. Here was an independent 
community, lately under an exacting monarchy, with its in 
tegrity threatened by the demands of a sister commonwealth, 
now attempting to govern itself by its own laws. The 
people felt their way until their constitutional light became 
bright enough for them to proceed with a full measure of 
conscious strength. 

The Earlier Councils of Censors and Conventions, 
J 785- J 836. 

The first Council of Censors met in 1785 and held three 
sessions; one at Norwich in June, one at Windsor in Sep 
tember, and one at I>ennington in February, 1780. (") This 
Council renewed the legislation of the previous seven years, 
proposed a number of amendments to the Constitution, and 
voted that a convention should be called to consider them. 

The convention met at Manchester on the last Thurs 
day in June, 178f>, and ratified some of the amendments 
proposed by the Council. ( 3 ) Among these the most im 
portant seem to be these: that the legislative, executive, and 
judiciary departments should be kept distinct ; that the 
people "by their legal representatives" have the sole right 
of governing and regulating the police affairs of the State ; 
and that the fourteenth section of the Frame of Government 
should so read as to confer upon the Governor and Council 
a qualified veto power, and the power to propose amend 
ments to bills passed by the Assembly, with the further 
provision that if the Assembly should not concur in these 
amendments then the Governor and Council could suspend 

( J ) Poore s Charters and Constitutions, p. 1875. 
( 8 ) Slade, State Papers, p. 511. 

( 3 ) .Records of the Governor and Council, Vol. I, pp. 84-85. 
Chipman s Memoirs of Thomas Chittenden, Chap. VIII. 



44 The Council of Censors. 

the passage of these bills until the next session of the Legis 
lature. ( ) We believe this to have been the first instance in 
constitutional history of a written constitution being amended 
by representatives of the people and at the command of the 
people. 

Vermont was admitted to the Union by the Act of 
Congress of March 6, 1791, with its Constitution as it had been 
amended by the first Council of Censors and the Manches 
ter Convention of 1786 and ratified ( 2 ) by the state legisla 
ture of 1787. Hitherto Vermont bad enjoyed the unique 
distinction of being an independent commonwealth, bound 
to the Union by no ties save those of patriotic sympathy. 
She had established and maintained a government, had re 
sisted invasion, had assisted in carrying on the Revolution, 
and bad patiently waited for the opportunity to yield her 
independence to the end that she might enjoy the privileges 
and share the burdens of the federal union. 

In 1792 another Council met and proposed several 
radical changes. It was proposed that the Legislature should 
be made bi-cameral, a Senate taking the place of the " Ex 
ecutive Council"; each town was to have one representa 
tive in the lower house provided it had forty families, other 
wise two or more towns together having forty families could 
send one; the Senate was to be based on proportional repre 
sentation from the counties. ( 3 ) In its address to the people, 
in 1792, the Council said: "In examining the proceedings 
of the legislative and executive departments of this govern 
ment during the last septenary, we are happy to find no 
proceedings which we judge unconstitutional or deserving 

( ! ) Mr. Huse, Revised Laws of Vermont, edition of 1881, p. 
57, thinks that the Council may be said practically to have effected 
a general revision of the Constitution in respect to details and expres 
sion. 

( 8 ) Governor and Council of Vermont, Vol. III. p. 133. Chip- 
man s Memoirs of Thomas Chittenden, Chap. V. 

( n ) Thompson s Gazetteer, p. 125; Slade, State Papers, p. 545-6. 



T/ie Council of Censors. 45 

of censure.* ( ) The Convention met at Windsor, July 4-9, 
1793, but none of the proposed amendments were adopted. 
The people of Vermont were slow r to adopt the recommend 
ations of the Council of Censors. They had followed Penn 
sylvania in adopting their Constitution with its single legis 
lative branch and Council of Censors. Pennsylvania had 
now discarded these two institutions, but conservative Ver 
mont held steadily to her adopted plan. 

Even at this early day, however, an idea had begun to 
take root that the Council of Censors was not worthy of the 
full measure of confidence which it seemed to possess at 
first. Dr. Samuel Williams, writing in 1806, in speaking 
of this body declared that an experience of thirty years had 
disappointed the people as to the benefits derived from the 
Council of Censors. He complained of the manner of 
their election, that it was liable to partisan control, that 
their proceedings were often characterized by ; prejudice, 
partiality, contracted views and want of comprehension. 
The assembly often pay but little regard to their decisions 
and the people still less." He added, " Time and experi 
ence will determine what is wanted in this part of our Con 
stitution." ( 2 ) 

The third Council of Censors met in February, 1800, 
but they prepared no amendments to the Constitution. 
They recommended, however, that the Legislature repeal 
the act of October 6, 1796, empowering the supreme court 
judges to deprive a man of his right to vote " for any evil 
action which shall render him notoriously scandalous." ( 3 ) 
They also recommended the repeal of the act of October 
25, 1797, relating to the support of the gospel, except the 
first and last sections, as contrary to the third section of the 
bill of rights in the Constitution. They also took note of 

( 1 ) Proceedings of Council of Censors, Printed by Anthony 
Haswell in Rutland, 1792. Bound volume in State Library, Mont- 
pelier, Vt. 

( 2 ) Williams History of Vermont, II., pp. 400-401. 

( 3 ) Address of Council of Censors, Vermont State Library, p. 11. 



46 The Council of Censors. 

a matter relative to a sheriff s charging constructive mile 
age in serving court papers. The case is not without inter 
est. The Council of Censors ordered the Legislature to 
impeach William Coley, high sheriff of Bennington county, 
for taking illegal fees for summoning the grand and petit 
jurors to serve before the supreme court at Manchester at 
the February and June terms, 1798. It should be stated 
that the supreme court judges had approved his charges. 
The Legislature took the matter up and October 26, 
1799, went into a committee of the whole to consider the 
question set forth by the Council of Censors. This resulted 
in the appointment of a committee to take up the case of 
Sheriff Coley ; and, November 2, 1799, Richard Hnrd 
reported for the committee, finding that Coley s charges for 
service of venires on the jurors in question amounted to 
$38.27, that the judges regarded it a high price, that they 
audited it on Coley s representation that he had been 
obliged to go into several towns to summon the jurors. ( ) 
The committee further reported that as the law required a 
venire for fifteen jurors, for each petit jury, it was presum 
able that that number was summoned ; they found that six 
others were summoned ; that he made two journeys to 
Dorset and one to Sandgate in quest of jurors. The com 
mittee carefully considered his statements and found that 
he was entitled to $39.23, a sum larger than he actually 
charged by $1.06. It appeared by the report of this com 
mittee that Mr. Coley did the work above referred to and 
personally attended the two sessions of court, and carried 
one prisoner from Bennington to Manchester receiving 
for all the sum of $53.65. ( 2 ) The Legislature ratified this 
report and the order of the Council of Censors was dis 
missed. 

At this time a committee was appointed to report what 
changes should be made in the " Fee-Bill " and, three days 

( ! ) Address of Council of Censors, 1800, pp. 12-13. 
( 2 ) Address of Council of Censors, 1800, p. 13. 



The Council of Censors. 47 

later, November 5, 1799, Mr. Josiah Wright for the com 
mittee reported as follows : 

" That upon examining the law, [the committee] are of 
opinion it cannot be construed so as to give an officer more 
than six cents a mile for actual travel for serving any one 
process, although several persons may be named in it, and 
served on the same, except it be a forced construction. 
Therefore, are of opinion that no alteration ought to be 
made." 

The Council of Censors took up this work of the legis- 
ture, examined it critically, showed the infelicity in allow 
ing constructive mileage to Mr. Coley and later affirming a 
principle opposed to this construction of the law. This 
case and several other important matters were published in 
the Address to the People, and distributed over the State. 

There is a peculiar interest in this case because it sheds 
light on the principles which underlay the structure of the 
Vermont commonwealth. No one could affirm that Sheriff 
Coley was becoming a plutocrat when his fees for an entire 
year were only $53.65 ; nor can one fail to admire the fear 
less action of the Censors who bravely examined every detail 
of the case and laid it before the people of the State. Here 
reappears the spirit of John Hampden who will not yield a 
principle even though the amount at issue be but twenty 
shillings. 

The fourth Council of Censors met at Woodstock in 
December, 1806. No amendments to the Constitution were 
proposed ; but, in the address to the people, they suggested 
that the Legislature should change several laws. One was 
the act of November 3, 1800, in support of the gospel, the 
objection being that it was contrary to the third section of 
the bill of rights ; the other law was the one that required 
an alien or stranger to remain three years in the State before 
he could acquire the privileges of citizenship, the change 
suggested making it apply to all citizens alike, native or 



48 The Council of Censors. 

adopted, agreeably to the thirty-ninth section of the Consti 
tution. Q 

The fifth Council of Censors met at Montpelier, June 
2-4, and October 14 November 1, 1 813, and at Middlebury, 
January 19-24, 1814. ( 2 ) This time a large number of 
amendments were proposed, but of these we only mention 
the most important. The plan for a Senate to take the place 
of the Executive Council that was proposed in 1702 and 
failed of ratification by the convention, was now renewed 
with several suggested changes. It was to consist of twenty- 
four members apportioned among the counties according to 
population ; the term of office was to be three years, one- 
third retiring each year. The judges of the Supreme Court 
were to serve during good behavior subject to removal from 
office on a two-thirds vote of both houses of the Legisla 
ture. It was proposed, also, that an amendment be added 
prohibiting the suspension of the writ of habeas corpus 
under any circumstances. 

No changes had been made in the constitution for 
twenty -one years, and none had been suggested by the Coun 
cil of Censors for fourteen years. A strong effort was now 
made to bring the Vermont Constitution up to a point of 
excellence that should cause it to rank with those of the 
sister states. On February 22, 1814, Charles Marsh, Esq., 
delivered an address ( 3 ) at Norwich on the occasion of the 
celebration of Washington s birthday. His theme was the 
proposed amendments. He argued in favor of a senate to 
check the legislation of the lower house; he would give 
the judiciary greater independence by extending the tenure 
of office of the judges. He disapproved of the idea of 
electing the executive council on a general ticket because 
men would be obliged to vote for men with whom they were 

(!) Proceedings of Council of Censors, Vermont State Library. 

( 2 ) Journal of Council of Censors, Vermont State Library. 

( 3 ) An Essay on the Amendments Proposed : Hanover, N. H. ; 
Printed by Charles Spear. Pamphlet of 21 pp., Vermont State 
Library. 



The Council of Censors. 49 

not acquainted. Representation in the senate would, he 
asserted, secure the election of men who were known by 
their neighbors. He cited the fickleness of France as shown 
in her national assembly, and endorsed the views of Wash 
ington that the salaries of judges should not be diminished 
during continuance in office. 

The Convention called to consider the proposed amend 
ments met at Montpelier June 7, 1814, and completed their 
work June 9. Not an amendment suggested by the Coun 
cil of Censors was endorsed. Twenty-three amendments 
were negatived without a dissenting vote; the proposi 
tion for a senate commanded twenty votes in its favor, 
while one hundred and eighty -eight voted against it. 
The amendment prohibiting the suspension of the writ 
of habeas corpus polled the strongest vote in its favor of 
any amendment, but it, too, went clown with fifty-one yeas 
in its favor to one hundred and fifty-six nays opposed to 
its ratification. ( ) The sentiments of Mr. Marsh were evi 
dently not shared by a majority of the citizens of Vermont, 
for the people were not ready for these advanced steps in 
political life. 

The sixth Council of Censors met at Montpelier and 
held three sessions : June 7-8, October 17-27, 1820 ; and 
March 15-26, 1821. Five amendments ( 2 ) were proposed 
and a Constitutional Convention was called. The amend 
ments in brief were to vest the legislative po\ver in the 
Executive Council and House of Representatives; to appor 
tion the representatives so that there should be two repre 
sentatives for every 2,000 inhabitants ; to prevent any judge 
of the supreme court from holding any other state or town 
office ; to vest the executive power in a governor and lieu 
tenant-governor ; and to make the period of service of the 
supreme court judges seven years. It further provided for 

( ) Constitutional Conventions of Vermont, Vermont State 
Library. 

( 2 ) Journal of Council of Censors, Vermont State Library. 



50 The Council of Censors. 

the removal of the judges by impeachment, should an 
occasion arise for such a step. 

The Constitutional Convention met at Montpelier, 
February 21-23, 1822, to consider the amendments pro 
posed by the Censors. It sat only two days and adjourned 
without date. The first amendment was defeated with no 
one to support it ; the vote on the second stood fourteen 
yeas, two hundred and two nays ; the third stood yeas 
ninety-three, nays one hundred and twenty-one ; the fourth 
was discarded but the vote was not given ; the fifth stood 
yeas nineteen, nays one hundred and ninety-three. ( ) Not 
an amendment was ratified, and Vermont s fundamental 
law stood just where it did when she entered the Union in 
1791. 

The seventh Council of Censors met at Montpelier for 
two sessions June 6-8, and October 15-26 ; and at Bur 
lington November 26-30, 1827. It proposed three amend 
ments^) and called a Constitutional Convention. For 
the fourth time a Senate was suggested as a second 
branch of the legislature, a qualified veto power was given 
to the governor, and it was further proposed that the priv 
ileges of citizenship should be denied to foreigners until 
they should be naturalized under the laws of the United 
States. 

The Convention met at Montpelier June 26-28, 1828. 
It passed the third amendment, as to naturalization as a 
requisite for citizenship in the State, by a vote of one 
hundred and thirty-four for tu ninety-two against the meas 
ure; but the first two were defeated, the vote on the Senate 
and veto power standing yeas forty-seven, nays one hun 
dred and eighty-two.( 3 ) 

( ) Vermont Constitutional Conventions, Vermont State Library ; 
Thompson s Vermont, Part II, p. 126. 

( 2 ) Journal of Council of Censors, Vermont State Library. 

( 3 ) Vermont Constitutional Conventions, Vermont State Lib 
rary ; Thompson s Vermont, Part II, pp. 125-127. 



The Council of Censors. 51 

The eighth Council of Censors met at Montpelier for 
two sessions, June 4-6, and October 15-24, 1834, and at 
Middlebury for the third session, January 7-16, 1835. It 
proposed nineteen amendments to the Constitution and 
called a Constitutional Convention. 

The Convention met at Montpelier January 6-14, 
1836, and adopted twelve of the amendments proposed bv 
the Censors. Among the most important were the meas 
ure providing a Senate to replace the Executive Council, 
as a second branch of the Legislature, apportioning the 
Senators among the counties according to their population, 
giving it sole power to try impeachments, vesting the exe 
cutive power in a governor and lieutenant-governor, pro 
hibiting the suspension of the writ of habeas corpus for any 
reason, and providing for the election of certain officials by 
counties and probate districts. ( ) There is a certain interest 
in considering the vote on the amendment providing for a 
Senate. The proposition was now for a fifth time before a 
Vermont Constitutional Convention. ( 2 ) Judge Chipman( 3 ) 
had addressed the Convention the first day of the session, and 
yet when this amendment was reached it was ratified by 
the slender majority of three, the yeas being one hundred 
and sixteen and the nays one hundred and thirteen. A 
motion to reconsider this vote was made and lost by a vote 
of one hundred and ten to one hundred and nineteen. ( 4 ) 
This action abolished the Executive Council and placed Ver 
mont on a plane with the other States in that her Legisla 
ture was now bi-cameral. 

The Censors had suggested the amendment in 1792, in 
1814, in 1820, and in 1827, and each time the Convention 
following the Censors had vetoed the measure. Perhaps 

( ) Journal of Council of Censors, Vermont State Library. 

( 2 ) Vermont Constitutional Conventions, Vermont State Lib 
rary. 

( 3 ) Judge Chipman s Address, Vermont State Library. 

( 4 ) Vermont Constitutional Conventions. 



52 The Council of Censors. 

there is no more striking illustration in Vermont s constitu 
tional history, to show how the radical or progressive ideas 
of the Censors were sent to the rear by the conservative 
constitutional conventions, than the time and persistency re 
quired to establish a Senate in place of the Executive Coun 
cil. It was adopted forty-four years after it was first 
proposed, and after it had been proposed and defeated four 
times. 

The Later Councils of Censors and Conventions, 
1842 \ 869. 

The ninth Q Council of Censors held three sessions : 
two in Montpelier and one in Burlington. They proposed 
seven amendments and called a Convention to meet in 
Montpelier in January, 1842. The amendments proposed 
failed of adoption, not one passing by the requisite vote of 
the convention. It may be interesting to note the nature of 
some of these as proposed by the Censors, viz : that the 
general State election be held the second Tuesday in Octo 
ber annually forever ; that the legislature meet on the first 
Thursday in June each year until by law some other day 
should be selected ; that the Senate be divided into classes, 
one-third retiring each year, the senatorial term being three 
years ; that sheriffs and high bailiffs be elected by the free 
men of the counties; that justices of the Supreme Court be 
elected for seven years, subject to removal by impeachment 
brought by a two-thirds vote of each branch of the legisla 
ture. The Council of Censors was unwilling to have the 
method of suggesting amendments to the Constitution trans 
ferred from the Council of Censors to the legislature. They 
proposed, however, to give the people the privilege of vot 
ing directly on amendments, either to adopt or reject. In 
this case each voter could register his opinion on the amend 
ments proposed. 

( ] ) Thompson s Vermont, Part II, pp. 125-127 ; Niles Kegister, 
Vol. 63, Nov. 19, 1842. 



The Council of Censors. 53 

The tenth Council met in 1848-9 and the constitutional 
convention which passed upon its work met in Montpelier, 
Jan. 2-14, 1850. It ratified amendments to the Constitu 
tion to the effect that the people should elect the assistant 
judges, sheriffs, high bailiffs and judges of probate ; that 
justices of the peace should be elected by the people, and 
that senators, to be eligible, should be at least thirty years 
old. 

The eleventh Council of Censors met at Montpelier in 
October 1855, and proposed a series of amendments, none 
of which were ratified. Some of these propositions were 
for biennial sessions of the legislature and two-year periods 
for State officers ; that the house of representatives be com 
posed of 150 members to be apportioned among the coun 
ties, each county to have at least two, the counties being 
divided into districts on an equitable basis ; that the Senate 
should be composed of four members from each county, the 
senatorial term to be four years, with the body divided into 
two classes, one-half retiring biennially ; that the judges of 
the Supreme Court be elected for six years, one-third retir 
ing each two years ; that a constitutional convention be 
composed of ninety delegates, apportioned among the coun 
ties, each having at least two, the rest being apportioned 
among the counties according to population. 

It seems strange that not one of these proposed amend 
ments was ratified. One may reasonably infer that the 
Councils of Censors were more nearly abreast of the times 
in governmental affairs, while the constitutional conven 
tions represented the conservatism of the State. 

In 1862 the twelfth Council of Censors was chosen. It 
met but proposed no amendments. At this time the Civil 
War was in progress, and the larger danger of disunion 
overshadowed any defects which might otherwise have been 
found in the commonwealth s fundamental law. 

The thirteenth and, as it proved, the final Council of 
Censors met in Montpelier, June 2, 1869. It was composed 



54 The Council of Censors. 

of thirteen members : Henry Lane, J. B. Hollister, William 
Harmon, Jasper Rand, H. Henry Powers, J. R. Cleveland, 
Nathaniel W. French, Charles C. Dewey, Charles K. Field, 
Timothy P. Redfield, Charles Reed, Joseph W. Colbnrn, 
and Jonathan Ross. The Censors met in the Senate Cham 
ber at Montpelier, June 2, 1869. They held three sessions : 
July 2-4, July 27 to August 6, and October 19-22. 

At the afternoon session of June 2, Mr. J. W. Colbnrn 
introduced a resolution that a committee of three should be 
appointed to consider a plan of changing the method of 
amending the Constitution " so as to refer to legislative 
action for propositions, and refer directly to the people for 
a tinal decision, as more appropriate and less expensive 
than the present system and more in accordance with repub 
lican ideas and democratic equality." On that committee 
were appointed Mr. Col burn, Mr. Lane, Mr. Powers. 
Saturday, July 31, Mr. Colbnrn for the minority of the 
committee begged leave to report in favor of abolishing the 
Council of Censors for reasons which in substance are as 
follows : 

There were good reasons for having the Council when 
it was adopted, but these reasons exist no longer. ( ) Then 
we had few r newspapers, few books, few schools. It was felt 
to be unsafe to entrust the amending of the Constitution 
directly to the people. We adopted the present system 
from Pennsylvania one used by no other State and dis 
carded by Pennsylvania after giving it a brief trial. Since 
1850 the people have taken little interest in amendments to 
the Constitution ; not one in ten seemed to understand the 
Constitution or how it was amended ; and a system so little 
understood should not exist longer. To-day the people are 
better educated, more capable of judging on constitutional 
matters ; hence it would be well, once in ten years, to sub 
mit to them the proposition whether the Constitution needs 

( ] ) Journal of Council of Censors, Montpelier, 1869. 



The Council of Censors. 55 

revision. When onr government was organized we had two 
great parties 1 Federal" and " Kepnblican." " The former 
took the ground that the people were not to be trusted with 
the powers of self-government; the latter contended that 
they were safe depositories of this power." ( ) The old 
Federal party has gone, hut the relic of Federalism remains 
in this antiquated custom of having a Council of Censors ; 
and this is left onlv because of the apathy of the people; 
for " the people know and care but little about the changes 
of their Constitution." Does some one argue that the Coun 
cil has other duties besides amending the Constitution ? 
They are to review legislation, but in the heat of the War of 
1812 they censured some acts of the legislature. " It undid 
nothing, it righted nothing." Its action came too late and 
was not effective. The people themselves remedied the 
evil legislation by failure to re-elect the members in ques 
tion, and this remedy is always with them and efficacious. 
The ballot-box and the Supreme Court are sufficient reme 
dies, let these be used. This machinery is cumbersome, 
antiquated and has been almost useless for three-fourths of 
a century. The Council of 1855 proposed amendments, but 
the Convention following in its wake voted them down ; 
but all this was expensive. Mischief is liable to be done in 
such ways. The small towns are guarded in their rights, 
each one having a unit of representation ; this they can not 
lose, for they will not yield it. A two-thirds vote of the 
Legislature once in ten years will correct any evils that may 
arise. The argument of " let well enough alone" is not 
germane to the question. We have improved implements 
in agriculture and mechanical lines, then why not improve 
governmental machinery ? For the old Executive Council 
we substituted the Senate in 1836 and from time to time we 
have made other changes. We want our people to know 
our Constitution, to take an interest in it. Other 

( ) Journal of 1800, p. 43. 



56 The Council of Censors. 

states succeed in this regard; shall Vermont be less 
progressist ? Some one complains that the expense will 
be burdensome with the Legislature " continually tam 
pering" with the business now and formerly done by 
the Censors ; and that its sessions will be spun out to too 
great length. But this is lame ; for it can be done only 
once in every decade. The session would never be delayed 
more than a week on this business, and the added expense 
is imaginary, since the Council meets once in seven years 
with the possibility of a constitutional convention to follow 
it, while the present plan is to suggest changes only once in 
ten years. Amendments proposed by one Legislature would 
lie over until the next Legislature in order that the news 
papers might lay them before the people. In this way the 
people can express their opinions more directly as to the 
fundamental law of the state. Give the people a chance 
to say whether or not they would like this plan. It is the 
duty of this Council to lay this before the people for their 
verdict. The minority of this committee feel that this 
action is demanded by the people. 

On the afternoon of Tuesday, August 3, Judge H. 
Henry Powers for the majority of the committee made a 
supplementary report to this effect. ( ) " Our Constitution 
was framed for the whole people." It does not govern 
municipalities but the people ; it should be controlled by 
the people, and the municipalities ought not to control it. 
The Council of Censors is elected by the people on a general 
ticket. ( a ) " Theoretically, then, the Council created by the 
people themselves more emphatically represents the popular 
voice than any other tribunal in our frame of government." 
Evidently this was the purpose of the framers of the Con 
stitution when they established the Council. It would have 
been better to submit amendments to a Convention repre 
senting the people not the towns ; but this was not the case. 

H Journal of 1869, p. 70. 
(-) Journal of 1869, p. 71. 



The Council of Censors. 57 

Delegates to Constitutional Conventions have been chosen 
by towns. A town with fifty voters can thus have a voice 
in determining the organic law of the state equal to that of 
Kutland with fifteen hundred or two thousand voters. ( ) 
This is not right or just. An amendment to change the 
method of calling Constitutional Conventions so as to repre 
sent the whole people would bring the people nearer to a 
direct participation in amending the Constitution, than the 
plan proposed by the minority report. As the Senate is 
now made up it represents the idea of municipality because 
each county, whatever its size, has one at least (the other 
sixteen being given to the larger counties on the basis of 
population) and the House represents the towns as corpora 
tions regardless of population ; and yet the minority of this 
committee recommend the placing of the initiative of 
amendment with the Legislature thus made, as being nearer 
the people. What matters it if other states have not employed 
it; or, if they have used it and then discarded it ? Vermont 
has other institutions not possessed by other states ; but 
this is no argument why she should discard them. " The 
very soul of an organic law of a constitution for a com 
monwealth, \* permanency " ( 2 ) The people demand a per 
manent law as a protection for their rights. 

On the ground of economy, a Council of Censors once in 
seven years, followed by a Constitutional Convention, would 
prove, he believed, every whit as economical as the method 
proposed by the minority. If the Legislature can propose 
amendments once in ten years " a large portion of their 
time will be spent in tinkering it." The Constitution will 
then be a target for repeated blows by the members of the 
Legislature ; and all this will be expensive. The people do 
not desire to confer upon the Legislature the other powers 
held by the Council of Censors, then why give up this one? 

( ] ) Journal of Censors, 1869, p. 71. 
C 2 ) Journal of Censors, 1869, p. 72. 



58 The Council of Censors. 

Several efforts have been made in the past to do away witli 
the Council of Censors, but they have not met with success, 
" and although in deference to the wishes of a portion of 
our people who call for this change we may be constrained 
to vote to submit the proposed amendment of the minority 
to a convention, still in justice to ourselves we are bound to 
express our views against the wisdom of such a change". ( r ) 

On October 22, 1869, the Council of Censors voted to 
present a series of proposed amendments to be acted on by 
a convention duly elected by the people, the substance of 
which was: (1) That the Council of Censors should be 
abolished, and that the Legislature should, once in ten years, 
have the right to initiate amendments to the Constitution ; 
(2) no special laws for corporations except for municipal 
purposes ; (3) State officers in all departments to be elected 
biennially; (4) senators and town representatives to be elect 
ed for two years; (5) judges of the Supreme Court to be ap 
pointed by the Governor, " by and with the advice and con 
sent of the Senate." The term of office of judges should be 
six years, and they should be divided into classes, the term of 
office of one-third expiring every two years. The salaries 
should not be diminished during the term of office. But if 
the above, relative to election of judges, should fail of 
ratification, then it was proposed, as a substitute, that they 
should be elected biennally and that their term of office 
should be two years ; (6) women to have no more restric 
tions than men in regard to voting. 

The Council of Censors, October 19, 1869, voted to 
call a Constitutional Convention to meet at Montpelier, Vt., 
the second Wednesday in June, 1870, " to consider certain 
amendments to the Constitution of this State proposed by 
the Council of Censors." 

The Convention met according to the call of the Cen 
sors and proceeded to consider the amendments proposed. 

C 1 ) Journal of 1869, p. 72. 



The Council of Censors. 59 

It is curious to note the spirit of the Convention as mani 
fested in the vote on the different articles. That suggest 
ing biennial sessions of the Legislature was carried by a 
majority of h ve votes out of a total of 233; that making 
the term of judges of the Supreme Court six years was 
defeated by a majority of two hundred and twenty-nine 
out of a total vote of two hundred and thirty-one, but two 
votes being cast in its favor. The amendment proposing 
woman suffrage received but one vote in its favor, while 
two hundred and thirty-three were cast against it. The 
article abolishing the Council of Censors and giving the 
power to the Legislature to take the initiative in amending 
the Constitution, and this once in ten years, was carried by 
a vote of one hundred and twenty-three in its favor and 
eighty-five against the measure, not a two-thirds vote. 

General Comment. 

At the February session of the Legislature, 1779, an 
act was passed declaring that the Constitution as estab 
lished by general convention at Windsor, in 1777, with the 
alterations made agreeably to Section 44 of the Constitution 
" shall be forever considered, held and maintained, as 
part of the laws of this State. "( ) 

A similar act was passed at Windsor at the June ses 
sion of 1782 " to prevent disputes respecting the legal ( ) 
force of the Constitution of this State" and( 3 ) again in 
1787. In these two acts the Constitution is treated as if it 
were a legislative act in point of quality. 

Judge Chipman in his Memoirs of Thomas Chitten- 
den(*) shows that the early people of Vermont, in common 
with many others, held that sovereignty was vested in the 

( ) Slade, State Papers, p. 288. 

( 2 ) Slade, State Papers, p. 449. 

( 8 ) Memoirs of Thomas Chittenden, p. 111. 

( 4 ) P. 102. 



60 The Council of Censors. 

Legislature, or in the people, but manifested in the action 
of the Legislature. From this it would follow that a Con 
stitution would stand only on an equal footing with acts of 
the Legislature. This view changed when the Constitu 
tion of the United States was adopted as the supreme law 
of the land. 

In a previous dissertation we have shown the origin 
of the Council of Censors, as having some features ana 
logous to the Greek ephors ; that it had some features 
like those of the Roman Censors, whence it took its 
name ; that it was a feature of Rousseau s Social Contract; 
that in the republics of France and Naples,* at one time, it 
was proposed seriously as the people s check on the usurpa 
tions of the various departments of government. The 
Radicals of Pennsylvania adopted it in the Constitution of 
that State in 1776, and discarded it in the Constitution of 
1790. In Pennsylvania only one Council of Censors was 
ever elected and this body by a majority vote favored sub 
mitting a proposition for amending the Constitution by 
abolishing this provision. A two-thirds vote was needed 
to carry this, hence it was never submitted as an amend 
ment. 

Vermont adopted this provision with the entire 
Pennsylvania Constitution, with certain minor changes, in 
1777. Fourteen times at intervals of seven years, Councils 
of Censors were elected, and nine Constitutional Conven 
tions were called to consider proposed amendments. Finally 
in 1870 it was abolished and the initiative for amending the 
Constitution was vested in the Legislature, the power to be 
active only once in ten years. Judge Chipman in his 
Memoirs of Thomas Chittenden ( ) says that the Vermont 
Council of Censors being elected on a general ticket, this 
threw the advantage into the hands of the dominant party, 
and that by this means the minority was not represented in 

( ) P. 129. 



The Council of Censors. 61 

the Council. The Censors, elected by a majority of the 
electors, would meet, consider the defects of the Constitu 
tion, and possibly suggest remedies ; in which case it would 
call a Constitutional Convention. These Conventions were, 
except in one instance, 185T, made of delegates, one from 
each town. As the recommendations of the Censors were 
placed before the people before the delegates to the Consti 
tutional Convention were elected, the minority party would 
succeed in sending, in most cases, a majority of delegates 
opposed to the provisions of the Censors. The Councils of 
Censors were, then, radical or progressive, while the Con 
ventions were conservative. 

From 1793 to 1836 only one amendment was ratified 
by a Constitutional Convention, and this denied the right of 
suffrage to all foreign-born citizens until they should be 
naturalized. In 1836, the amendment to make the legis 
lature bi-cameral passed by a majority of only three votes, 
one hundred and sixteen votes being cast in favor of the 
measure and one hundred and thirteen against. Success 
ive Councils of Censors had three times previously recom 
mended this change but it had always been rejected, 
although Vermont was the only state in the Union having 
a legislature of only one branch. 

The spirit of progress and conservatism in the Censors 
on the one hand and the Conventions on the other, is illus 
trated by the attempts made to lengthen the term of the 
supreme court judges. Five times was the effort made and 
five times the measure was defeated. This was begun in 
1814, was repeated in 1822, 1857 and 1870, when it 
received the crushing defeat of two votes for the measure, 
and two hundred and thirty-one votes against it. Thus 
have the people kept a strong grasp on the judiciary, 
calling upon the bench to give an account of its steward 
ship before the bar of each biennial Legislature. 

Perhaps the greatest controversy between the Censors 
and the Conventions occurred in connection with the recom- 



62 The Council of Censors. 

mendations of the Council of 1856. That body prepared 
a series of amendments, among them the provision for 
biennial sessions of the Legislature, with provision for two- 
year periods for State officials, and then issued a call for a 
Constitutional Convention of ninety members, apportioned 
among the counties, " in such manner as will, in our opin- 
iorijC) protect the just rights of all." The Address further 
stated, u And we submit to you whether the principle on 
which said Convention is based is not under existing insti 
tutions in accordance with your views of right, in matters 
relating to the fundamental and organic Laws of the State." 
The Convention of 1857 met and organized. A com 
mittee of one from each county was appointed to decide 
upon a course of action with reference to the proposed 
amendments, with Paul Dillingham as chairman. His 
report recited that the amendments were numerous and 
important, that they contemplated many and radical 
changes in our Constitution. The committee declined to 
give an opinion as to merits or demerits of the amendments. 
It regarded the plan of limiting the delegates to ninety, 
and apportioned as they were, as a startling innovation. 
The committee reviewed the framing and amending that 
had been done since 1777, and called attention to the state 
ment in the preamble of the instrument, that it should be 
permanent and unchanged, until it should be changed in a 
manner provided by the express terms of the instrument. 
The Convention expressed its views to the people in four 
resolutions to the effect (1) that the Censors had acted 
unwisely in thus calling a Convention ; (2) that in the 
absence of precise words, the practice and usage of many 
years had confirmed the purpose of the fathers to establish 
town representation in Conventions, which purpose it urged 
the next Legislature to confirm explicitly ; (3) that, because 
these delegates did not represent the towns, the} 7 were 

( } ) Address of Council of Censors, 1856, p. 108. 



The Council of Censors. 63 

chosen by their constituencies to reprobate the action of the 
Censors, not to give validity to their action ; and (4) that 
as this Convention was not duly constituted as prescribed 
by time-honored usage and custom it would take no further 
action. It adjourned and thus referred the points at issue 
to the judgment of the people. 

In these collisions between the progressive spirit of 
the able men who set on foot progressive movements in 
governmental matters, and the conservative spirit of the 
people in the Constitutional Conventions, one sees an exam 
ple of, the working of the referendum. The experience of 
Vermont has been repeated in Switzerland since 1874. Sir 
Henry Maine says, ( ) " Contrary to all expectations, to the 
bitter disappointment of the authors of the Referendum, 
laws of the highest importance, some of them openly 
framed for popularity, have been vetoed by the people after 
they had been adopted by the Federal or Cantonal Legis 
lature." 

The Convention of 1870 was made up of delegates 
from each town and, hence, was duly constituted. Its cau 
tious work is in evidence when one considers that the matter 
of biennial sessions of the legislature was carried by a major 
ity of only five votes out of two hundred and thirty-three ; 
that the proposition granting the right of suffrage to women 
received only one vote in its favor to two hundred and 
thirty-three in opposition ; and that the Council of Censors 
was abolished and the method of taking the initiative in 
amending the Constitution was lodged in the Legislature by 
a majority of only thirty-eight out of a vote of two hun 
dred and eight. 

( ! ) Popular Government, pp. 96-7. 



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