In 1776 a Constitutional Convention met in Philadelphia and framed a constitution for Pennsylvania which contained the following provision for its change or amendment:1 "Sect. 47. In order that the freedom of the commonwealth may be preserved inviolate forever, there shall be chosen by ballot by the freemen 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 November 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 government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are intitled to by the constitution: They are also to enquire whether the 1 Poore, "Charters and Constitutions," Vol. II. p. 1548. public taxes have been justly laid and collected in all parts of this commonwealth, in what manner the public monies have been disposed of, and whether the laws have been duly executed. 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 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 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 expressed, 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 consideration of the people, that they may have an opportunity of instructing their delegates on the subject." 1 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 Commonwealth or State of Pennsylvania, but it recognized no separate body invested with supreme judicial power. This so-called Council of Censors constituted the recognized 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 councillors; 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 1 "The Proceedings relative to calling the Conventions of 1776 and 1790, the Minutes of the Convention . . . and of the Council of Censors," Harrisburg, 1825. 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 instance 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 excellencies might be imitated and their errors and weaknesses avoided. This hypothesis seems the more reasonable when one considers that the models of Greece and Rome, 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.' 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 1 Kennett's "Roman 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." |