Biographical and genealogical history of the state of Delaware, Vol. I, Part 12

Author: Runk, J.M. & Co
Publication date: 1899
Publisher: Chambersburg, Pa.
Number of Pages: 1482

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of New Amstel (now New Castle), by the Dutch, the courts were held within the fort there; as they were for many years afterwards under the English rule. Under the Duke of York's government provision was made for holding the courts monthly at New Castle and quarterly at Upland (now Chester), and Whorekill (now Sussex). The Upland court had jurisdiction of the settlers on both sides of the Christina Creek until December 3, 1678, when Stony Creek, now Quarryville Creek, was made its limit, and afterwards, March 14, 1681, Naaman's Creek, until the twelve-mile circle was defined in 1701. The New Castle court's jurisdiction extended to Duck Creek, and prior to 1680 undoubtedly included the teritory on the New Jersey side of the Delaware River as far as Salem, which was then known as the "Eastern Shore." The Whorekill court, from the time of its reorganization in 1673, held jurisdiction with- in the region now known as Sussex and Kent counties until 1680, when St. Jones' Court was established for the newly formed county of that name. In 1682 the counties of Whore- kill and St. Jones were changed by Penn to the present names of Sussex and Kent re- spectively.

The courts of Whorekill or Sussex, from the time of its earliest permanent settlement as a Dutch trading post in 1658, were first held in the fort, next in the residence of one of the justices, and later in a suitable tavern room, until a court house was finally built at Lewes about 1745-50. In 1792 a new court house was built in Georgetown, to which place the county seat was then removed, and wherein it has since remained.

The court for St. Jones, afterwards Kent county, was first held in the house of Edward Pack, one of the justices, at Towne Point, on property near the month of Jones Creek, sub- segmently owned by John Dickinson of Revo- lutionary note and now held by his descendant, A. Sydney Logan, Esq. About 1690 it was transferred to the tavern of James Maxwell, on the site of the present Dover water works, and later to the court house built about 1697, on the site of the present court house fronting on the public square in Dover.

Abont 1722 the court house was removed to the site of the present State House. There a new court house was built about 1788, its ground floor being occupied by the Legisla-

STATE OF DELAWARE

ture until 1873, when it was purchased and re- modeled by the State, exclusively for a State C'apitol, and a new court house was erected on the site formerly occupied by that of 1697.

The New Castle court seems to have been held continuously within its forts, or their protecting walls, from its occupation by the Dutch to the arrival of William Penn in 1682. It is supposed that the oldest portion, being the east wing, was in existence in Penn's time. A recent careful investigator writes: "The provincial courts, which were then presided over by William Penn, were often held in the court house at New Castle. It is probable that the main part of the old court house, some- times called the State House, was built about 1704, as the courts and the General Assembly of the Province held their sessions at New Cas- tle, the latter with few exceptions from May 24, 1704, to 1779, when it was removed to Dover." Elsewhere the same writer remarks that the act making Dover the capital of the State was passed on May 12, 1777, but that, owing to the interruptions incident to the war of the Revolution, the legislative sessions were held at Dover, Lewes, or New Castle, as cir- cumstances required. Finally, a century after it ceased to be the colonial and state capital, the ancient town ceased also to be the county seat, for by act of the General Assembly, after many years of agitation, this well-worn honor was transferred to Wilmington, and the county records were removed to the handsome and commodious court house in that city on Jan- mary 20, 1881.

Upon his first arrival, in 1682, Penn inau- gurated his government under a charter and code of laws, which assured the convenient and impartial administration of justice, trial by jury, indictment by grand jury, and the rights of the people to participate, through their chosen representatives, in the enactment of the laws designed for their government. At his coming he found in operation the tri- bunals of justice already established and the modes of procedure to which the people had become accustomed. With his usual wisdom and tact he made no sudden changes likely to arouse prejudice against his contemplated im- provements. Under the proprietary govern- ment of William Penn and his successors, how- ever, the administration of justice in Delaware was gradually developed and systematized by

appropriate legislation, as time and circum- stances demanded.

Prior to 1726 various judicial tribunals had already been organized. Prominent among these were the county courts of the Common Pleas, the county courts of General Quarter Sessions of the Peace, and a Provincial Court. In addition to their ordinary powers, equity jurisdiction was vested in the county courts of Common Pleas, with the authority to hold Orphans' Courts in the county Courts of Gen- eral Quarter Sessions of the Peace. The Pro- vincial Court was created in 1684, and con- sisted of five judges. This court originally sat in Philadelphia, and two of its judges were required to sit twice a year in the other counties. It was a Supreme Appellate Court, but also had original jurisdiction of all capital crimes, as well as of other matters not triable by the county courts. This was the earliest Supreme Court, strictly speaking, which ex- ercised jurisdiction within the present borders of Delaware.

By a statute enacted during Lieutenant Goy- ernor Gordon's administration, (1726-36), a more efficient judicial system was established within and exclusively for the three counties of Delaware. Under the system, as improved by the act of 1760, the judicial power was mainly distributed among the respective jus- tices of the following courts: The County Court of General Quarter Sessions of the Peace and Jail Delivery, the County Court of Common Pleas, and the Supreme Court of the counties of New Castle, Kent and Sussex upon Delaware. The two first named, respectively, were to consist of at least three of the justices in each county. The said justices of the Court of General Sessions, &e., were empowered to try all criminal cases, not capital, and also to hold the Orphans' Court in their respective counties. The justices of the Court of Com- mon Pleas were to have jurisdiction of civa causes, and also to hold a Court of Equity with- in their respective counties. The proceedings in equity were to be by bill and answer, and in all other respects, as near as might be, ac- cording to the rules and practice of the High Court of Chancery in Great Britain.

But the chief feature of this newl'y or- ganized system was the Supreme Court. It was composed of three, and subsequently, by the statute of 1760, of four judges commis-

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BIOGRAPHIICAL ENCYCLOPEDIA

sioned by the governor, one of whom was to be styled chief justice; this court was to be held twice every year in each county. Said judges, or any two of them, were empowered to hold the court and to hear and determine all causes removed or brought there by certiorari, writs of error, appeal, or other remedial writs, from the respective General Quarter Sessions of the Peace and County Courts of Common Pleas, or from any other court of law or equity with- in the said three counties, and also to examine, correct, and punish the contempts, defaults, corruptions, de., of the justices of the peace, sheriffs, and other officers within said counties, and generally to exercise their jurisdiction and powers according to law and equity, as fully as the judges of the King's Beuch and Com- mon Pleas at Westminister or the Chancellor of England might do; with the right of appeal, however, from any final sentence, judgment, or decree of said Supreme Court to the King in Council, or to such tribunal in England as might be appointed to hear such appeals. The judges of this court, or any two of them, were also empowered to try all capital offences.

From this Supreme Court there was no ap- peal to any other tribunal within the three counties, or under the proprietary govern- ment. The sole resort from it was to the King in Council, or other appointed tribunal in Eng- land. From every Supreme Court since es- tablished there has been a further resort to a higher court within the state; so that this par- ticular one, with its special characteristics and powers, appears to have been the most dis- tinetive form of Supreme Court which Dela- ware has possessed.

The judicial system of 1726-36, with but few modifications, continued in operation un- til, by the Revolution, the Delaware counties ceased to be a colony of Great Britain and became an independent state under the con- stitution of government ordained by their deputies in convention, September 20, 1776.

This convention marks the most momentous epoch in the history of Delaware-the birth of a free and sovereign state amid the throes of revolution. In response to the recommen- dation of the Continental Congress, it assom- bled in New Castle, August 27, 1776, and in twenty-six days completed its work by dis- solving all connection with the British Crown and adopting an independent frame of govern-

ment. Among its members were the foremost men of their day-George Reed, their presi- dent; Nicholas Van Dyke, Richard Bassett, Dr. Charles Ridgely, Jacob Moore, and Tho- mas MeKean.

George Read, during his notable career, was an accomplished lawyer, delegate from Delaware in the Continental Congress, signer of the Declaration of Independence and of the Federal Constitution, United States Senator, and Chief Justice of the Supreme Court of Delaware under the Constitution of 1792.

Nicholas Van Dyke was of Dutch descent, a resident of New Castle, a lawyer of emi- nence, member of the Continental Congress, signer of the Articles of Confederation, and president of the Delaware State. He was the father of Nicholas Van Dyke, Jr., an able and eloquent lawyer, a United States Senator, and the maternal grandfather of the esteemed and lamented Victor DuPont.

Richard Bassett was a very prominent law- yer and citizen of Delaware, member of the State Constitutional Conventions of 1776 and 1792, signer of the Federal Constitution, United States Senator, Chief Justice of the Court of Common Pleas, (1793-99), governor of Delaware, and United States circuit judge. His daughter was the wife of James A. Bay- ard, Sr., grandfather of Thomas F. Bayard, late Ambassador to Great Britain.

Dr. Charles Ridgely was a cultured and ex- perienced physician in Kent county, son of Nicholas Ridgely and Mary Vining, widow of Benjamin Vining of New Jersey, and the father of Nicholas Ridgely, one of the most distinguished chancellors of Delaware, and also of Henry M. Ridgely, who represented the state with distinction as a member of Con- gress, and United States Senator.

Jacob Moore was a resident of Sussex coun- ty and attorney general under the proprietary goverment from 1774 to 1776.

But above all these gifted and patriotic framers of our first State Constitution towered Thomas MeKean as a born leader of men and a bold, energetic and unwavering champion of the cause of independence. Although not a native of Delaware, he, nevertheless, by his intrepid patriotism, tireless activity and mas- terful personality, not only incited her sons to heroic action, but by his own deeds, as her representative, made Delaware illustrious and

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her fame imperishable. By sending post haste to Dover for Rodney, when the Delaware dele- gates in the Continental Congress were divid- ed on the vote for independence, he both proved her patriotism and made Rodney famous.

The Constitution of 1776 was framed amid the turmoil of revolution and in the hurry of preparation for impending war. As it was the offspring of an exigeney, it proved valuable only as a provisional arrangement of govern- mental powers. Consequently a convention for its revision was held in 1792, which estab- lished a more elaborate judicial system than had previously existed.

This convention, like its predecessor, com- prised among its leaders some of the most dis- tinguished men of the time-John Dickinson and Kensey Johns, Sr., of New Castle county, and Richard Bassett and Nicholas Ridgely of Kent. John Dickinson was born in Maryland, reared in Kent county, Delaware, read law in Philadelphia and at the Temple in London, practiced law in Philadelphia, and died in Wihnington.

It is notable that of the five most distin- guished public men of Delaware during the revolutionary era-MeKean, Dickinson, Read, Bassett, and Rodney-the last named was the only native of this state, which cach one served so patriotically and so honorably. MeKean was born in Pennsylvania, and Dick- inson, Read, and Bassett in Maryland.

Like MeKean, Dickinson was honored with high and responsible positions by both Penn- sylvania and Delaware. He was an eminent political writer, and unquestionably one of the most conspicuousleaders of his day. He served Delaware as her delegate in the congress in 1776-77 and 1779-80; as president of the State in 1782; as a signer of the Articles of Con- federation and also of the Federal Constitu- tion, as well as a member of her constitutional convention of 1792.

Kensey Johns, Sr., was also born in Mary- land, read and practiced law in the town of New Castle, and became Chief Justice of the Supreme Court, and subsequently chancellor under the Constitution of 1792.

Nicholas Ridgely was born at Dover, Dela- ware. Upon the resignation of Chancellor William Killen in 1801, he was appointed in his stead and filled the office for thirty years.

He is justly regarded as the father of Chan- cery jurisprudence in Delaware. William Kil- len, whom he succeeded as chancellor, was the first and only chief justice for the State under the Constitution of 1776, as well as the first chancellor under that of 1792. It is quite sig- nificant, to discover that a motion was made in the convention of 1792, by Kensey Johns and seconded by Mr. Bassett, that the chief justice of said Supreme Court should be "a person of some legal knowledge;" and that it was defeated by a vote of fifteen nays to five veas-John Dickinson and Nicholas Ridgely being among the nays. Against his wishes, owing to the inadequate compensation, Mr. Read was selected for the office, especially be- cause of his recognized preeminent legal quali- fications for the successful discharge of its duties. This reason really led, it is said, to the creation by the convention of 1792 of the sepa- rate court of chancery. For Mr. Killen, then chief justice under the Constitution of 1776, was seventy years of age. The duties of the chief justice, owing to the controversies aris- ing out of the Revolutionary war and other causes, were then very arduous, and a more vigorous occupant of the office was required. Accordingly, said convention created the office of chancellor and made him also president of the Appellate Court, so that Mr. Read might be appointed Chief Justice of the Supreme Court and Chief Justice Killen appointed chancellor, with due deference to his age and long service on the bench.

The Constitution of 1792 wrought very ra- dical changes in the apportionment of judicial powers. Original jurisdiction of civil suits, concurrent with the Court of Common Pleas, was given to the Supreme Court-a power not formerly possessed by it. It was also made the tribunal of last resort from the Orphans' Court, and the Register's Court. Said Su- preme Court was to consist of not fewer than three nor more than four judges, one of them to be chief justice; and a judge must reside in each county. Any two might be a quorum. The Court of Common Pleas was similarly constituted. The jurisdiction of each of said courts was to extend over the State.

This constitution also, for the first time in the history of Delaware, divorced equity from the law courts and created a separate chancery jurisdiction, to be exercised solely by the chan-

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BIOGRAPHICAL ENCYCLOPEDIA

cellor. But while it deprived the Court of Connon Pleas of its equity powers, it at the same time increased the dignity and import- ance of its justices by making them State in- stead of inere county judges.

A High Court of Errors and Appeals was also created in lieu of the preceding Court of Appeals and given exclusive jurisdiction of writs of error to the Court of Common Pleas as well as to the Supreme Court, and of ap- peals from the chancellor.

A judicial system which supplied two co- ordinate courts of civil jurisdiction, comprising nine State judges, inclusive of two chief jus- tices and a chancellor, was necessarily cumber- some and disproportionate to the limited area and population of such a state as Delaware. Doubtless the prevailing feeling in regard to it was somewhat akin to that once expressed by a disappointed suitor respecting the Court of Errors and Appeals of New Jersey, which then consisted of sixteen members-that it "was too big for a jury and not big enough for a mass meeting."

Therefore a third convention, called chiefly for its reorganization, was held in 1831, which framed another constitution and established the courts on a new basis. Conspicuous among the members of that convention were the IIon. John M. Clayton, Judge Willard ITall, of the United States District Court for Delaware; James Rogers, Esq., an attorney general of the state; George Read, Esq., grandson of George Read, the signer; Judge Dingle, of Sussex county, grandfather of Edward D. Hearn, Esq., a member of the next constitu- tional convention; Presley Spruance, of Kent county, formerly United States senator, the father of William C. Spruance, Esq.

The Constitution framed by the Convention of 1853 was not adopted, and the judiciary was operated under the Constitution of 1831 until the Constitution of 1897 was passed, a period of sixty-six years.

By the Constitution, adopted June 4, 1897, the judicial power of the State is vested in a Supreme Court, a Superior Court, a Court of Chancery and Orphans' Court, a Court of Oyer and Terminer, a Court of General Sessions, a Register's Court, and Justices of the Peace. There are, therefore, six state judges, as follows: One chief justice, one chancellor, and four associates. All are appointed by the

governor, confirmed by the Senate, and serve twelve years, or during good behavior, and re- ceive a salary of $3,000 per annum. By the present Constitution the number of State judges was reduced from nine to six.

The status of the respective courts may be summarized as follows:

The Superior Court has jurisdiction of all causes of a civil nature-real, personal and mixed, at common law, and in all others the jurisdiction and powers vested by the laws of the state in the Superior Court.

The Court of General Sessions has all the jurisdiction and power vested by the laws of the state in the Court of General Sessions of the Peace and Jail Delivery.

The Court of Chancery has all the jurisdic- tion and power vested in such a court.

The Supreme Court has jurisdiction :

1. To issue writs of error to the Superior Court and to determine finally all matters in error in the judgments and proceedings of said Superior Court.

2. To issue upon application of the accused after conviction and sentence, writs of error to the Court of Oyer and Terminer and the Court of General Sessions in all cases in which the sentence shall be death, imprisonment exceed- ing one month, or fine exceeding one hundred dollars, and in all other cases as shall be pro- vided by law; and to determine finally all mat- ters in error in the judgment and proceedings of said Court of Oyer and Terminer and Court of General Quarter Sessions in such cases; provided, however, that there shall be no writ of error to the Court of General Sessions in cases of prosecution under Section 8, Article 5 of the Constitution.

3. To receive appeals from the court of General Sessions in cases of prosecution under Section 8, of Article 5, and to determine final- ly all matters of appeal in such cases.

4. To receive appeals from the Court of Chancery and to determine finally all matters of appeal in the interlocutory or final decrees and proceedings in Chancery.

5. To issue writs of prohibition, certiorari and mandamus to the Superior Court, the Court of Over and Terminer, the Court of General Sessions, the Court of Chancery and the Orphans' Court, or any of the judges of the said courts, and all orders, rules and pro- cesses proper to give effect to the same. The

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STATE OF DELAWARE

General Assembly shall have power to provide by law of what judges the Supreme Court shall consist for the purpose of this paragraph, and in what manner, and by what judges of the Superior Court the jurisdiction and power hereby confirmed may be exercised in vaca- tion.

The courts of Delaware, both of law and equity, have in most respects, doubtless, in their organization and proceedings, and espe- cially in matters of pleading, practice, and evi- dence, adhered more closely to the old Eng- lish precedents than those of any of her sister states.

Since 1776 every chief justice of the state, excepting the HIon. James Booth, Sr., and since 1792 every chancellor, has been selected . from the bar. Prior to 1831 very few of the associate judges were lawyers. Since that date all of them but the Hon. David Hazzard have been such.

The following have been members of the Delaware judiciary under the colonial and state government, classified as follows: Chief justices of the three Delaware counties under the colonial government:

Namnes. Appointed.

Jasper Yeates, December 5, 1707

John Healey, . April 11, 1710

Richard Birmingham, . March 10, 1714

Jasper Yeates, August 1, 1717

Col. John French, . July 25, 1720

David Evans, . April 20, 1727

Dr. Samuel Chew, 1741 William Till, 1743

Ryves Holt, October 26, 1745

John Vining, October 30, 1764

Richard Mc Williams, October 30, 1773

Chief Justice of Delaware under the Consti- tution of 1776:

Appointed.

William Killen, June 6, 1777

Chief Justices of the Supreme Court under the Constitution of 1792:

Appointed.

George Read, September 30, 1793 Kensey Johns, Sr., January 3, 1799

Samuel M. Harrington, ... . October 16, 1830 Chief Justices of the Court of Common Pleas under the Constitution of 1792:

Appointed.

Richard Bassett, September 6, 1793

James Booth, Sr., January 28, 1799

Thomas Clayton, February 8, 1829

Chief Justices of Delaware under the C'on- stitution of 1831:

Thomas Clayton, January 18, 1832

John M. Clayton, .. . January 16,1837 Richard II. Bayard, . September 19, 1839

James Booth, Jr., March 12, 1841

Samuel M. Harrington, April 3, 1855

Edward W. Gilpin, May 6, 1857

Joseph P. Comegys, May 18, 1876

Alfred P. Robinson, January 26, 1893

Charles B. Lore, March 21, 1893

Chief Justice of Delaware under the Con- stitution of 1897.

Charles B. Lore, re-appointed, June 12, 1897 Associate Judges of Delaware under the Constitution of 1831:

Appointed.

James R. Black, . January 18, 1832

Sammel M. Harrington, January 18, 1832

Peter Robinson,

January 18, 1832

Caleb S. Layton,

.June 3, 1836

John J. Milligan, September 19, 1839

David Ilazzard, . December 10, 1844

Associate Judges of Delaware under the Constitution of 1897.

William C. Spruance, . . June 11, 1897

Ignatius C. Grubb, re-app'ted, June 12, 1897 James Pennewill, June 14, 1897

William H. Boyce,

June 17, 1897

Edward Wootten,

September 6, 1847

John W. Houston, . May 4, 1845 Leonard E. Wales, September 2, 1864

William G. Whiteley, March 31, 1884

Ignatius C. Grubb, . May 25, 1886

John H. Paynter, March 25, 1887

Charles M. Cullen, August 28, 1890

David T. Marvel, February 1, 1893

Chancellors of Delaware under the Consti- tution of 1792:

Appointed.

William Killen, . October 6, 1793

Nicholas Ridgely, December 6, 1801 Kensey Johns, Sr., .June 21, 1830

Chancellors of Delaware under the Cousti- tution of 1831:

Appointed.

Kensey Johns, Jr., January 18, 1832 Samuel M. Harrington, .. . . . . May 4, 1857 Daniel Moore Bates, . December 12, 1865 Willard Saulsbury, November 14, 1873 James L. Wolcott, . May 5, 1892

John R. Nicholson, September 5, 1895

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Chancellor of Delaware under the Consti- tution of 1897:

John R. Nicholson, re-app'ted, June 10, 1897 Law Reporters:

Samuel M. Harrington, 1832-1855

John W. Houston, 1855-1893

David T. Marvel,

1893

Chancery reporters:

Appointed.

Daniel M. Bates, 1814-1873

Willard Saulsbury, 1873-1892

James L. Wolcott, .1892-1895

John R. Nicholson, 1895

It may be interesting to the general reader, as well as convenient for reference, to give briefly something of the history of the deceas- ed chief justices and chancellors of Dela- ware. In doing this we acknowledge our in- debtedness to Judge Grubb, who, in his ad- mirable historical paper, has placed the facts before us.

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Biographical and genealogical history of the state of Delaware, Vol. I, Part 12

Author: Runk, J.M. & Co Publication date: 1899 Publisher: Chambersburg, Pa. Number of Pages: 1482

Author: Runk, J.M. & Co
Publication date: 1899
Publisher: Chambersburg, Pa.
Number of Pages: 1482