USA > Delaware > Historical and biographical encyclopaedia of Delaware. V 1 > Part 13
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The Executive power was vested in a Gov- ernor, who, instead of being chosen by the General Assembly, was ordained to be elected by the citizens and to hold his office for three years.
The Privy Council was abolished and the name of the Government changed to "The State of Delaware."
The judicial power was vested in a Court of Chancery, a Supreme Court, and Courts of Oyer and Terminer and General Jail Delivery -a Court of Common Pleas-an Orphans' Court -a Court of Quarter Sessions of the Peace for each County-in Justices of the Peace and in such other Courts as the Legis- lature, two-thirds of all the members of each branch concurring, might establish.
Under a general provision the appointment of the Judges was given to the Governor.
So far as the distribution of judicial powers was concerned, the most material change, worked by this Constitution, was that the equity jurisdiction, which had theretofore been mainly originally exercised by the Judges of the Court of Common Pleas, was separated from the Common Law Courts and vested in a Chancellor, who, it was ordained, should hold Courts of Chancery in the several Counties, but in any case where the Chancellor was in- terested, cognizance thereof was left in the Court of Common Pleas.
The Supreme Court was made to consist of not fewer than three nor more than four Judges, who, by virtue of their offices, should be Justices of Oyer and Terminer and General Jail Delivery in the several Counties.
The Court of Common Pleas was composed of the same number.
Suits could originate in either. One of the Judges of each Court was styled Chief Justice, and of each Court one Judge was required to reside in each County. The jurisdiction of each extended over the State and any two of the Judges could act as if all were present.
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HISTORY OF DELAWARE.
Thu .Orphans' Court was composed of the Judges of the Court of Common Pleas, with power in any two to act, and was invested with the equity jurisdiction theretofore exercised by the Orphans' Court, except in adjusting and set- ling the accounts of executors, administrators and guardians. Appeals were allowed from this Court, in any case where it had original juris- diction, to the Supreme Court, whose decision was declared to be final. By an amendment to this Constitution, ratified February 5th, 1802, it was ordained that the Chancellor should compose the Orphans' Court in each County.
The Registers' Courts were to be held by the Registers, respectively, in the several Counties, and in these was vested the probate of wills and granting letters of administration, and the settlement of the accounts of executors, administrators and guardians. In case of a cause litigated, an appeal was allowed to the Supreme Court and in case of accounts, to the Orphans' Court. When the Register was interested the original cognizance was in the Orphans' Court, with an appeal to the Supreme Court.
A Court was also ordained, styled " The High Court of Errors and Appeals," which consisted of the Chancellor and of the Judges of the Supreme Court and Court of Common Pleas, with power in any four to proceed to business, but if any of them had rendered judgment or passed a decree, in any case be- fore its removal into that Court, he should not sit, but might assign the reasons upon which the judgment or decree was founded.
This Court had power to issue writs of error to the Supreme Court and Court of Common Pleas, and to receive and determine appeals from interlocutory or final orders or decrees of the Chancellor or of the Court of Common Pleas exercising equity jurisdiction.
The third Constitution was ordained on the 2d day of December, 1831. By this Instru- ment the judicial power was vested in a Court of Errors and Appeals-a Superior Court-a Court of Chancery-an Orphans' Court-a Court of Oyer and Terminer-a Court of Gen- eral Sessions of the Peace and Jail Delivery- a Register's Court-Justices of the Peace and such other Courts as the General Assembly, with the concurrence of two-thirds of all the members of both houses, should from time to time establish.
To compose these Courts of superior juris- diction it was ordained that there should be five Judges.
The Chancellor holds the Court of Chan- cery and the jurisdiction includes the full power to hear and determine all matters and causes in Equity and, when the Chancellor is interested, the Chief Justice sitting in the Su- perior Court without the Associate Judges, has jurisdiction, with an appeal to the Court of Errors and Appeals which, in such case, consists of the three Associate Judges, the Senior Associate presiding.
The Supreme Court and Courts of Common Pleas were abolished and the Superior Court instituted instead, with the jurisdiction fomerly vested in those Courts. To constitute this. Court four judges were provided, of whom one is styled Chief Justice, who may reside in any part of the State and who sits in all the Counties. The other three are called Asso- ciate Judges, one of whom must reside in each County, and no Associate can sit in the County in which he resides. Two of the Judges Con- stitute a quorum, and in the absence of the Chief Justice, the Senior Associate, capable of sitting in the county, presides.
The Court of General Sessions of the Peace and Fail Delivery is composed in each county of the same Judges and in the same manner as the Superior Court. Its jurisdiction and powers are those theretofore vested in the Court of General Quarter Sessions of the Peace and Jail Delivery.
The Court of Oyer and Terminer consists of all the Judges except the Chancellor. Three constitute a quorum. The jurisdiction is the same as was vested in the Court of Oyer and Terminer and General Jail Delivery, being the trial of offenses capital in their nature, and of the crime of manslaughter and of being ac- complice or accessory to such offense. This Court has no regular terms but is held upon a precept issued by the Judges.
The Orphans' Court in each County is held by the Chancellor and the Associate Judge residing in the County. The Chancellor pre- sides. Either may hold the Court. When they concur there is no appeal from their decision, ex- cept in the matter of real estate, but upon such matter,.or when a decision is made by one of them, there is an appeal to the Superior Court for the County whose determination is final.
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HISTORY OF DELAWARE.
The jurisdiction is the same as was formerly vested in the Orphians' Court.
The Register's Court remains the same as under the preceding constitution except that the appeal is to the Superior Court instead of the Supreme Court as therein provided.
The Court of Errors and Appeals has juris- diction to issue writs of error to the Superior Court and to receive appeals from Chancery, and to determine such matters finally. Upon a writ of error to the Superior Court, this Court must be composed of three Judges at least, that is to say, the Chancellor, who presides ; the associate Judge who did not sit in the Court below on account of his residence, and one of the Judges who did sit in the cause, originally. This Judge is indicated by a scheme contained in the Constitution. In case any Judge entitled to sit in the cause below did not there sit, such Judge is required to sit in the Court of Errors; and if any Judge who did sit below, and whose turn it is to sit in the Court of Errors be absent or disquali- fied, then either ot the other Judges who sat | his own County, although, together with the below may sit.
Upon an appeal from Chancery, the Court of Errors and Appeals consists of the Chief Justice and three Associates.
By this Constitution it is further provided that whenever the Superior Court shall consid- er that any question of law ought to be heard before all the Judges, power is given, upon the application of either party, to direct it to be heard in the Court of Errors and Appeals. In such case the Chancellor and four Judges compose the Court and any four of them form a quorum.
In any case where there is legal exception to the Chancellor or any Judge, the Governor is authorized to commission a Judge ad litem, provided such appointment is necessary to constitute a quorum in either Court.
The General Assembly is empowered to give to inferior Courts, or to one or more Jus- tices of the Peace, jurisdiction over nuisances and other minor offenses, specially enumerat- ed, and to provide the mode of proceeding by indictment or information, and that the trial might be with or without petit jury, and to grant or deny the privilege of appeal.
The chief defect of this system is the con- struction of the Court of Errors and Appeals, when sitting in causes removed by writ of
error from the Superior Court. Each of these Courts consists of three Judges, practically, and except in the case of a Judge who, being entitled, did not sit below, the Court of Errors and Appeals, upon the hearing of the cause, is composed of the Chancellor, the Associate Judge residing in the County where the origi- nal trial was had, and one of the Judges who sat in the case. If the Judges below were unanimous, and upon the hearing on the writ of error, the Judge whose turn it be to sit in the Court above maintain his opinion, then, in case of the reversal of the judgment below, the undesirable result is produced that the question of law receives final adju- dication by a minority of the Judges against the opinion of the majority.
It will also be observed that on the hearing of cases in error, the Judge residing in the County where the question was originally determined, is one of the Judges ordained to sit in the Court above, while he is expressly inhibited from sitting in the Superior Court of Chancellor, he forms the Orphans' Court, hav- ing jurisdiction of matters of equal importance, and, in practice, is almost exclusively en- trusted with their consideration and decision. To remedy these evils the Convention which sat in 1853 ordained that the Superior Court should consist in each County of the Chief Justice and the resident Judge of the County, with power in either to hold the Court alone, in case of the absence or interest of the other, and also provided that when they differed in opinion, the point should be cer- tified to the Court in Banc for final decision, but in the meantime the cause to be proceeded with as should be best for expediting justice. It was further ordained that upon a writ of Error to the Superior Court, the Court of Errors and Appeals should consist of the Chan- cellor and all the Judges who did not sit in the Court below; and that, upon the hearing of questions certified because of disagreement, the Chancellor and all the four Law Judges should form the Court.
The Instrument containing this scheme was submitted to the people for ratification, but was rejected without reference to the propriety of the proposed alteration in the Judicial System.
July, 1882.
15
FREE SCHOOLS OF DELAWARE,
BY J. H. GROVES,
State Superintendent of Free Schools of Delaware.
N historian writes : "Of all the early settlers in America, none were more cheerful, intelligent and virtuous than the Swedes." The fact that Delaware was settled by the Swedes, or at least that the early settlement was made by this people, will, in the absence of sufficient data, confirm a be- lief that the subject of education was primarily one of the greatest importance during the early days of our colony. To be sure the opportunities afforded to the colonists for general education at that time were limited, but in New England and Pennsylvania ( Delaware being the three lower counties of Pennsylvania) every village furnished facilities for the acquirement of knowledge. Private schools were established, and tutors were employed in many families. "Many men-Scottish reformers, Irish liberals and French patriots-despising the bigotry and intolerance of their countrymen, fled for refuge to the New World, and there by the banks of the Housatonic, the Hudson, the Delaware, the Potomac, the Ashley and the Savannah taught the lore of books and the lesson of liberty to the rugged boys of the American wilderness."
The following extract is taken from the Colonial Record :
"Petition to Council held at Phila., ye 26th of ye 10th month, 1683, Wm. Penn, Propor & Govr: The Govr and Provll Council having taken into their serious consideration the great Necessity there is of a School Master for ye
instruction and Sober education of youth in the towne of Philadelphia, sent for Enoch Flower, an Inhabitant of said towne, who for twenty ycar past hath been Exercised in that care and Imployment in England, to whom having communicated their Minds, he Embraced it upon the following Terms : to Learne to read English 4s by ye Quarter ; to Learne to read and write, 6s by ye Quarter ; to Learn to read, write and Cast accot, 8s by ye Quarter ; for boarding a Scholler, that is to say, dyet, Washing, Lodging, & Schooling, ten pounds for one whole year."
From the time the lower counties on the Delaware became a separate colony, 1703, until the year 1792, the record contains but little in regard to the subject either of private or public education. That men were educated during these years, no one can doubt. Enough is known to justify the statement that Dela- ware not only had brave men in those trying years of gloom and want, of hope and sadness; but educated men, who were honored by seats in the councils of the young nation. George Read, Cæsar Rodney and Thomas Mc Kean did not ignorantly append their sig- natures to that great scroll, that hangs in the innermost courts of this great nation's temple, but they deliberately wrote their names, actua- ted by cultured thought, and knowing full well the responsibility of such an act.
The intelligence of Delaware was notably recognized by Congress in June, 1776, when a committee of twelve gentlemen were appoint-
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HISTORY OF DELAWARE.
ed to draft the articles of confederation and | Pennsylvania Bank or North American Bank. perpetual union. Thomas McKean and John Dickinson, intelligent, patriotic and honored citizens of Delaware, assisted in framing that memorable document. In whatever degree the subject of education may have engrossed the thoughts, and its importance has been felt by the people after the war of the Revo- lution closed, the time did not admit of its im- mediate prosecution. The long and sanguin- ary conflict through which the colonists had passed, had not not only drained the life-blood of Delaware's noble sons, but had exhausted the substance of the soil as well, so that for many years following, the people were Governor Cochran, in his message to the General Assembly of 1877, remarks: "That was, as it may seem to us now, a day of small things ; yet with a steadiness of purpose under great discouragement, which we cannot too much honor, the investments of these small sums were faithfully made from year to year, until at length a fund was accumulated, yield- ing an income adequate to commence the work of a more general education." poor and illy prepared to spend their money for educational purposes. In addition to the State's private indebtedness, and the money necessarily appropriated towards reimbursing its returned veterans, its share of the national debt had to be paid. Perhaps at this day no one scarcely can imagine, much less realize, the condition of the commonwealth a quar- ter of a century following the war of freedom. The poor and neglected lands yielded but a scanty sustenance. The vast uninhabited por- tion not being taxed, mechanical pursuits al- most abandoned, commercial enterprises yet in their infancy-these impediments to pros- perity all tended seriously to retard the recu- peration that would readily come at this day.
FIRST LEGISLATION.
In framing the Constitution of the State of Delaware in 1792, the people specifically charged the General Assembly upon the subject of pop- ular education. Among other objects of prime importance, the Legislature was directed to pro- vide by law" for establishing schools and promo- ting the arts and sciences." Thus nobly spoke the people, but it was not heeded by the Legislature that first met under the new Con- stitution. But four years. afterward, Febru- ary 9, 1796, an act was passed by the Legisla- ture with the following provision : That the money paid into the State Treasury on account of marriage and tavern licenses, be- tween February 9, 1796, and January 1, 1806, be and is hereafter to be applied, under the direction of the Legislature, for establishing schools in the State. The money thus accru- ing was directed to be put into shares of the Bank of Delaware, United States Bank,
Subsequently the same was modified by putting the residue arising from the sale of licenses, after paying the salaries of the Judges and Chancellor, into the school fund. A supple -. ment was passed in 1806 to continue in full force the modified act, of 1795 until January I, 1820. There is no record to show that these sums were ever diverted from the school fund. So that more than four score years ago Delaware started a fund for establishing free schools in the State. Though small the be- ginning, yet it contained wonderful possibili- ties.
The school fund, with its yearly additions, was not disturbed until the year of 1817, when it had increased to an amount sufficient to yield an available income. The Legislature began to devise means for appropriating it to some use. Accordingly an act was passed, February, 1817, giving each county the one thousand dollars to furnish instruction to the children of poor parents, in reading, writing and arithmetic. The Legislature appointed trustees in the several hundreds to disburse these amounts, and to report from time to time the number of children and the state of the schools. This act was in force for several years, yet it did not meet the views of the people ; in fact it became very unpopular. Governor Cochran, in his message in 1877, says : "It is not surprising that a provision which invited an independent people to have their children schooled as paupers proved a failure. Perhaps the best fruit of this effort was that it excited a wide-spread discontent, which served to quicken interest in the sub- ject, provoking discussion and stimulating to an earnest effort for a better matured and more efficient system."
As is expressed in the above quotation, discontent prevailed until it became so wide spread that the school fund, which had been
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HISTORY OF DELAWARE.
accumulating for years, was itself in danger of | you the serious consideration to which it is justly entitled."
being diverted from its legitimate purpose. The line that marked the distinction between poor children and those of the richer class, was so clearly defined in the following act passed in 1821, and in the operation of the same, that a "high spirited and brave people " could not endure this indignity to their self- respect :
" Be it enacted, That for each and every white child taught at any incorporated school or any other regular English school within this State, and for whose tuition the teacher could not in any other way receive compensa- tion, by reason of the indigence of such child, the teacher should receive one dollar per quar- ter or four dollars annually, to be paid out of the unappropriated money in the school fund, established for schools. And no one teacher should be paid for more than twenty children during each year."
This act was even worse than the former; so much so that the children who were bene- fited became marked, and were the subject of taunts and jeers by their more fortunate mates. The fund was called the "pauper's fund." Such were the feelings of the people at that day, that Governor Collins, in his mes- sage to the Legislature in 1822, forcibly and aptly says: "The charitable nature of the appropriations and the benevolent views with which they are made, command our esteem ; but it is wisdom to consider that the general purposes of education in which the whole com- munity are interested, demand more than our school fund can afford, and that duty there- fore requires that no part of it should be diverted from its legitimate course."
Governor Rodney, in his message to the Legislature in 1823, thus concludes his remarks upon the importance of a system of education having for its object the general welfare of all : "It is not my design to suggest that the State ought gratuitiously to provide for the education of its citizens, but that it should found a system that may be accessible to all."
Governor Thomas, in 1824, follows in these very appropriate words : "I would earnestly press upon your attention the propriety of adopting some plan by which the means of education may be accessible to every member of the community. This is a subject of prim- ary importance, and I trust will receive from
Governor Polk, in his message, in 1829, says : Any plan that can be devised by which the business of improving the education and morals of our people shall be reduced to a permanent system throughout the State, will be a public blessing. We have been so long without any, that some who were once advo- cates of the fund for the establishment of schools, in despair of ever arriving at a suc- cessful system, have been willing to divert the fund from its legitimate purpose, and those who have observed the growing diversity of opinion in regard to its destiny, may estimate the danger of its eventual application to exe- cute some favorite measure, unless a seasonable plan is adopted in the performance of what has been so long promised, be interposed to prevent it."
But the subject of education, comprehend- ing a broader and more general plan, was placed at length in the front ranks, with other issues of the day. Long and ardently had the friends. of education labored, and the time was at hand when their reward would more than compensate them for their continued labor. The lamented Judge Hall, while Secretary of State, under Governor Collins in 1822, devised a plan for the promotion of general education, the ideas of which were eventually incor- porated in the free school law of 1829. Well may he be called the Father of the Free School System of Delaware, the founder of a system which essentially has been in force more than half of a century. Could the child have a more honored and worthy father ? The man whose education had cost him years of toil, and in securing which he had to grapple and combat with poverty, was well and highly endowed to be the people's exponent of this important step. A man whose life and labors, running through a period of forty eight years among us gave the highest proof of his sin- cerity, and the desire for the elevation of the rising generation.
From 1822, when he gave to the Legislature what in outline and principle became the present free school law, until 1829, did he per- sist in the grand undertaking, until the Legis- ture invited him to mature his plan in detail and embody it in a statute. Thus was pro- duced and thus became in 1829 the-
مرات المبدل - إثار الفرالكفالات العيد
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HISTORY OF DELAWARE.
FREE SCHOOL LAW OF DELAWARE. |
SYNOPSIS OF THE LAW.
Divisions of the State into School Districts .- Five commissioners were appointed in each county, whose duty it should be to divide the counties into school districts. In making this division "it shall be a general regulation to form each district so that the most remote parts should be two miles or about that dis- tance from the centre, except districts com- prehending a town, which may be of such di- mensions as shall be just, having respect to the size of town or towns.
Annual School Meetings .- The school voters in each district were privileged to meet and hold a stated meeting every year on tlie sec- ond Monday of October at I o'clock in the afternoon, at the school house or any place designated by the Levy Court, to elect by bal- lot (majority vote) a clerk and two commis- sioners. Also in the same manner declare how much money shall be raised by subscrib- tion or voluntary contribution for the support of free schools in the district during the year. Every person residing in the district and hav- ing a right to vote for Representative in the General Assembly should be a school voter of said district.
Duties of the Clerk and Commissioners .- I. To determine a site for school building and erect a building. 2. To keep the building in good repair. 3. To provide a school for as long a time as the funds will admit. 4. To collect all monies and apply the same. 5. To do all acts requisite to the maintenance of a school.
State Appropriations .- Each district should have from the school fund an amount equal to that resolved to be raised by the voters, and no greater.
Opening Schools-Each school shall begin on the first Monday of November of each and every year.
Corporations .- Each school shall be a cor- poration by the name of School District No. -. Said corporation by said name shall take and hold grounds, buildings, &c., and pro- tect property as any other corporation.
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