USA > Delaware > History of the state of Delaware, Volume III > Part 11
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STATE CONSTITUTIONS.
THE CONSTITUTION OF 1897.
The fourth Constitution of the State was ordained on the tenth day of June, 1897. This Constitution provides that the judicial power of the State shall be vested in a Supreme Court, (in lieu of the old Court of Error and Appeals) a Superior Court, a Court of Chancery, an Orphans' Court, a Court of Oyer and Terminer, a Court of General Sessions, a Register's Court and Justices of the Peace.
By this instrument the number of the judges was increased from five to six, one of them to be Chancellor, one of them Chief Justice, and the other four Associate Judges. The Chancellor, Chief Justice and one of the Associate Judges are to be appointed from and reside in any part of the State, the other three Associate Judges to be appointed from any part of the State, but one of them to reside in New Castle County, one in Kent County and one in Sussex County.
The Constitution provides that the judges shall be appointed by the Governor, for the term of twelve years, instead of for. life, or during good behavior, as was the case under the old Constitution, and that such appointments shall be confirmed by the Senate. It further provides that said appointments shall be such that no more than three of the five law judges, in office at the same time, shall have been appointed from the same political party.
The Supreme Court, upon a writ of error, is composed of the Chancellor and such of the other five judges as did not sit in the cause below. It is the duty of the Chancellor to pre- side when present, and any three of them constitutes a quorum. Upon an appeal from the Court of Chancery, this Court is composed of the Chief Justice and the four Associate Judges, the Chief Justice to preside when present.
The Superior Court, the Court of Oyer and Terminer and the Court of General Sessions are each composed of the Chief Justice and the four Associate Judges. It is provided that the five judges shall designate those of their number who shall hold the said courts in the several counties, but no more
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STATE CONSTITUTIONS.
than three of them shall sit together in any of these courts. Under the old Constitution a judge could not sit in these courts in the county in which he was a resident. This re- striction the present Constitution removed. The Orphans' Court in each county is held, as formerly, by the Chancellor and the Associate Judge residing in the county, or by either of them. The Court of Chancery is held by the Chancellor, and the jurisdiction includes full power to hear and determine all matters and causes in equity.
Indeed, the jurisdiction of each of these courts is the same as was vested in them by the laws of the State under the Con- stitution of 1831, and is co-extensive with the State. The Constitution did not change their character, nor materially affect the mode of procedure in any of them. The object of the convention was solely to amend and revise the former Constitution, and adjust it to present needs and requirements. The convention finished its work on the fourth of June, and provided in its schedule that the Constitution should take effect on the tenth of that month.
The lawyers who were members of this convention were William C. Spruance, who became one of the first Associate Judges under the Constitution, Edward G. Bradford, who was appointed United States District Judge, soon after the conven- tion adjourned, John Biggs, the president, Martin B. Burris, Charles F. Richards, Charles B. Evans, Robert G. Harman, Edward D. Hearne, Woodburn Martin and William T. Smithers.
The following have been members of the Delaware Judiciary under the State Government :
Chief Justice of Delaware under the Constitution of 1776.
Appointed.
William Killen
. June 6,1777
Chief Justices of the Supreme Court under the Constitution of 1792.
George Read . September 30, 1793
Kensey Johns, Sr. January 3,1799
Samuel M. Harrington . October 16,1830
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STATE CONSTITUTIONS.
Chief Justices of the Court of Common Pleas under the Constitution of 1792.
Richard Bassett . September 6, 1793
James Booth, Sr.
January 28,1799
Thomas Clayton
February 8, 1828
Chief Justices of Delaware under the Constitution of 1831.
Thomas Clayton
January 18,1832
John M. Clayton .
January 16,1837
Richard H. 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 Constitution of 1897. Charles B. Lore
June 12, 1897
Associate Judges of Delaware under the Constitution of 1831.
James R. Black
. January 18, 1832
Samuel M. Harrington
January
18, 1832
Peter Robinson
January 18, 1832
Caleb S. Layton
June 3, 1836
John J. Milligan
September 19, 1839
David Hazzard
December 10, 1844
Edward Wootten
September 6, 1847
John W. Houston
May
4, 1855
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
Associate Judges of Delaware under the Constitution of 1897.
William C. Spruance .
June
11, 1897
Ignatius C. Grubb
June 12, 1897
James Pennewill .
June 14, 1897
William H. Boyce
June
17,1897
Chancellors of Delaware under the Constitution of 1792.
William Killen
October 6, 1793
Nicholas Ridgely
. December 6, 1801
Kensey Johns, Sr.
June 21, 1830
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STATE CONSTITUTIONS.
Chancellors of Delaware under the Constitution of 1831.
Kensey Johns, Jr. . . January 18, 1832
Samuel M Harrington May 4,1857
Daniel M Bates . . December 12, 1865
Willard Saulsbury
November 14, 1873
James L. Wolcott
May 5,1892
John R. Nicholson
September 5, 1895
Chancellor of Delaware under the Constitution of 1897. John R. Nicholson
June 10, 1897
Law Reporters.
Samuel M. Harrington 1832-1855
John W. Houston
1855-1893
David T. Marvel
1893-1897
James Pennewill
. 1897-
Chancery Reporters.
Daniel M. Bates . 1814-1873
Willard Saulsbury
1873-1892
James L. Wolcott
. 1892-1895
John R. Nicholson
1895-
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THE JUDICIARY OF DELAWARE.
SKETCHES OF CHANCELLORS.
WILLIAM KILLEN.
William Killen, the first Chief Justice, and also the first Chancellor of the State of Delaware, was born in North Ire- land in 1722 of Scotch Presbyterian parentage, and when a lad of fifteen came to the United States and soon became an inmate, possibly in the capacity of tutor to a junior son, of the family of Samuel Dickinson, father of the late John Dick- inson whose fine estate in Kent County, near the Delaware, yet bears the family name. In a few years he becaue Deputy Surveyor of Kent County under the proprietary government, an office of responsibility which only a man of more than ordinary education could fill. His family Bible contains an entry by himself of his marriage, April 10, 1753, to Rebecca Allee, who died September 23, 1773, leaving two sons and three daughters, one of whom became the wife of the Ilon. Willard Hall, United States Judge for the District of Dela- ware, and another, of the Hon. Jacob Stout, an Associate Jus- tice and Governor of Delaware. Mr. Killen was admitted to the bar in Kent County and practiced there many years. He possessed a sound legal mind, richly stored and highly trained from reading and reflection. Under the State Constitution of 1776 he was appointed Chief Justice of the Supreme Court and held that office until he became Chancellor under the Constitution of 1792. Throughout the Revolution he was a staunch Whig, and a member of the Committee of Safety for Kent County. He afterwards became a Democrat and an earnest supporter of the principles of his party.
Upon the separation of Equity jurisdiction from the Law
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THE JUDICIARY OF DELAWARE.
Courts under the Constitution of 1792, the Hon. George Read was proposed for the position of Chief Justice of the Supreme Court by the Whigs iben in power, but honorably refused to ac- cept the office unless Judge Killen was promoted to the Chan- cellorship of the new judiciary. Despite the pressure brought to bear upon him by the friends of certain aspirants for that position, Mr. Read insisted that inasmuch as Judge Killen had accepted the perilous trust of Chief Justice, and bravely discharged its duties at a time when failure of the colonial cause meant death to insurgent office-holders, he should not now be displaced. Judge Killen thereupon became the first Chancellor of the novel and untried Court of Chancery, to which, however, the business of the Orphans' Court was not added until 1802 by an amendment of the Constitution of 1792 through the influence of Chancellor Ridgely. Few cases arose for his adjudication and of his opinions either as Chief Justice, or as Chancellor, no notes remain. He resigned the office in December, 1801, with the understanding that Nicholas Ridgely, then Attorney-General, should be his suc- cessor.
Governor David Hall had been elected by the Democratic party, and was to come into office in January. To those who censured the Chancellor for not deferring his resignation until an appointment by Governor Hall would have been possible, his reply was that though himself a Democrat he deemed it his duty to restore the office to the party from which he had received it. The last years of the Chancellor's life were spent in seclusion largely occupied with his favorite mathematical studies. He possessed a memory of unusual retentiveness that even in old age preserved to an extraordinary degree the rich treasures of earlier years. He was a devout and con- sistent member of the Presbyterian Church. He died October 5, 1803, and his remains were buried in the Presbyterian churchyard in Dover.
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THE JUDICIARY OF DELAWARE.
NICHOLAS RIDGELY.
Nicholas Ridgely, the son of Charles G. Ridgely, a promi- nent physician, was born at Dover September 30, 1762. After finishing a thorough scholastic course, he read law, complet- ing his legal studies under Robert Goldsborough, Esq., of Cambridge, Maryland. The labor of acquiring a knowledge of the law was in his day an arduous one, the unsifted body of the res adjudicata, a males indigesta, was truly formidable compared with the pleasing task to which the science has since been reduced by the genius of a Blackstone and a Kent. Still, so quickly and so totally did young Ridgely surmount these difficulties that even as a youth we find him winning distinction among so brilliant a galaxy of Delaware lawyers as James A. Bayard, Cæsar A. Rodney, Nicholas Van Dyke and others. In 1791 he was appointed Attorney-General of the State, whose duties for a decade he discharged with credit to himself and satisfaction to the public. He was elected the same year a delegate from Kent County to the convention that formed the Constitution of 1792. The task confronting that body of forming the first complete fundamental instrument in their new experiment of popular self-government, undertaken by men largely bred under the aristocratic institutions and tradi- tions of England, was no common one, and that they per- formed their task wisely and well, is attested by the fact that this Constitution endured upwards of forty years, the peer of any of the like thirteen colonial charters, giving to its citi- zens ample protection of life, liberty and property. And although Mr. Ridgely was probably the youngest member of the convention, he at once assumed a standing of pre-eminent usefulness in all of its deliberations. He was also chosen a Representative from Kent County in the first General As- sembly called together in 1793 under the new Constitution. Legal talents and erudition of a high and varied character were demanded in that Assembly to adapt the system of law then in vogue to suit the principles and needs of the newly established government, requiring at once an acquaintance
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THE JUDICIARY OF DELAWARE.
with the old law, its methods and defects, and the skill to ad- just it to meet the requirements of the new, and the whole convention looked to the legal learning and training of the brilliant young advocate to solve this difficult problem. An inspection of the proceedings of that Legislature will abund- antly show this. Indeed most of the laws of a general and public nature passed at that session were framed and drawn by him, and were generally adopted without amendment. He afterwards frequently served his State with like ability and fidelity as a member of the Legislature.
In 1801 upon the resignation of William Killen as Chan- cellor, Mr. Ridgely was appointed his successor, and to his everlasting fame be it recorded that the immense power lodged in his single hand, over the liberty and property of a great portion of the citizens of the State, in his dual capacity of Chancellor and ex-officio Judge of the Orphans' Court, was exercised by him always for the furtherance of the ends of justice, and for the protection of the oppressed and the inno- cent. As Judge and Chancellor he was held in the highest esteem by every member of the Bar practicing in his courts, and although the correctness of his opinions was sometimes questioned, his motives were never impugned nor the entire honesty of his intentions doubted. He heard the arguments of all with equal patience and urbanity, whether the leaders at the Bar or unskilled beginners, and made his decisions only after an exhaustive consideration of all the authorities pertinent to the case cited by counsel, and sometimes added others of his own.
His incumbency at a time when the new Chancery practice was in its formative state, was signally fortunate for both the Bar and the laity, for like another Hardwicke or Eldon, with no precedents to guide him, he moulded the principles and practice of equity into a consistent and harmonious system under the Constitution and laws of the State. He was a just judge and an upright man, and alike in public and private station lived a life of singular purity and probity. His death
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THE JUDICIARY OF DELAWARE.
occurred April 1, 1830. shortly after hearing an appeal in the Orphans' Court till eight o'clock in the evening.
As illustrating the profound esteem in which he was held by all classes in the county and State, it is said that the largest concourse of people ever known upon a similar occasion, fol- lowed his remains to their last resting place in the Dover Episcopal burying ground. Unfortunately for the profession and the public his own notes on all the cases argued before him, and his opinions on important cases, written out and de- signed for publication, have never been so published. In person, he was about the ordinary size, with a strong and clear voice and a countenance so remarkable as to defy description, but one which the beholder never forgot. His was also an exceptionally good memory, while his general learning and especially his intimate acquaintance with English history, made him the superior of any other man of his time in the State. A plain marble slab, simply inscribed with his name and age, and the fact that he died while in the discharge of his official duties, marks the spot where repose the ashes of one of the most illustrious of Delaware's jurists.
KENSEY JOHNS, SR.
Kensey Johns, Sr., was born in 1759 on West river, Mary- land, and began the study of law with the Hon. Samuel Chase, afterwards Judge of the Supreme Court of the United States ; but removing to Delaware, he completed his studies in the office of George Read, a distinguished lawyer and one of the signers of the Declaration of Independence. Mr. Johns married the daughter of Governor Van Dyke, and soon won by his talents a lucrative practice and accumulated a handsome estate. He was honored by being chosen delegate from New Castle County to the Constitutional Convention of 1792, and formed, with Nicholas Ridgely and Richard Bassett, two more of Delaware's foremost jurists, the distinguished triumvirate of legal minds to whose joint labors that Constitution was mainly due. In 1794 he was again honored by being appointed by Governor
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THE JUDICIARY OF DELAWARE.
Joshua Clayton to fill a vacancy in the United States Senate occasioned by the resignation of George Read, but owing to a doubt as to the legality of the appointment, after the interven- tion of a Legislature, he never took his seat.
He abandoned his large practice to become an associate with George Read, newly-appointed Chief Justice of the Su- preme Court under the Constitution of 1792, and upon the death of Chief Justice Read, in 1798, succeeded him. He performed the duties of this responsible position, for which by learning and experience he was especially fitted, for more than thirty years. His discriminating legal mind was able to grasp and correctly apply to the changed system of government and to the altered institutions the many new questions which arose; and, moreover, from his familiarity with the late Chief Justice Read, as his disciple and associate, he was thoroughly acquainted with the State's judicial history and the unwritten decisions upon points of law which had arisen before and after the Constitution of 1776, in whose framing Mr. Read was a prominent member. In the language of the Hon. George B. Rodney he was " thus enabled to establish and engraft upon our system the principles of construction which had received the approbation of the grave and venerable men who had sat in our courts from the period of the Revolution down to his own time." In April, 1830, upon the death of Chancellor Ridgely, Governor David Hazzard appointed Chief Justice Johns as his successor. By reason of his ripe legal learning and his long experience as president of the Court of Errors and Appeals in Chancery cases, he possessed great advantages for the office, which he exercised with entire acceptability to the public and the profession for two years, when, because of his advanced age, he voluntarily withdrew to private life. He was a polished gentlemen of the old school, markedly kind and indulgent to the younger members of the bar and cour- teous to the older, an upright judge and a good citizen in all the relations of life. He died while yet in the full possession of his mental powers, at the advanced age of ninety years.
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THE JUDICIARY OF DELAWARE.
KENSEY JOHNS, JR.
Kensey Johns, Jr., was born in New Castle in 1791, and graduated at Princeton College in 1810. After studying law with his uncle, Nicholas Van Dyke, then one of the leaders at the bar, and at the Litchfield, Conn., Law School, he was admitted to the bar in 1813, where he soon gained a high standing. His legal training had been excellent and his natural faculties were of a high order, and his custom of re- ferring every case to some well-settled principle of law rather than seeking to support it upon mere case authority proved very useful to him both as lawyer and as judge. On account of his high character as a man and as a lawyer he was chosen to fill the unexpired term of the Hon. Louis McLane, who was made United States Senator, and was thereafter twice elected Representative in Congress, earning in both stations for him- self and the State the respect and esteem of his associates. After retiring from Congress he resumed his practice, but upon the resignation of his venerable father from the Chancellorship, the Governor, at the suggestion of the bar and of the citizens generally, conferred that honor upon the son, no less well fitted than the father to discharge its weighty duties. Chan- cellor Johns possessed a judicial mind and temperament, and while painstaking and laborious to a degree in his careful ex- amination of questions and authorities in cases submitted for his determination, he was also notably prompt in making his decisions, seldom permitting the term to pass without such action. He not only laboriously, but conscientiously, sought correctly to adjudge every case thus submitted, but also to draw therefrom well-defined principles and rules of equity for the future guidance of the bench and bar.
Though not inerrant as a judge, his decisions were gen- erally well taken, and in the great majority of cases affirmed, on appeal, by the Court of Errors and Appeals, a circumstance which, aside from the learned research which stamps his opinions, proves his judicial ability. He filled the several offices of Chancellor and Presiding Judge of the Orphans'
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SAMUEL M. HARRINGTON. 1803-1865.
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THE JUDICIARY OF DELAWARE.
Court, and of the Court of Errors and Appeals, for over twenty-five years, rarely missing an engagement from any cause whatever, and like Chancellor Ridgely, died in harness, expiring suddenly at the close of a term in Sussex in March, 1857. Alike as citizen and judge, he was moral and upright, from his youth a consistent Christian, a member of the Pres- byterian church in New Castle. The unexpected close of his useful life was a cause of great grief to his friends and to the public.
SAMUEL M. HARRINGTON.
Samuel Maxwell Harrington was born in Dover, February 5, 1803, on his father's side of English, and on his mother's, of German ancestry. He finished his academic studies at Washington College, Maryland, graduating in 1823 with the first honors of his class. The death of his father threw upon him during his minority the support of his mother and two sisters. His first public service was in the office of the Pro- thonotary of the Superior Court of Kent County. He next became a law student in the offices of Henry M. Ridgely and Martin W. Bates, and was admitted an attorney at the Octo- ber Term, 1826. In 1828, by appointment of Gov. Charles Polk, he succeeded John M. Clayton as Secretary of State, and was reappointed by Gov. David Hazzard. Upon the occur- rence, in 1830, of a vacancy in the office of Chief Justice of the Supreme Court, young Harrington, though but twenty- seven years old and three years at the Bar, was paid the very unusual honor of an elevation to the Chief Justiceship of the Supreme Court, and in 1831, after the abolition of that tribunal, he was appointed to the equally important office of Associate Justice in the newly-created Superior Court. In 1855 he was made Chief Justice of this court, and held that honorable station for two years, when he was tendered the highest official honor in the State, the Chancellorship, whose responsible functions he exercised with signal ability till his death, November 28, 1865.
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THE JUDICIARY OF DELAWARE.
From 1832 to 1855 he was the official reporter of the State courts of Delaware, and in 1849, together with Daniel M. Bates and Joseph P. Comegys, was chosen by the Legislature to revise the whole body of the public statute law then in force, with the large discretion of omitting or varying what- ever provisions they thought best to reduce the statute law to a more consistent and useful instrument. This delicate and responsible trust was so admirably performed by the Commis- sioners that the results of their labors, the Revised Code, was unanimously adopted by both House and Legislature, Febru- ary 27, 1852. The year following this noteworthy achieve- ment, Delaware College conferred upon the Chancellor the honorary degree LL.D.
Only the possession of precocious and unusual talents could have made possible such an extraordinary career as that of Chancellor Harrington, a career whose triumphs were won upon native merit without help of social or political influence to any marked extent. And that he filled those high posi- tions with exceptional ability, discharging the duties of each with more than customary success, silenced all criticism and fully vindicated the wisdom of his selection. The recital of his legal labors as reporter, justice, Chief Justice and Chan- cellor, would be to summarize the judicial history of the State for over a third of its existence. His was the hand that largely compiled its written law, and his the brain that wisely inter- preted its provisions, and in these manifold legal labors of his busy lifetime, it may be truly said, in the language of Horace, he has builded for himself " Monumentum aere perennius."
Nature made in him almost an ideal judge, kind, courteous, patient, ever modestly willing " alteram partem audire," and adding to his native gift of a keen, logical intellect, the even greater qualification of a toiling, tireless industry. His in- tegrity was like Cæsar's wife clear above suspicion, and his candid judicial temper is disclosed in his noble utterance in Rice vs. Foster, 4 Harr. 499, that he would much rather be right than consistent. Never was judge more conscientiously
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THE JUDICIARY OF DELAWARE,
scrupulous of performing every atom of his official function ; and for this cause he spared no research nor drudgery even, whether the matter at Bar were some minutix of Orphans' Court business, or some cause celebre of the Court of Errors and Appeals. Thus was his whole useful, laborious life passed, and not even so lamentable and dire a visitation as a stroke of paralysis could quite force his strong will to desist from useful toil. But the sphere of his usefulness was not bounded by the court room. As a citizen and patriot he was ever active in promoting any enterprise or cause beneficial to the public, as, for example, the building of the Delaware rail- road, largely due to his efforts. "This work alone," says N. B. Smithers, " ought to endear his memory to this people, and endure as a monument of his wisdom and perseverance in securing this instrument of their prosperity."
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