Delaware Historical Law Guide

Contents

Legal Ages at a Glance

General Principles

An English common-law state

Delaware's law is English common law — judge-made law, handed down through court decisions rather than written by a legislature. The first European settlement on the Delaware was Swedish, at Fort Christina, on the site of present-day Wilmington, in 1638. Dutch control followed in 1655 and English control in 1664. From 1682 the three counties of New Castle, Kent, and Sussex were part of William Penn's grant, "the Three Lower Counties upon Delaware." They gained their own assembly in 1704 and shared Pennsylvania's governor until independence¹. One consequence is worth knowing before you start searching: until 1704 the Lower Counties sat in assembly with the Pennsylvania counties, so a good deal of Delaware's colonial record is filed among the colonial records of Pennsylvania¹.

Which law governed depends on the year. Under Sweden and then the Netherlands the settlements ran under the officers and the practice each of those governments brought with it. English law arrived with English rule: on 25 September 1676 Governor Edmund Andros promulgated an ordinance directing that the book of laws established by the Duke of York and used in New York — the Duke of York's Laws — should be in force and practiced on the Delaware as well². Penn's grant of 1682 and the assembly of 1704 carried that English footing forward, and the constitution of 1776 fixed it in place. So the common law described in this guide governs from the later seventeenth century onward; for the Swedish and Dutch decades before it, expect the practice of those governments instead.

The first state constitution kept the English inheritance deliberately. The common law of England, together with so much of the statute law as had been adopted in practice, stayed in force until the legislature changed it, except where it clashed with the new constitution³. Every later constitution — 1792, 1831, and 1897 — carried that reception forward. So for any given year, the rule in force is the statute where the General Assembly had passed one by then, and the common law everywhere else.

Two rules shaped almost every Delaware record, and each of them changed on a date worth knowing. Land was divided among all of a person's children rather than going whole to the eldest — but until 1794 the eldest son took a double share, and only after that did the children share alike⁴. And a married woman's property was her husband's to manage, under the common-law rule of coverture, until the married women's act of 1873 gave her an estate of her own. Both changes are set out under the topics they belong to.

One further fact frames every year covered here: slavery was lawful in Delaware until the Thirteenth Amendment took effect in December 1865⁵. Where race changed a rule — in marriage, in property, in the tax lists, in testimony — the difference appears below under the topic it belongs to.

One piece of Delaware vocabulary runs through all of it. Each county is divided into hundreds. A hundred is a local subdivision, roughly what a township is elsewhere, and it is the unit the assessor worked in⁶, the unit the jury boxes were kept by⁷, and the unit a marriage was published in⁸. When a record names a hundred, it is naming a neighborhood.

Legal Age of Adulthood

Majority at twenty-one

Full legal age in Delaware was 21, for women and men alike, throughout the period. It came from the common law rather than from any statute fixing it⁹. A person under 21 was an "infant" in legal language, even at 20.

A minor could own property. What the law limited was the minor's power to hand it on. A minor's contract, unless it was for necessaries — food, clothing, lodging, and the like — was voidable, meaning it held good until the minor chose to undo it. He could undo it during minority or on coming of age, "as his own views of his interest may lead him to elect"¹⁰. A deed made by a minor was voidable in the same way, and he had to disaffirm it within a reasonable time after reaching 21¹¹. In practice a minor's land was sold for him by a guardian under an order of the Orphans' Court, the county court that handled estates of the dead and the property of minors.

One statutory exception ran the other way. A married woman under 21 could execute a valid bond, obligation, or mortgage, and it bound her¹². And in 1945 the age to make a will dropped to 18, which is set out below under Inheritance.

Marriage

Who was old enough to marry

Into the twentieth century the common-law ages governed: a boy could marry at 14, a girl at 12. A marriage below those ages was not yet final. On reaching the age of consent either party could back out of it; if they went on living together instead, it stood¹³. The marriage-license act of 1913 required a license but set no minimum age of its own. A minimum arrived in 1921, when the General Assembly rewrote the marriage chapter: no male under eighteen and no female under sixteen was to marry¹⁴. Those were still the ages at the close of the period.

Parental consent reached higher than the marrying age, and the consent rule is much the older and steadier of the two. It was fixed by the marriage act of 1790: no minister was to marry a male under 21 or a female under 18 without the consent of the parent, guardian, or master, given in person or signified in writing¹⁵. The Code of 1852 carried the same two ages forward, adding that a minister who married such a couple without the consent answered in damages to the party wronged¹⁶.

The license system kept the same two ages, and required the consent in writing under hand and seal before two reputable witnesses. From 1921, where a minor had no parent or guardian, a judge could give the consent instead¹⁴. By the end of the period one release had been added: the requirement could be suspended where the couple swore before the licensing officer that they were the parents, or the prospective parents, of a child, and the reason was endorsed on the application¹⁴.

The two consent ages held throughout the period; only the marrying age moved. An underage or unconsented marriage stood as a marriage; the penalty fell on the officiant¹⁶. In practice an ancestor's youthful marriage was almost certainly valid.

A marriage required a ceremony

Delaware never recognized common-law marriage. A couple could not become husband and wife merely by agreeing to be married and living together, however long they did so and however completely the neighborhood accepted them. A valid Delaware marriage required a ceremony before an authorized officiant, and it always had. The act of 1790 declared that the rites of marriage were not to be celebrated by anyone except an ordained minister or preacher of the gospel, or the religious society the parties belonged to. The penalty was a hundred pounds¹⁵. The later law added the mayor of Wilmington to the list of people who could officiate⁸. Marriage came from that ceremony, and the courts held so in an unbroken line¹⁷. So for a Delaware couple there should be a ceremony, an officiant, and a record; a long cohabitation on its own never made a marriage.

Before 1790 a justice of the peace could perform the ceremony. The act of 1790 recites that the conditions which had made it convenient to have marriages celebrated by justices of the peace were now removed, and it is that act which confined the rites to ministers and religious societies¹⁵. A colonial or Revolutionary-era Delaware marriage may therefore have been performed by a justice, and will not appear in any minister's register.

These rules then held for sixty years. The marriage chapter of the Code of 1852 was never amended, and it stood untouched until the twentieth-century statutes described next¹⁸. From 1790 to 1912, a Delaware marriage needed the same three things throughout: an authorized officiant, a license or published banns, and a parent's consent for a man under 21 or a woman under 18.

Where a white person was a party, the officiant needed either a license or banns — a public announcement of the intended marriage, read at a place of worship in the hundred where the woman lived, on two Sabbaths after divine service, with no objection made. The requirement goes back to the act of 1790, which forbade any minister to marry without a license or published banns¹⁵, and it ran on through the nineteenth century. Marrying without one or the other cost the officiant a thirty-dollar fine⁸. From 1913 a license was required in every case and banns no longer served, though the act was careful to add that a marriage otherwise lawful was not invalidated by the failure to take one out¹⁹.

Where the couple took a license rather than banns, the act of 1790 put the paperwork in state hands rather than county hands, and that is easy to miss. Before a license was handed over, a bond with good security was taken, and the bonds were filed of record in the Secretary's office. The President or Commander in Chief — the governor — could leave blank licenses with trusted people in different parts of the state for the convenience of the public, and each of them had to return the bonds he had taken into the Secretary's office every November. In 1793 the fee was fixed at two dollars and the Secretary was directed to handle licenses as part of his office²⁰. So for a marriage between 1790 and the Code of 1852, look for a state-level license bond as well as a minister's return; the bond names the groom and his surety, and it is often the only paper a marriage left behind.

How the ceremony was recorded changed once, on a date worth knowing.

Before 1913 every preacher, the mayor of Wilmington, and every religious society that solemnized a marriage had to keep a record of it and deliver a true extract each March to the recorder of deeds, where it was recorded²¹. So Delaware marriage evidence before 1913 sits in ministers' records and in the recorder of deeds' marriage returns; from 1913 it sits in the clerk of the peace's license files¹⁹.

Restrictions on marriage

Marriage within the prohibited degrees of kindred — too closely related, by blood or by marriage — was void. Both parties committed a misdemeanor and were fined one hundred dollars, and a preacher who knowingly performed the ceremony was fined the same²². A couple who left the state to evade the rule and then lived here as husband and wife were punished as though the marriage had been made in Delaware²³.

The act of 1913 added paupers, and a marriage between a person of sound mind and one the statute called "insane or idiotic," to the marriages it made void¹⁹. The code in force at the end of the period carried a longer list of people forbidden to marry. It covered the epileptic, the unsound of mind, and anyone with a venereal or other communicable disease who did not disclose it. It also covered the habitual drunkard or confirmed user of a narcotic drug, the recently divorced who withheld the facts, a patient in an insane asylum, and a person on probation or parole who married without official consent. Each applicant certified that none of these applied, and from 1947 filed a physician's certificate of a serological blood test²⁴. A marriage in this second group was voidable at the instance of the innocent party rather than void. Either way the children were protected: the statute provided that children of void or voidable marriages alike were to be deemed legitimate, which reached even the children of a marriage the law declared void for race²⁵.

Marriage among enslaved people and free people of color

A marriage between a white person and a Black person was unlawful and void, and both parties, along with any minister who knowingly performed it, were fined one hundred dollars²². That bar stood in the statute books through 1950²⁵.

Within their own community, Black Delawareans married under the ordinary law on a separate procedural track that matters for research. They could marry without a license or banns. A free party produced a justice of the peace's certificate that he had proved his freedom before him; an enslaved party, called a servant in the statute, produced the written consent of the master or mistress. An officiant who married them without the certificate or the consent forfeited twenty dollars, and a free person who married a servant without that consent forfeited thirty dollars if a man and fifteen if a woman, to the master²⁶. Delaware's free Black population was large and growing, so Black marriages appear in ministers' and church records throughout the antebellum period, and an enslaved couple could have a marriage the law recognized where the enslaver consented.

Property Ownership

Which men could own land

Land belonged to every free man in Delaware. A free man could acquire, hold, sell, and devise land — devise means to leave it by will — whether or not he held other property, paid a tax, held office, or could vote. Free Black men held that right and exercised it. Statute preserved it expressly, and twice over. An act of 1787 stripped manumitted people and their children of nearly every right of a freeman, but left them two: the right to hold property, and the right to go to law over an injury to person or property. An act of 1863 imposed the same disabilities on free Black Delawareans generally, and preserved the same two rights²⁷. No Delaware statute limited what land a free Black man could buy, hold, or convey, and free Black families appear in the deed books throughout the period. Enslaved men had no capacity to own property, and anything in their hands belonged in law to the enslaver.

A foreign-born man had to take one step first. An alien living in Delaware who had declared his intention to become a citizen of the United States could take land by deed or will, hold it, and convey it, and on his death it descended as though he were a citizen. Alien kindred living in the United States could inherit; alien kindred living abroad were passed over as if they were dead²⁸. So a foreign-born Delaware landowner has usually left a declaration of intention behind him.

That rule is the late one. In the colonial period naturalization was a local act, not a federal one. An act of 1700 let the Governor declare any alien settled or living in the government to be fully naturalized by instrument under the broad seal, on his first making a solemn engagement of fidelity, and the person so named held to him and his heirs the same rights and privileges as any of the King's natural-born subjects. More useful still for the oldest families, the same act declared that all Swedes, Dutch, and other foreigners already settled in the province or territories before the King's letters patent to the Proprietary were naturalized outright, they and their heirs²⁹. So the descendants of the first Swedish and Dutch settlers held and passed their land as subjects from 1700 onward, and you should not expect a naturalization paper for them.

Women and land ownership

For a woman, everything turned on marriage. A single woman or a widow — a feme sole, "woman alone" — could buy, own, sell, mortgage, sue, and be sued exactly as a man could³⁰. A woman transacting freely in the deed books is almost always unmarried or widowed.

A married woman was a feme covert, "covered woman," under coverture: the common-law rule that merged a wife's legal identity into her husband's. Wealthier families worked around it by placing property in trust for her "sole and separate use" — a legal arrangement that kept the property out of her husband's hands and under her own control. Delaware recognized such arrangements from the colonial period: the colonial descent act of 1751 already assumed a widow might be "provided for by marriage settlement" instead of taking her statutory share³¹.

The married women's acts dismantled coverture in two stages, and the difference between them decides how to read a deed. The act of 1865 made a married woman's real estate, mortgages, stocks, and silver plate her sole and separate property, not subject to her husband's disposition and not liable for his debts. But it stopped short of handing her control: she could not sell or mortgage any of it, nor dispose of the rents and profits, without his consent in writing under his hand and seal³². So between 1865 and 1873 a wife could own land outright and still not convey it alone. The act of 1873 finished the work, adding her earnings and her power to sue and be sued as if she were unmarried³³. By the code in force at the end of the period the rule was stated broadly. Whatever property a married woman acquired, in any manner, was her own, along with all its income, rents, and profits. She could sell it, leave it by will, borrow against it, contract, sue, and be sued as if she were unmarried³⁰.

One reservation ran through the whole scheme and outlived it. Nothing a wife did could defeat her husband's curtesy: his life estate in her land if a child had been born alive of the marriage³⁰.

The old estate by the entirety survived the married women's acts. Where land was deeded to a husband and wife together, the survivor took the whole; during their joint lives neither could convey or encumber it without the other; and it was beyond the reach of either one's separate creditors³⁴. A deed to "John and Mary his wife" is therefore a survivorship deed.

Two other useful points sit here. On buying land a married woman could secure the purchase money by her own bond or mortgage as a single woman could, and her husband did not have to join or consent³⁵. And a wife abandoned by her husband without just cause, who owned real estate in her own right, could sell it as though she were unmarried³⁶. A deed by a wife alone reciting abandonment marks a marriage that had collapsed.

When a wife had to sign her husband's deed

A wife's signature, or its absence, tells you both the period and whether the man was married.

The driver is dower: a widow's life estate in one-third of her husband's land, meaning the use of it for her lifetime while ownership passed to someone else. The widow of a man dying after 16 February 1816 took a third part of all the lands her husband had been seized of — had held as owner — at any time during the marriage, and held that third for the term of her natural life. It came to her free of every debt, lien, and conveyance he had made after the marriage, unless she had released her dower by her own voluntary act³⁷. Because dower attached to every parcel the husband held during the marriage, a buyer needed the wife to release hers to take clear title, and she released it by joining in his deed. Her signature was needed throughout the period; what changed was the form of the release.

Dower did not begin in 1816. Before that act the widow's third rested on the common law and, for an intestate estate, on the colonial descent act, which gave the widow a third of the land for her natural life where there were children, and half of it for life where there were none, in each case unless she was already provided for by a marriage settlement³¹. What the act of 16 February 1816 settled was how far that third reached into land the husband had already parted with, and the code carried an express saving so that the act did not disturb any lien or encumbrance created before it passed³⁸. For a husband who died before 1816, then, expect a widow's third for life; the wording of the release in his deeds is what dates the conveyance.

From 1811 a married woman's deed was good only if she was examined privately, apart from her husband. This applied both to a deed of her own land and to a release of her dower in his. She had to acknowledge that she had signed willingly, without compulsion or threats or fear of her husband's displeasure. The examination could be taken before the chancellor, a judge, a notary public, or two justices of the peace for the county³⁹. A deed she made before 1 May 1811 barred her dower without any examination⁴⁰. In 1945 the private examination was abolished and a married woman executed and acknowledged her deeds as if she were single⁴¹. Dower and curtesy themselves were still in force at the close of the period.

One limit on both: dower and curtesy remained subject to execution — seizure and sale to satisfy a judgment debt — where the personal estate was not enough to pay the debt, and Delaware allowed no homestead exemption to shelter the land⁴². A family's land could be sold for the husband's debts in a way it could not in states with a homestead law.

So the working rule for a researcher: a Delaware husband's deed of his own land, joined by his wife and, from 1811 to 1945, showing her private examination, is releasing her dower. A deed of his own land signed by him alone generally means he was unmarried or a widower.

Which children could own land

A child could own land at any age, taking it by descent, gift, or devise just as an adult did. Conveying it was the constraint: a minor's deed was voidable and could be disaffirmed within a reasonable time after he turned 21⁴³, so a minor's land was ordinarily sold for him by a guardian under an order of the Orphans' Court. Own at any age; convey at 21.

Witnessing a deed

A witness of any age could serve, provided he understood an oath and could relate what he saw. Competency, not age, was the test: the Delaware competency statutes turned on interest in the case, on membership of a corporation that was a party, and before Reconstruction on race, and not one of them fixed an age⁴⁴. A deed was made ready for recording either by the grantor acknowledging it or by a subscribing witness proving it, before the Superior Court, the chancellor, any judge, a notary public, or two justices of the peace for the same county⁴⁵. In practice deed witnesses were adults, since a witness might have to appear years later to prove the deed.

Inheritance

Two systems: land and personal property

Delaware ran two intestacy systems at once, one for land and one for personal property, and they worked differently. A person who died intestate died without a will. His land descended by the rules of descent, automatically, to the heirs, at the moment of death. His personal property — money, livestock, furniture, and debts owed to him — was gathered in and distributed by an administrator after the debts were paid.

Land: the rules of descent

Delaware never used primogeniture, the English rule under which the eldest son took the whole of his father's land. From the beginning the land was divided among all the children⁴⁶. But it was not divided evenly at first, and the date the sharing became equal is one of the most useful facts in Delaware estate research.

Under the colonial intestacy act of 1751 the children shared the land, except that the eldest son, or his lawful issue, took two shares — a double portion — of the whole⁴⁶. A son who appears to have received roughly twice what his brothers and sisters got was not being favored by his father; he was taking what the statute gave him.

That ended on 29 January 1794. The preamble put the reason plainly: a republican government owed it to its citizens to preserve equality by keeping the balance of property. The eldest son, or his lawful issue, was now to receive an equal share of the real estate with the other children, and no more. The older act's double portion was repealed outright⁴. So an intestate division before 1794 should give the eldest son a double share; one after 1794 should give every child alike. A division that does not match the rule for its date is a signal to look for a will, an advancement, or a family agreement.

After 1794 the shares were equal, and the order of descent was restated in the Code of 1852. That chapter was amended seven times before 1893, so the order below is the one in force at the end of the century rather than throughout it¹⁸. A landowner who died intestate had his land descend in fee simple — full ownership, with nothing held back — to his kindred in this order⁴⁷:

The statute defined its own terms, which is a help to a reader. Issue means all the lawful lineal descendants of the ancestor. Taking by right of representation means that the children of an heir who died first divide between them the share their parent would have taken⁴⁸.

Sons and daughters, older and younger, shared alike. This is why Delaware estates so often divide a farm among several children or throw off an Orphans' Court partition.

The descent was subject in every case to the rights of the surviving spouse, who took a life interest: the use of the land for life, while ownership itself passed to the heirs⁴⁷. Under the code of 1893 a widow held one-third of the land for life where a child or a child's descendants survived, one-half where none did, and the whole of it where her husband left no kin or heir at all; a widower who had fathered a child born alive held all of it for life. Those fractions were not new in 1893: the one-third and the one-half are what the colonial act of 1751 had already given a widow, and they held from then until 1935³¹. That held until 23 March 1923, when the General Assembly repealed the rule of descent and wrote a new one. The widow's life estate rose from a third to a half where children survived, and to the whole where none did; the husband was given the very same rights in his wife's land, so curtesy no longer depended on whether a child had been born alive; and where there was no kin or heir at all the survivor took the land in fee simple⁴⁹. Those were still the rules at the close of the period⁵⁰. This is why you so often find a widow or widower holding a life interest while the children hold the title.

Personal property: the widow's share

The residue of the personal estate, after debts and charges, went to the children and to the lawful descendants of any child who had died first. If there were none, it went to brothers and sisters sharing both parents, then to those sharing only one, then the father, then the mother, then the next of kin. The surviving spouse's share came off the top in every case⁵¹.

The widow's third where children survived never moved: it is the same fraction in 1751, in 1893, and at the close of the period⁵². What moved, on 10 April 1919, is the case where no children survived. Instead of a flat half, the widow took the whole of the residue up to three thousand dollars and half of anything above that, the other half going to the brothers, sisters, or other kin — and still the whole of it where there was no kin at all⁵³. Three thousand dollars was a large sum in 1919, so in most estates the practical effect was that the widow took everything. Getting these fractions right can make or break a family reconstruction built from an estate division.

One further rule can pull a child's share away from the arithmetic above. From 24 March 1903, anything a child had already received from the parent in his lifetime as an advancement — land or goods, and including property bought for the child with the parent's money — had to be brought into account at its value and set against that child's share of the personal estate, and the rule applied at once to administrations already pending⁵⁴. So an unequal division among children in a Delaware estate file after March 1903 is as likely to be recording a lifetime gift as a departure from the ordinary shares, and the gift is often documented in the same file.

The widow's allowance and her right to elect

On top of her share a widow kept certain things free of the estate, left out of the inventory altogether. These were the family Bible, her own clothes and the ornaments proper to her station, the clothes of the family and of the deceased, and the family stores laid in before the death, up to a value of thirty dollars⁵⁵. She was also entitled, as a prior claim on her husband's estate, to a cash allowance of up to five hundred dollars, whatever else she took under his will or under the intestacy laws; from 1941 she had to claim it within six months of his death⁵⁶. Each is a separate record that usually names the widow.

Where her husband's will gave her a portion of his real estate, the gift was taken to be in lieu of her dower unless the will said otherwise. She could elect instead to take her dower, and had thirty days to do it after formal notice was served on her; if she stayed silent, the will governed⁵⁷. Her election, or its absence, is in the probate file. A widow could also lose her dower before it ever arose: by accepting before the marriage, if she was then 21, an estate in her intended husband's land as a provision in lieu of dower, or by leaving him and living in adultery without reconciliation⁵⁸.

Minors, guardians, and the age of fourteen

A minor inherited immediately; title vested in the heirs the moment the ancestor died. Managing that inheritance fell to a guardian appointed and supervised by the Orphans' Court. A guardian was needed whenever a minor came into property with no parent able to act for him — on a father's death, most often. The guardian gave bond with a surety — someone who guaranteed the debt if the guardian defaulted — took charge of the minor's real and personal property, rendered just and true accounts, and on the ending of the guardianship delivered the property over⁵⁹. That final settlement is one of the most valuable records in Delaware genealogy: it dates the minor's coming of age, and so approximates a birth year.

A father could name a guardian for his child by deed or by will, and that person was appointed unless there was just cause against it; by the end of the period the naming power belonged to the sole surviving parent, mother or father alike⁶⁰. At fourteen a minor could choose his own guardian and the court appointed the person chosen, again unless there was just cause against it. A guardian appointed while the minor was under 14 was superseded when the minor turned 14 and chose another. Where the minor was under 14, lived outside the state, or failed to choose, the court appointed at its own discretion⁶¹. A guardianship record in which the child does the choosing is therefore evidence the child had reached 14.

Guardianship ran to 21 for both sexes, with one difference: a girl's guardianship of the person ended at her marriage if that came first⁶². So a guardian's final account filed when a girl married, rather than at 21, dates the marriage.

Children born outside marriage

At common law a child born out of wedlock was filius nullius, "nobody's child," and could inherit from no one. Delaware relieved this by degrees, and the order matters for dating a family.

The oldest of these rules ran upward, to the mother: when an illegitimate person died intestate and without lawful issue, his property, real and personal, passed to her⁶³. A child conceived out of wedlock could also be legitimated, by any of three routes. The parents might marry before the birth. They might marry after the birth, following a court adjudication or an acknowledgment of parentage. Or the paternity might be acknowledged in writing by both parents — or by the father alone if the mother was dead — and filed in the Prothonotary's office, the chief clerk's office of the county court, in any county. One limit is easy to miss and matters a great deal at an estate settlement: a child legitimated solely by that written acknowledgment did not inherit from the father⁶⁴. So a filed acknowledgment of paternity names a father without making the child his heir, while a marriage of the parents does both.

Where the father was not brought in by legitimation, he owed the child support but never inheritance. The duty was enforced by a bastardy proceeding brought on the mother's oath before a justice of the peace, and the papers it generated — the examination and the father's bond — name the reputed father⁶⁵. For the researcher the point is the limit: naming a father in one of these files established who had to pay for the child, not who the child could inherit from.

Wills, executors, and witnesses

The age to make a will was 21, for a will of land or of personal property alike, and no one under 21 was capable of making one. Married women were excepted at first, and gained the power to devise their own property, at 21, through the married women's acts⁶⁶. In 1945 the will age dropped to 18 for real and personal estate together⁶⁷.

Every valid Delaware will was in writing and signed by the testator. Someone else could write the testator's name for him, but only in his presence and at his express direction. Two or more credible witnesses then signed in his presence, writing their names on the will itself⁶⁸. A witness could be of any age if competent, and a creditor of the testator was competent even where the will provided for paying his debt⁶⁹. Every Delaware will was attested by two witnesses, whatever hand it was written in. The one exception was the nuncupative, or spoken, will. It could pass personal estate up to two hundred dollars. The testator had to pronounce it in his last illness, before two or more credible witnesses he expressly asked to take notice. They had to write it down and sign it within three days, and produce it for probate within thirty days of the death⁷⁰.

A will was proved before the Register of Wills of the county where the testator lived. Once proved it was recorded in that office and the original stayed there, and the record or an office copy was evidence as to both real and personal estate⁷¹. An executor had to be of full age. Where a minor was named executor, his letters testamentary — the court's written authority to act for the estate — were held back until he came of age. In the meantime they went to a co-executor. If there was none, the court granted administration with the will annexed to someone else, meaning an administrator carried out the will in the executor's place⁷². A married woman could be granted letters and could serve as executrix or administratrix as if she were single, though if appointed she and her husband joined as principals in the bond⁷³. So a change of administrator right after a wedding, or on a minor's coming of age, is often the reason a Delaware estate changed hands mid-administration.

Taxation

What was taxed

Two taxes on individuals leave usable records: the property tax on land and personal property, and the poll tax — a flat charge on a person rather than on what he owned. For genealogy the poll tax is the prize, because the county assessment lists it produced name men who owned nothing, which turns the tax lists into census substitutes. Delaware's own assembly dates only from 1704, and for the years before the county-rates act of 1742⁷⁴ the fiscal record of the Lower Counties sits with Pennsylvania's colonial records rather than Delaware's¹.

The rating age was 21 from the colonial period onward. The county-rates act of 1742 told the assessors to leave out any single man under twenty-one at the time of assessment, and any single man who had not been out of his servitude or apprenticeship six months⁷⁵. That six-month grace is worth remembering: a young man could turn 21 and still be off the list for a season. The act was amended in 1766, but the rating age was untouched⁷⁶, and the assessment chapter of the Code of 1852 restated it, amended only twice before 1893¹⁸ — so the rating age of 21 ran unbroken through 1950.

The assessment was made in each county by assessors working hundred by hundred under the Levy Court, the body of county officers that set and laid the county taxes. All property, real and personal, was to be assessed at its true value in money, and every freeman above the age of twenty-one was rated a poll tax on top of his property assessment⁶. So a man's first appearance on the assessment list as a poll brackets his twenty-first birthday.

The colonial act, the Code of 1852, and the poll-tax act of 1898 all say who is too young to be rated and none of them names an upper age. A man stayed on the list as long as he lived in the county, and old age released him from the jury box at seventy but not from the tax⁷⁷. Two things could take him off it. Where a collector had sat the required days and still could not collect, the Levy Court allowed the sum as a delinquency and struck the man's name from the list for a year — a rule that applied only to men assessed for a poll tax, the men with no property⁷⁸. And from 1919 the county Board of Assessment was not obliged to levy the tax on a man financially unable to pay it and physically unable to earn a living, where someone applied on his behalf and the Board's investigation bore the claim out⁷⁹. So a poor man can drop out of the assessments without having moved, married, or died.

The poll tax reached free Black men as well as white men. The assessment law rated every freeman above twenty-one and drew no line by race⁶, and the act of 1863 that stripped free Black Delawareans of the vote left them the right to hold property and said nothing to excuse them from the levy²⁷. So free Black men appear on the assessment lists as polls throughout the antebellum period even though they could not vote until 1870. An enslaved person was not a freeman and so was never rated as a poll; he was assessed to the enslaver as property.

Being assessed mattered beyond the bill. The county list of taxables was the roll the Levy Court drew jurors from each March⁷, and a county tax paid was part of what qualified a man to vote. That is why Delaware assessment and registration records so often note whether a young man was between 21 and 22, and why the tax requirement worked as a lever to keep poor men — and after 1870 Black men in particular — away from both the polls and the jury box.

Courts

Jury service

Who could serve changed twice before the rules described next. Under the colonial act of 1741 the test was property: the sheriff summoned freeholders of his county — twenty-four for the grand jury and forty-eight for the trial jury — at least ten days before the court sat, and drew the Quarter Sessions panel the same way. An act of 2 February 1793 replaced the property test with a character test, directing sheriffs to summon between thirty-six and sixty jurors — up to eighty-four on the special direction of two judges — who were sober, judicious, and of fair character, summoned in writing at least ten days before the return day, with a list giving each man's name, occupation, and place of abode⁸⁰. So the test ran property, then good character, then the taxpaying voter described below.

Jurors had to be qualified voters, which meant men of twenty-one. Everyone qualified to vote at the general election was liable to serve. A short list of occupations was excused: public officers of the state or the United States, lawyers, ordained ministers, officers of colleges and teachers in public schools, licensed physicians and surgeons, and cashiers of incorporated banks. So was everyone more than seventy years of age⁸¹. The jury rules here come from the Code of 1852, amended twice before 1893¹⁸. Each March the Levy Court picked the names from the county's list of taxable citizens, in proportion for each hundred. The ballots then went into separate boxes for grand jurors, trial jurors, and jurors for the Court of Quarter Sessions, the county criminal court. The boxes were kept by hundred⁷.

Tying jury service to the vote fixed who sat on the panel. For most of the period the juror was a white male taxpayer between twenty-one and seventy. Black men became eligible when the Fifteenth Amendment made them voters in 1870, though the tax-payment requirement and later practice kept them off in fact. Women became eligible when the Nineteenth Amendment made them voters in 1920, because the qualification was the vote and nothing else. From 1923, though, a woman drawn for a grand or petit jury was excused if she asked to be, and panels stayed overwhelmingly male⁸². The General Assembly repealed that excuse in 1945, and from then a woman served on the same terms as a man⁸³.

Criminal responsibility

Before the juvenile courts, the common-law ages governed, and Delaware left them where it found them⁸⁴:

• Under 7 — a child was legally incapable of committing a crime.
• 7 to 14 — presumed incapable, a presumption the State could overcome by proving the child understood that the act was wrong.
• 14 and over — full criminal responsibility.

Delaware's own criminal statutes worked from the same line. An adult who helped or urged another to commit a crime was an accomplice, and equally criminal. Where the person who actually committed it was under fourteen and the crime was not capital, an accomplice of full age suffered the highest punishment the offense carried⁸⁵. The law treated the child as an instrument and put the whole weight on the adult.

In the twentieth century special juvenile courts took children out of the ordinary criminal courts and treated them as delinquents rather than criminals. They arrived county by county, so the date that matters depends on where the child lived: Wilmington in 1911⁸⁶, the rest of New Castle County in 1923⁸⁷, and Kent and Sussex in 1933⁸⁸. In 1937 the General Assembly gave those courts exclusive jurisdiction over children across the whole state⁸⁹. The Wilmington court reached boys of seventeen and under and girls of eighteen and under⁸⁶.

Two limits held throughout: a capital felony stayed with the adult courts, so a child charged with one was tried as an adult, and no juvenile court had probate jurisdiction⁸⁹. Once a juvenile court had jurisdiction, a child within its ages has a juvenile file, usually closed to the public, rather than an ordinary criminal case file.

Witnesses

A witness of any age could testify, so long as he understood what it meant to swear an oath and could describe what he had seen. The trial judge questioned a child personally before allowing the testimony. A very young child's word, standing alone, counted for little — but that affected how much weight it was given, not whether he was allowed to speak, and Delaware's rules on who could testify turned on things other than age⁴⁴.

A wife or husband could testify for or against the other, in civil and criminal cases alike — a power the married women's acts extended on the civil side in the 1870s and the code stated plainly by the twentieth century⁹⁰. In a case brought to establish the father of a child born outside marriage, the mother was expressly allowed to testify⁹¹.

Race decided who could testify against whom until Reconstruction, and the Delaware rule came in two parts. An act of 1787 set the bar, and set it on people freed from slavery: no person freed under the laws of the state, and no child of one, could vote, hold office, or testify against a white person. Two rights were expressly left: holding property, and going to court over an injury to person or property. An act of 1799 then opened a door. Where a crime was charged and no white person who could testify had been present when it was committed — or where the white people who had been present had since died, or left the State and could not be produced — a free Black witness was allowed to testify⁹². One case stayed closed: that testimony was never received against a white man to name him the father of a child born outside marriage. The General Assembly restated the whole arrangement in 1863, this time for free Black Delawareans at large²⁷, and kept the 1799 exception.

The courts widened that door by reading "no white person who could testify" narrowly. A white accomplice standing in the courtroom did not count⁹³, nor did a white bystander who had been drunk, or who had seen only part of a fight⁹⁴. A woman who lived as a free woman was allowed to testify without proving she was free, the court holding that the common law assumed freedom⁹⁵. By 1858 a Black witness was allowed to repeat a white defendant's confession heard after the event⁹⁶. Enslaved people's testimony stayed more tightly restricted throughout. Full freedom to testify for all witnesses regardless of race followed the Civil Rights Act of 1866 and the Reconstruction amendments.

Sources & Where to Verify

Constitutions

• commonlaw.name. Side-by-side text of successive versions of individual Delaware constitutional clauses, useful for tracing when a rule changed. https://commonlaw.name/delaware.html (accessed 7 August 2026).
• 50constitutions.org. Side-by-side text of successive versions of individual constitutional sections. https://50constitutions.org/de/constitution (accessed 7 August 2026).
• Delaware Constitution of 1776. Art. 25 (reception of the common law and of so much of the statute law as had been adopted in practice); art. 26 (importation of slaves). ConSource. https://www.consource.org/document/constitution-of-delaware-1776-9-21/ (accessed 7 August 2026).
• Delaware Constitutions of 1792, 1831, and 1897. Each carried the reception of the common law forward; the tax-and-suffrage provisions that governed who could vote, and so who could sit on a jury, are in the 1831 and 1897 texts. Printed with the current constitution. Delaware Code Online. https://delcode.delaware.gov/constitution/ (accessed 7 August 2026).

Codes and Compilations

• Delaware Code (current). Each section printed with its full derivation chain back through the Code of 1935, the Code of 1915, the session laws, and the Code of 1852, which is the fastest way to trace a rule backward. Title 12 (decedents' estates, wills, guardians), title 13 (marriage and domestic relations), and title 25 (property, dower, curtesy, deeds, married women) carry the material in this guide. Delaware General Assembly. https://delcode.delaware.gov (accessed 7 August 2026).
• Revised Code of Delaware, 1935: To Which Are Added the Declaration of Independence, the Constitution of the United States and the Constitution of Delaware. Wilmington, Del.: Star Publishing Co., 1936. xi, 1642 p. The code in force in the last decades covered here, and the source of the section numbers used in the notes above. No free digitized copy is available online. Where a note below cites a section of this code, the text of the section is quoted from the Women's Bureau digest, which is cited alongside it and is freely available; the section numbers can be confirmed against the history line printed under each current section at Delaware Code Online. Catalog record. SearchWorks, Stanford University Libraries. https://searchworks.stanford.edu/view/7654890 (accessed 7 August 2026).
• Revised Statutes of the State of Delaware, to the Year of Our Lord One Thousand Eight Hundred and Fifty-Two, Inclusive. The original code, and the volume to read for the antebellum text of ch. 52 (the chapter on free Black Delawareans) and ch. 107 (witnesses and evidence), both of which the 1893 edition alters or omits. Catalog record. HathiTrust. https://catalog.hathitrust.org/Record/008595797 (accessed 7 August 2026).
• Revised Statutes of the State of Delaware, of Eighteen Hundred and Fifty-Two, as They Have Since Been Amended. Wilmington, Del.: Mercantile Printing Company, 1893. The essential nineteenth-century volume; its chapter numbering is that of the Revised Code of 1852, and it prints each chapter as amended to 1893 with the amending act noted in the margin. Ch. 10 (assessors and the poll tax), ch. 18 (the general election), ch. 52 (the chapter on free Black Delawareans, omitted from this edition), ch. 74 (marriage), ch. 76 (husband and wife), ch. 77 (parents and children, and the maintenance of bastard children), ch. 78 (guardians and wards), ch. 79 (masters, apprentices, and servants), ch. 81 (aliens), ch. 83 (conveyances), ch. 84 (wills), ch. 85 (intestates' real estate), ch. 87 (dower), ch. 89 (settlement of personal estates, and the register of wills), ch. 96 (the Orphans' Court), ch. 98 (justices' jurisdiction in bastardy cases), ch. 107 (witnesses and evidence), ch. 109 (juries), and ch. 133 (general provisions concerning crimes). Digital images. Internet Archive. https://archive.org/details/revisedstatutes00delagoog (accessed 7 August 2026).

Session Laws

• Laws of the State of Delaware. Vols. 1–72. The session laws, cited by volume and chapter. Each volume covers a session of the General Assembly and special sessions have volumes of their own, so nineteenth-century volume numbers do not map to years at a fixed interval; confirm a chapter's date against the volume itself. From vol. 40 the volumes run biennially: 40 is 1935, 41 is 1937, 42 is 1939, 43 is 1941, 44 is 1943, 45 is 1945, and 46 is 1947. Volumes 10 (sessions from 1845), 11 (from 1853), 12 (from 1861), 14 (1873), 26 (1911), 27 (1913), 30 (1918–19), 32 (1921), 33 (1923), 38 (1933), 41 (1937), and 45 (1945) carry the acts cited in the notes above. Each volume binds several sessions, each with its own title page and imprint, so the imprint for an act is the one on the title page of its own session rather than the one at the front of the volume. Four volumes in the run are split into two separately linked files, 7, 19, 22, and 50, and their file names take a pt_1 or pt_2 suffix; volume 19 carries the sessions of 1891 and 1893, volume 22 those of 1901 and 1903. Follow the links on the eBooks page rather than building a file name by analogy with the volumes on either side: a request for the unsuffixed name returns the state's 404 page as an 887-byte HTML file that still arrives under the .pdf name asked for, so a reader reports it as damaged rather than missing and the volume looks corrupt when it is merely elsewhere. Digital images. Delaware Public Archives. https://archives.delaware.gov/ebooks-pdf/laws-of-delaware/; also https://delaware.contentdm.oclc.org/digital/collection/p15323coll1 (accessed 7 August 2026).
• Laws of the Government of New-Castle, Kent and Sussex upon Delaware. Philadelphia: Printed and sold by B. Franklin, at the New Printing-Office in Market-Street, 1741. The colonial statutes as printed for the Assembly by Benjamin Franklin. A later Franklin & Hall edition followed in 1752 and a two-volume Wilmington edition in 1763. The 1741 edition is the one freely available: the State Library of Pennsylvania has digitized its copy in 179 images, with a page-level transcript and the title page intact. Digital images. State Library of Pennsylvania Digital Collections. https://digitalcollections.statelibrary.pa.gov/Documents/Detail/laws-of-the-government-of-new-castle-kent-and-sussex-upon-delaware/1361883 (accessed 7 August 2026). None of the notes in this guide cite it, because the Adams edition of 1797, below, prints the same colonial statutes alongside the Revolutionary and early state acts that amended them and is the faster route for tracing a rule forward. Reach for the Franklin edition when you want the colonial text as the Assembly itself had it printed.
• Laws of the State of Delaware, from the Fourteenth Day of October, One Thousand Seven Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-Seven. New-Castle: Samuel and John Adams, 1797. 2 vols. The Adams edition, printing the colonial, Revolutionary, and early state acts together in two volumes. Because the Delaware Public Archives run of digitized session laws begins at vol. 10, this is the essential free source for Delaware law before the nineteenth century, and several rules in this guide rest on it: the marriage act of 1790, with the ages of parental consent and the requirement of a licence or banns (vol. 2, pp. 973–74); the colonial intestacy act giving the eldest son a double portion of the land (vol. 1, p. 289, and appendix p. 57); the act of 29 January 1794 abolishing that double portion (vol. 2, p. 1172); and ch. CXLV. b of 1787, "An Act to prevent the exportation of slaves, and for other purposes," whose § 8 set the disabilities of manumitted people and their issue (vol. 2, p. 887). Digital images. Internet Archive Vol. 1, https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_1797_1; vol. 2, https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_1797_2 (accessed 7 August 2026).
• Laws of the State of Delaware, Passed at a Session of the General Assembly [1799]. The annual session volume carrying ch. XXXIX, the act of 1799 admitting free Black witnesses in certain cases, at pp. 80–81. Digital images. Internet Archive https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_delaware_1799 (accessed 7 August 2026).
• Session Laws of Delaware. Full text of each chapter, individually searchable and separately linkable. The coverage reaches back well beyond the modern volumes — vol. 14 (1873), which carries the married women's act cited below, is present in full — so this is often the fastest way to read a nineteenth- or twentieth-century Delaware act without downloading a whole volume. Browse by volume to find a chapter's permanent link. Delaware General Assembly. https://legis.delaware.gov/SessionLaws (accessed 7 August 2026).

Court Cases

• Carlisle v. Parker. 8 W. W. Harr. (38 Del.) 83, 188 A. 67 (Del. Super. Ct. 1936). Full text, CourtListener. https://www.courtlistener.com/opinion/6678062/carlisle-v-parker/ (accessed 7 August 2026).
• Eliason v. Draper. 2 Boyce (25 Del.) 1, 77 A. 572 (1910). Full text, CourtListener. https://www.courtlistener.com/opinion/6676887/eliason-v-draper/ (accessed 7 August 2026).
• Heitz v. Sayers. 2 W. W. Harr. (32 Del.) 207, 121 A. 225 (1923). Full text, CourtListener. https://www.courtlistener.com/opinion/6677622/heitz-v-sayers/ (accessed 7 August 2026).
• Industrial Trust Co. v. Cantera. 5 W. W. Harr. (35 Del.) 364, 165 A. 338 (1933). Full text, CourtListener. https://www.courtlistener.com/opinion/6677905/industrial-trust-co-v-cantera/ (accessed 7 August 2026).
• King v. Cordrey. 6 W. W. Harr. (36 Del.) 418, 177 A. 303 (1935). Full text, CourtListener. https://www.courtlistener.com/opinion/6677980/king-v-cordrey/ (accessed 7 August 2026).
• Moore v. Darby. 6 Del. Ch. 193 (1889). Full text, CourtListener. https://www.courtlistener.com/opinion/6679468/moore-v-darby/ (accessed 7 August 2026).
• State v. Cooper. 3 Harr. 571 (Del. 1842). Full text, CourtListener. https://www.courtlistener.com/opinion/3381576/state-v-cooper/ (accessed 7 August 2026).
• State v. Dillahunt. 3 Harr. 551 (Del. 1840). Full text, CourtListener. https://www.courtlistener.com/opinion/3381422/state-v-dillahunt/ (accessed 7 August 2026).
• State v. Downham. 1 Houston 45 (Del. 1858). Full text, CourtListener. https://www.courtlistener.com/opinion/3381049/state-v-downham/ (accessed 7 August 2026).
• State v. Whitaker. 3 Harr. 549 (Del. 1840). Full text, CourtListener. https://www.courtlistener.com/opinion/3382208/state-v-whitaker/ (accessed 7 August 2026).
• Wallace v. Lewis. 4 Harr. 75 (1843). Reported as Wallace's Lessee v. Lewis. Full text, CourtListener. https://www.courtlistener.com/opinion/3380704/wallaces-lessee-v-lewis/ (accessed 7 August 2026).
• Wilmington Trust Co. v. Hendrixson. 1 W. W. Harr. (31 Del.) 303, 114 A. 215 (1921). Full text, CourtListener. https://www.courtlistener.com/opinion/6677551/wilmington-trust-co-v-hendrixson/ (accessed 7 August 2026).

Secondary and Reference Works

• Blackstone, William. Commentaries on the Laws of England. Bk. 1, ch. 15, "Of Husband and Wife," and bk. 4, ch. 2, "Of the Persons Capable of Committing Crimes." The statement of the English common law Delaware received in 1776: the ages of consent to marriage in the first, the ages of criminal responsibility in the second. Transcription. The Avalon Project, Yale Law School. https://avalon.law.yale.edu/18th_century/blackstone_bk1ch15.asp (accessed 7 August 2026).
• Revised Statutes of the State of Delaware, of Eighteen Hundred and Fifty-two: As They Have Since Been Amended, Together with the Additional Laws of a Public and General Nature, Which Have Been Enacted Since the Publication of the Revised Code of Eighteen Fifty-two, to the Year of Our Lord One Thousand Eight Hundred and Seventy-four. Wilmington: James & Webb, 1874. An intermediate printing of the same Code of 1852, stopping twenty years before the 1893 volume used throughout these notes. It is the quickest way to see the law as it stood in the 1870s — useful, for instance, for checking the married women's acts of 1865 and 1873 in their own period rather than as amended to 1893. Full view, Google Books. https://books.google.com/books?id=GSJEAAAAYAAJ (accessed 7 August 2026). No note in this guide cites it; the description here follows the published catalog record.
• Cooper, Alexander B. "The History of New Castle, Delaware, Under Duke of York, 1664–1682." Sunday Star (Wilmington, Delaware), serialized January–February 1906. Part 4 carries the ordinance of 25 September 1676 by which Governor Andros extended the Duke of York's Laws to the Delaware settlements — the point at which English law reached the three counties. PDF. New Castle Community History and Archaeology Program. https://nc-chap.org/cooper/pdfs/4_Under_the_Duke_of_York_1664-1682.pdf (accessed 7 August 2026).
• Delaware Courts. Official histories of the Superior Court, the Court of Common Pleas, and the Family Court, for the juvenile-court chronology. https://courts.delaware.gov (accessed 7 August 2026).
• Delaware Public Archives. Research guides to county probate, Orphans' Court, land, and apprenticeship records; agency histories of the Juvenile Court for New Castle County and the Juvenile Court for Kent and Sussex Counties, which give each court's jurisdictional limits and dates; and exhibits on slavery, manumission, and the free Black population. https://archives.delaware.gov; and see https://history.delaware.gov (accessed 7 August 2026).
• Eisner, Eric. "Free Black Witnesses in the Antebellum Upper South." Law and History Review 42 (2024): 297. Published online 12 October 2023. Sets out Delaware's unusual toleration of some free Black testimony in cases involving white parties. Cambridge Core. https://www.cambridge.org/core/journals/law-and-history-review/article/free-black-witnesses-in-the-antebellum-upper-south/3E11DE5CD11B13FF36115FF2E342AD29 (accessed 7 August 2026).
• United States. Women's Bureau. The Legal Status of Women in the United States of America: January 1, 1948, Report for Delaware. Bulletin of the Women's Bureau, No. 157-7 (Revised). Washington: U.S. Government Printing Office, 1949. A one-stop digest of Delaware law on majority, minors' contracts, married women's property, dower, curtesy, wills, intestacy, guardianship, marriage, and jury service, with citations to the Revised Code of 1935 and to the session laws of 1937 through 1947. Digital images. FRASER, Federal Reserve Bank of St. Louis. https://fraser.stlouisfed.org/files/docs/publications/women/b0157-07-rev_dolwb_1949.pdf (accessed 7 August 2026).
• University of Delaware. "Black Americans in Delaware: An Overview." The course of slavery and emancipation in the state. https://www1.udel.edu/BlackHistory/overview.html (accessed 7 August 2026).

Citations

1. "Colonial/Pre-Statehood Records," Delaware Public Archives: the colony lay under three nations in succession, Sweden 1638–1655, the Netherlands 1655–1664, and England 1664–1776, the English period dividing into the Duke of York era 1664–1682 and the proprietary era from 1681; and until 1704 the Lower Counties met in assembly with the Pennsylvania counties, so many of Delaware's colonial records sit within the colonial records of Pennsylvania (https://archives.delaware.gov/delaware-agency-histories/colonialprestatehood-records/ : accessed 7 August 2026). ↩ ↩ ↩
2. Alexander B. Cooper, "The History of New Castle, Delaware, Under Duke of York, 1664–1682," part 4, Sunday Star (Wilmington, Delaware), 11 February 1906, reporting the ordinance promulgated by Governor Edmund Andros on 25 September 1676 and quoting its direction that the Duke's book of laws "bee likewise in force, and practiced in this (Delaware) River and Precincts"; PDF, New Castle Community History and Archaeology Program (https://nc-chap.org/cooper/pdfs/4_Under_the_Duke_of_York_1664-1682.pdf : accessed 7 August 2026). For the reception of the common law at statehood, see Del. Const. of 1776, art. 25, cited in the next note. ↩
3. Del. Const. of 1776, art. 25; digital images, ConSource (https://www.consource.org/document/constitution-of-delaware-1776-9-21/ : accessed 7 August 2026). The reception was carried forward by the constitutions of 1792, 1831, and 1897, printed at Delaware Code Online (https://delcode.delaware.gov/constitution/ : accessed 7 August 2026). ↩
4. Laws of the State of Delaware, from the Fourteenth Day of October, One Thousand Seven Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-Seven (New-Castle: Samuel and John Adams, 1797), vol. 2, p. 1172, ch. LIII. c, 1794, "A Supplementary Act to an act intituled, An act for the better settling intestates estates," passed 29 January 1794. The preamble recites that it is the duty and policy of every republican government to preserve equality amongst its citizens by maintaining the balance of property so far as is consistent with the rights of individuals. &Sect; 1: the eldest son, or his lawful issue, of every person thereafter dying intestate within this state "shall have and receive an equal share, or proportion, of the real or landed estate of such intestate, with the other children of such intestate, and no more." &Sect; 2 repeals so much of the former act as directed that the eldest son should have two shares or a double portion. Digital images, Internet Archive (https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_1797_2 : accessed 7 August 2026). ↩ ↩
5. U.S. Const. amend. XIII, passed by Congress 31 January 1865 and ratified 6 December 1865; digital image and transcript, "13th Amendment to the U.S. Constitution: Abolition of Slavery," Milestone Documents, National Archives (https://www.archives.gov/milestone-documents/13th-amendment : accessed 7 August 2026). ↩
6. Revised Statutes of 1893, ch. 10 (assessors), §§ 10–11, p. 108: silver plate to be valued at a dollar and ten cents the ounce, and every freeman above the age of twenty-one to be rated, in addition to his assessment, a poll tax for a capital not exceeding twenty-seven hundred nor less than one hundred and forty dollars; all property, real and personal, to be assessed at its true value in money. The assessment was made hundred by hundred: ch. 10, § 7, p. 108. The full citation is Revised Statutes of the State of Delaware, of Eighteen Hundred and Fifty-Two, as They Have Since Been Amended (Wilmington, Del.: Mercantile Printing Company, 1893); its chapter numbering is that of the Revised Code of 1852, and each chapter is printed as amended to 1893 with the amending act noted in the margin. Digital images, Internet Archive (https://archive.org/details/revisedstatutes00delagoog : accessed 7 August 2026). Later notes cite it in short form; the page number in each is a link to that page image. ↩ ↩ ↩
7. Revised Statutes of 1893, ch. 109, § 2, p. 803. On the assessment list as the basis of the electoral list, see ch. 18 (the general election). ↩ ↩ ↩
8. Revised Statutes of 1893, ch. 74, § 2, pp. 593–94. ↩ ↩ ↩
9. Majority at 21 rests on the common law received under Del. Const. of 1776, art. 25. See King v. Cordrey, 6 W. W. Harr. (36 Del.) 418, 177 A. 303 (1935); and United States Women's Bureau, The Legal Status of Women in the United States of America: January 1, 1948, Report for Delaware, Bulletin of the Women's Bureau, No. 157-7 (Revised) (Washington: U.S. Government Printing Office, 1949), 3; digital images, FRASER, Federal Reserve Bank of St. Louis (https://fraser.stlouisfed.org/files/docs/publications/women/b0157-07-rev_dolwb_1949.pdf : accessed 7 August 2026). ↩
10. King v. Cordrey, 6 W. W. Harr. (36 Del.) 418, as quoted in Legal Status of Women: Delaware, 3. ↩
11. Wallace v. Lewis, 4 Harr. 75 (1843); and see Legal Status of Women: Delaware, 3. ↩
12. 45 Del. Laws, c. 230, § 6, approved 24 April 1945, p. 916, adding to the Revised Code of Delaware, 1935: To Which Are Added the Declaration of Independence, the Constitution of the United States and the Constitution of Delaware (Wilmington, Del.: Star Publishing Co., 1936), § 3688, sec. 31, that the signature, seal, and acknowledgment of a wife under twenty-one to any bond, other obligation, or mortgage binds her and her heirs, executors, and administrators as effectually as if she were of full age; digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_45.pdf : accessed 7 August 2026). The section numbers can be confirmed against the history line printed under each current section at Delaware Code Online, which carries the chain back through Code 1935, Code 1915, and Code 1852. ↩
13. William Blackstone, Commentaries on the Laws of England, bk. 1, ch. 15, "Of Husband and Wife," on want of age as a disability: a boy under fourteen or a girl under twelve who marries contracts a marriage only inchoate and imperfect, which either may disagree to on reaching the age of consent; transcription, The Avalon Project, Yale Law School (https://avalon.law.yale.edu/18th_century/blackstone_bk1ch15.asp : accessed 7 August 2026). This was the law Delaware received under Del. Const. of 1776, art. 25; neither ch. 74 of the Revised Statutes of 1893 nor the marriage-license act of 1913 fixes a minimum marrying age, both setting only the consent ages. ↩
14. 32 Del. Laws, c. 182, § 1, approved 29 April 1921, p. 591, enacting Rev. Code § 2998, sec. 7: no male under the age of eighteen and no female under the age of sixteen shall marry, with parental or guardian's consent required for a male applicant under twenty-one or a female under eighteen, and a judge empowered to consent where the minor has neither; digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_32.pdf : accessed 7 August 2026). Carried forward as Rev. Code of 1935, § 3491, with the parenthood waiver, as digested in Legal Status of Women: Delaware, 9. ↩ ↩ ↩
15. Laws of the State of Delaware, from the Fourteenth Day of October, One Thousand Seven Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-Seven (New-Castle: Samuel and John Adams, 1797), vol. 2, pp. 973–74, ch. CCXI, 1790, "An Act concerning marriages": § 1, the rites of marriage between white persons, inhabitants of this state, not to be celebrated by any person except a minister or preacher of the gospel appointed or ordained according to the rites of his church, or the religious society to which the parties belong, on forfeit of one hundred pounds; § 2, no minister to marry without such licence as the act directs, or before the banns of marriage have been published; § 3, no minister to marry a male under the age of twenty-one or a female under the age of eighteen, or any servant, without the consent of the parent or parents, guardian or guardians, or master or mistress, given personally or signified in writing. Digital images, Internet Archive (https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_1797_2 : accessed 7 August 2026). ↩ ↩ ↩ ↩
16. Revised Statutes of 1893, ch. 74, § 3, p. 594. ↩ ↩
17. Wilmington Trust Co. v. Hendrixson, 1 W. W. Harr. (31 Del.) 303, 325, 114 A. 215 (1921); and see Legal Status of Women: Delaware, 9. ↩
18. Revised Statutes of 1893, analysis of chapters, pp. xii–xiv, which lists under each chapter the acts amending it since 1852. This is how to tell whether a chapter as printed in 1893 still carries its 1852 text. Unamended: ch. 74 (marriage), ch. 78 (guardians and wards), ch. 84 (wills), and ch. 98 (bastardy jurisdiction) — so the marriage, guardianship, wills, and bastardy rules stated in this guide from the 1893 volume are the rules of 1852. Amended: ch. 10 (assessors), ch. 320, vol. 16, and ch. 566, vol. 19; ch. 12 (collectors), ch. 372, vol. 14, and others; ch. 76 (husband and wife), ch. 572, vol. 12, chs. 80 and 550, vol. 14, and ch. 772, vol. 19; ch. 77 (parents and children), ch. 670, vol. 18, ch. 210, vol. 17, and ch. 612, vol. 17; ch. 79 (masters, apprentices, and servants), chs. 378 and 445, vol. 11, chs. 57 and 61, vol. 12, ch. 519, vol. 16, and ch. 211, vol. 17; ch. 81 (aliens), ch. 769, vol. 19, only; ch. 83 (conveyances), chs. 212 and 213, vol. 18, chs. 212 and 617, vol. 17, chs. 130 and 520, vol. 16, ch. 770, vol. 19, and ch. 612, vol. 11; ch. 85 (intestates' real estate), chs. 243 and 512, vol. 11, ch. 476, vol. 12, ch. 27, vol. 13, chs. 216 and 224, vol. 18, and ch. 258, vol. 19; ch. 87 (dower), ch. 170, vol. 15, only; ch. 89 (settlement of personal estates), ch. 314, vol. 12, chs. 132 and 523, vol. 16, and ch. 774, vol. 19; ch. 96 (Orphans' Court), ch. 458, vol. 13, chs. 172 and 470, vol. 15, and ch. 208, vol. 18; ch. 107 (witnesses and evidence), chs. 449 and 598, vol. 11, ch. 30, vol. 13, chs. 536 and 537, vol. 16, and ch. 777, vol. 19; ch. 109 (juries), ch. 558, vol. 14, and ch. 221, vol. 17; and ch. 133 (crimes and punishments), ch. 345, vol. 15, chs. 138 and 551, vol. 16, ch. 236, vol. 18, and ch. 268, vol. 19. Where a chapter carries amendments, check the marginal note beside the section before relying on it for a date before 1893. Digital images, Internet Archive (https://archive.org/details/revisedstatutes00delagoog/page/n18/mode/1up : accessed 7 August 2026). ↩ ↩ ↩ ↩
19. 27 Del. Laws, c. 261, "An Act Concerning Marriages and Marriage Licenses," approved 1913, §§ 1–2, 9, pp. 771–78: no marriage to be solemnized without a license; marriage between paupers, or between a person of sound mind and one insane or idiotic, unlawful and void; ceremony not to be performed within ninety-six hours of issue where both parties are non-residents, or twenty-four hours where one or both reside in the state; and nothing in the act to invalidate an otherwise lawful marriage for want of a license. Digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_27.pdf : accessed 7 August 2026). ↩ ↩ ↩
20. Laws of the State of Delaware, from the Fourteenth Day of October, One Thousand Seven Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-Seven (New-Castle: Samuel and John Adams, 1797), vol. 2, pp. 975–76, ch. CCXI, 1790, "An Act concerning marriages," the licence sections: a bond with good security to be taken before a licence issued, the bonds to be filed of record in the Secretary's office; the President or Commander in Chief permitted to deposit licences with discreet persons in different parts of the state for the ease and convenience of the people, each such person to return the bonds he had taken into the Secretary's office annually in November, on penalty of five pounds; and § 8, the fees for a licence. The editor's note printed with the chapter points to ch. 27. c, §§ 1–2, passed 15 June 1793, fixing the fee for a marriage licence at two dollars for the use of the state and directing the Secretary to perform his duties respecting such licences ex officio. Digital images, Internet Archive (https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_1797_2/page/n390/mode/1up : accessed 7 August 2026). ↩
21. Revised Statutes of 1893, ch. 74, § 5, p. 594. ↩
22. Revised Statutes of 1893, ch. 74, § 1, p. 593. ↩ ↩
23. Revised Statutes of 1893, ch. 74, § 1, p. 594, the bracketed evasion clause added by ch. 640 of the session laws; carried forward as Rev. Code of 1935, § 3485, as digested in Legal Status of Women: Delaware, 10. ↩
24. Rev. Code of 1935, §§ 3485, 3490, with the serological-test requirement added by the act of 1947 (House Bill 42), as digested in Legal Status of Women: Delaware, 9–10. ↩
25. 32 Del. Laws, c. 182, § 1, p. 587, enacting Rev. Code § 2992, sec. 1: a marriage within the forbidden degrees, or between a white person and a Negro or mulatto, is void; every other marriage forbidden by the section is voidable at the instance of the innocent party; and children of void or voidable marriages shall be deemed to be legitimate. Digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_32.pdf : accessed 7 August 2026). The rules as they stood at the end of the period are digested in Legal Status of Women: Delaware, 10. ↩ ↩
26. Revised Statutes of 1893, ch. 74, § 4, p. 594. ↩
27. Laws of the State of Delaware, vol. XII (Wilmington, Del.: Henry Eckel, Printer, 1863), ch. 305, § 11, p. 333, "An Act in relation to free negroes and mulattoes": no free negro or free mulatto shall be entitled to the privilege of voting at elections or of being elected or appointed to any office of trust or profit, or to give evidence against any person, except as is provided in Chapter 107, or to enjoy any other rights of a freeman other than to hold property or to obtain redress in law or in equity for any injury to his or her person or property. digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_12.pdf : accessed 7 August 2026). The rule descends from the manumission act of 1787, § 8: no slave manumitted agreeable to the laws of this state, or made free in consequence of this act, or the issue of any such slave, shall be entitled to the privilege of voting at elections, or of being elected or appointed to any office of trust or profit, or to give evidence against any white person, or to enjoy any other rights of a freeman, other than hold property, and to obtain redress in law and equity for any injury to his or her person. Read in Laws of the State of Delaware, from the Fourteenth Day of October, One Thousand Seven Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-Seven (New-Castle: Samuel and John Adams, 1797), vol. 2, ch. CXLV. b, § 8, p. 887, "An Act to prevent the exportation of slaves, and for other purposes," 1787, the section carrying the marginal heading "Privileges of manumitted slaves and their issue"; digital images, Internet Archive (https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_1797_2 : accessed 7 August 2026). the act begins at p. 884. ↩ ↩ ↩
28. Revised Statutes of 1893, ch. 81, § 1, p. 617. ↩
29. Laws of the State of Delaware, from the Fourteenth Day of October, One Thousand Seven Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-Seven (New-Castle: Samuel and John Adams, 1797), vol. 1, pp. 52–54, "An Act for naturalization," 1700: § 1, the Proprietary and Governor, or his lieutenant for the time being, may by instrument under the broad seal declare any alien or foreigner already settled or inhabiting within the government, or who shall come or reside therein, having first made his solemn engagement or declaration to be true and faithful to the King as Sovereign and to the Proprietary and Governor, to be fully and completely naturalized, such persons to have and enjoy to them and their heirs the same rights and immunities of and unto the laws and privileges of this government as fully as any of the King's natural-born subjects; § 2, the fee for the instrument; and § 4, that all Swedes, Dutch, and other foreigners settled in the province or territories before the date of the King's letters patents to the Proprietary and Governor are deemed and declared fully and completely naturalized, with the same rights to them and their heirs. Digital images, Internet Archive (https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_1797_1/page/n79/mode/1up : accessed 7 August 2026). The printed chapter number is not legible on the scan; the act is identified here by its title, year, and page. It stands between ch. III and ch. VI. a in the colonial series. ↩
30. Rev. Code of 1935, § 3541, as digested in Legal Status of Women: Delaware, 4–5. On its reach, Industrial Trust Co. v. Cantera, 5 W. W. Harr. (35 Del.) 364, 369, 165 A. 338 (1933), and Heitz v. Sayers, 2 W. W. Harr. (32 Del.) 207, 215, 121 A. 225 (1923); on the disabilities that survived it, Eliason v. Draper, 2 Boyce (25 Del.) 1, 4, 77 A. 572 (1910). ↩ ↩ ↩
31. Laws of the State of Delaware, from the Fourteenth Day of October, One Thousand Seven Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-Seven (New-Castle: Samuel and John Adams, 1797), vol. 1, pp. 288–89, ch. CXIX (24 Geo. II), "An Act for the better settling intestates estates": one third part of the lands, tenements, and hereditaments to the widow of the intestate during her natural life, where such widow was not provided for by marriage settlement, and the residue divided by equal portions amongst the children; and, where there were no children or legal representatives of them, one moiety of the real estate to the widow during her natural life, the residue to the brothers and sisters of the deceased. Digital images, Internet Archive (https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_1797_1/page/n315/mode/1up : accessed 7 August 2026). The same act carried the eldest son's double portion, cited below. ↩ ↩ ↩
32. 12 Del. Laws, c. 572, p. 663, "An Act for the Benefit of Married Women," passed at Dover 17 March 1865, § 1: the real estate, mortgages, stocks, and silver plate belonging to any married woman at the time of her marriage, or to which she may become entitled at any time during her coverture, shall remain and continue to be her sole and separate property, not subject to the disposition of her husband by alienation, transfer, assignment, or otherwise, nor liable to his debts or contracts, except judgments recovered against him for her liabilities before marriage; provided that nothing in the section authorizes the wife to sell or otherwise dispose of her real estate, mortgages, stocks, or silver plate without her husband's consent evidenced by writing under his hand and seal, or to create any incumbrance upon her real estate, or to dispose of the rents, issues, and profits thereof; digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_12.pdf#page=682 : accessed 7 August 2026). The chapter appears in the list of acts amending ch. 76 of the Code of 1852, cited below. ↩
33. 14 Del. Laws, c. 550, "An Act for the Protection of Women," passed at Dover 9 April 1873, §§ 1–7, pp. 638–40: the property a woman owns at marriage, or receives afterward from anyone other than her husband, is her sole and separate property, its rents and profits neither at his disposal nor liable for his debts; her wages for labor not performed for the family are her own; and she may sue and defend as if unmarried. Digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_14.pdf : accessed 7 August 2026). Their effect as it stood at the end of the period is stated in Rev. Code of 1935, § 3541. ↩
34. Heitz v. Sayers, 2 W. W. Harr. (32 Del.) 207, 214; Carlisle v. Parker, 8 W. W. Harr. (38 Del.) 83, 188 A. 67, 70 (Del. Super. Ct. 1936); and Moore v. Darby, 6 Del. Ch. 193, 204 (1889); all as digested in Legal Status of Women: Delaware, 5–6. ↩
35. Rev. Code of 1935, § 3545, as digested in Legal Status of Women: Delaware, 4. ↩
36. Rev. Code of 1935, § 3544, as digested in Legal Status of Women: Delaware, 4. ↩
37. Revised Statutes of 1893, ch. 87, § 1, p. 662; carried forward as Rev. Code of 1935, § 3767, as digested in Legal Status of Women: Delaware, 7. ↩
38. Revised Statutes of 1893, ch. 87, § 2, p. 662, providing that the dower sections were not to be taken or construed to affect or destroy any lien or encumbrance existing prior to the passage of the act entitled "An act respecting devises of lands, joint estates and dower," passed at Dover, 16 February 1816. ↩
39. Revised Statutes of 1893, ch. 83, § 4, p. 625. ↩
40. Revised Statutes of 1893, ch. 83, § 5, pp. 625–26. ↩
41. 45 Del. Laws, c. 230, § 1, approved 24 April 1945, p. 913, amending Rev. Code of 1935, § 3661, sec. 4, so that a married woman's deed is valid as if she were sole on her acknowledgment that she executed it, the private examination and the husband's joinder both dropped, the acknowledgment to be taken before the chancellor, any judge, a notary public, or two justices of the peace for the same county; digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_45.pdf : accessed 7 August 2026). ↩
42. Rev. Code of 1935, §§ 4792–4795, as digested in Legal Status of Women: Delaware, 3–4. ↩
43. Wallace v. Lewis, 4 Harr. 75. ↩
44. Revised Statutes of 1893, ch. 107 (of witnesses and evidence), p. 797, and the analysis printed at the head of the chapter: the competency provisions concern witnesses liable to a party for not attending, corporators, special bail, free Black witnesses, and the accused testifying in his own behalf. No section of the chapter fixes an age for a witness, so competency rested on the common-law test of understanding the oath. ↩ ↩
45. Revised Statutes of 1893, ch. 83, § 3, p. 625. ↩
46. Laws of the State of Delaware, from the Fourteenth Day of October, One Thousand Seven Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-Seven (New-Castle: Samuel and John Adams, 1797), vol. 1, p. 289, ch. CXIX (24 Geo. II), "An Act for the better settling intestates estates": the real or landed estate of all the children to be made equal as near as can be estimated, "except the eldest son, or his lawful issue (if any be) who shall have two shares, or a double portion of the whole of the real or landed estate of the said intestate." Digital images, Internet Archive (https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_1797_1 : accessed 7 August 2026). The same double portion appears in the earlier intestacy law printed in the appendix to this volume at p. 57 (A.D. 1721). ↩ ↩
47. Revised Statutes of 1893, ch. 85, § 1, pp. 641–42. ↩ ↩
48. Revised Statutes of 1893, ch. 85, § 2, p. 642. ↩
49. 33 Del. Laws, ch. 212, "Intestate Real Estate," approved 23 March 1923, repealing 3267 Sec. 1 of ch. 94 of the Revised Code of 1915 and substituting a new rule of descent. The new clauses give a surviving husband one-half of the intestate's real estate for life where issue survive and the whole for life where none do, as tenant by the curtesy; a widow the same, as tenant in dower; and, where there is no kin or heir of the intestate, the land to the survivor in fee simple. Note that curtesy is no longer conditioned on a child having been born alive. Laws of Delaware, vol. 33 (99th General Assembly, 1923), digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_33.pdf, image 621 : accessed 8 August 2026). ↩
50. Rev. Code of 1935, § 3731, as digested in Legal Status of Women: Delaware, 7. ↩
51. Revised Statutes of 1893, ch. 89, § 32, p. 678. ↩
52. Rev. Code of 1935, § 3847, as digested in Legal Status of Women: Delaware, 7. ↩
53. 30 Del. Laws, ch. 210, "Settlement of Personal Estates: Distribution of Residue," approved 10 April 1919, p. 568, amending ch. 98 of the Revised Code of 1915 by striking the last proviso of 3382 Sec. 49 and substituting a new one. In substance: a widow takes one-third of the residue absolutely where there is issue; where there is no issue but brothers, sisters, or other kin, she takes the entire residue up to three thousand dollars and one-half of the portion exceeding three thousand dollars, the kin taking the other half; and where there is no kin, the whole. Laws of Delaware, vol. 30 (1918 special session and 97th General Assembly, 1919), digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_30.pdf, image 579 : accessed 8 August 2026). ↩
54. 22 Del. Laws, ch. 446, "Of the Settlement of Personal Estates," "An Act in Relation to Advancements Made by Intestates in Their Life Time," approved 24 March 1903, pp. 960–61. Sec. 1 requires that an advancement of real or personal property to a child, or to the issue of a child, be accounted according to its value as part or the whole of that child's share in the distribution of the personal estate; sec. 2 leaves the partition provision at ch. 85, sec. 6 of the Revised Code untouched except where the advancement has already been fully accounted for in the personal distribution; sec. 3 applies the act to administrations then pending. The only other act in the four sessions of vols. 19 and 22 to touch either chapter is 19 Del. Laws, ch. 773, "Of Intestates Real Estate," passed 2 May 1893, p. 1119, which strikes the words "in the same proportions by which they hold such intestate real estate" from sec. 29 of ch. 85 and does not disturb the shares themselves. Laws of Delaware, vol. 22, pt. 2 (1903), digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_22_pt_2.pdf : accessed 10 August 2026). ↩
55. Rev. Code of 1935, § 3828, as digested in Legal Status of Women: Delaware, 8. ↩
56. Rev. Code of 1935, § 3876, with the six-month claim period added by the act of 1941 at p. 950 of that session's laws, as digested in Legal Status of Women: Delaware, 8. ↩
57. Rev. Code of 1935, §§ 3771–3774, as digested in Legal Status of Women: Delaware, 8–9; the same election appears in the earlier law at Revised Statutes of 1893, ch. 87, §§ 5–8, pp. 662–63. ↩
58. Rev. Code of 1935, §§ 3769, 3775, as digested in Legal Status of Women: Delaware, 7–8. ↩
59. Revised Statutes of 1893, ch. 96, § 9, p. 714, the guardian's bond conditioned on rendering just and true accounts and on delivering the minor's property when the guardianship ends; and see ch. 78 (guardians and wards), p. 606. ↩
60. Revised Statutes of 1893, ch. 96, § 8, p. 713; and, for the later rule giving the power to the sole surviving parent, Rev. Code of 1935, § 4424, as digested in Legal Status of Women: Delaware, 12. ↩
61. Revised Statutes of 1893, ch. 96, §§ 7–8, pp. 713–14. ↩
62. Revised Statutes of 1893, ch. 96, § 7, p. 713, guardianship continuing for males to 21 and for females to 21 or marriage, with the proviso limiting guardianship of the person of a female minor to her marriage. ↩
63. Laws of the State of Delaware, vol. XI, ch. 243, § 1, p. 255, "An Act in relation to Illegitimate Children," passed at Dover 26 February 1855; the property of an illegitimate person dying intestate and without lawful issue passes to the mother, and on her death to her lawful issue share and share alike; digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_11.pdf : accessed 7 August 2026). Re-enacted, with her heirs substituted for her lawful issue, by 32 Del. Laws, c. 184, § 7 (1921), and carried forward as Rev. Code of 1935, § 3573, as digested in Legal Status of Women: Delaware, 13. ↩
64. 32 Del. Laws, c. 184, § 7, approved 31 March 1921, p. 604, enacting Rev. Code § 3087, sec. 27: a child conceived out of wedlock is legitimate if the parents intermarry before the birth, or intermarry after adjudication or acknowledgment of parentage following the birth, or upon acknowledgment of paternity made in writing by both parents, or by the father if the mother is not living, and filed in the Prothonotary's office — the chief clerk's office of the county court — in any county; but a child legitimated solely by such acknowledgment does not inherit from the father. Digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_32.pdf : accessed 7 August 2026). ↩
65. Revised Statutes of 1893, ch. 77, §§ 3–7, pp. 602–03, the father bound while the child was under ten as the section stood amended. Raised to sixteen by 32 Del. Laws, c. 184, § 1, approved 31 March 1921, p. 601, enacting Rev. Code § 3072, sec. 12; digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_32.pdf : accessed 7 August 2026). For the position at the end of the period, Rev. Code of 1935, §§ 3527, 3558, 3559, 3563, 3572, as digested in Legal Status of Women: Delaware, 12–13. ↩
66. Revised Statutes of 1893, ch. 84, § 2, p. 635. The compiler's note points to the act allowing a married woman to make a will, published as an additional act to ch. 76. ↩
67. 45 Del. Laws, c. 233, approved 18 April 1945, p. 920, amending Rev. Code of 1935, ch. 93, § 3704, sec. 2: any person of the age of eighteen years or upwards, of sound and disposing mind and memory, may make a will of real as well as personal estate, and no person under eighteen is capable of making one; digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_45.pdf : accessed 7 August 2026). ↩
68. Revised Statutes of 1893, ch. 84, § 3, pp. 635–36. ↩
69. Revised Statutes of 1893, ch. 84, § 4, p. 636. ↩
70. Revised Statutes of 1893, ch. 84, § 5, p. 636. ↩
71. Revised Statutes of 1893, ch. 89, § 1, p. 668. ↩
72. Revised Statutes of 1893, ch. 89, §§ 5, 7, p. 669. ↩
73. Revised Statutes of 1893, ch. 89, § 5, p. 669, letters may be granted to a married woman; and Rev. Code of 1935, §§ 3546, 3804, 3813, as digested in Legal Status of Women: Delaware, 4–5. ↩
74. Laws of the State of Delaware, from the Fourteenth Day of October, One Thousand Seven Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-Seven (New-Castle: Samuel and John Adams, 1797), vol. 1, pp. 257–61, ch. CII (16 Geo. II), "An Act for raising county-rates and levies," which recites that money must be raised yearly to defray the public charges of the respective counties and sets up the machinery for doing it: the freeholders and inhabitants of each county qualified to elect and be elected members of Assembly to choose, on the first day of October each year, one substantial freeholder for every hundred to be the assessor for the ensuing year. This is the earliest county-rates act in the Adams collection of the colonial statutes; the collection prints none earlier. Digital images, Internet Archive (https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_1797_1/page/n283/mode/1up : accessed 7 August 2026). ↩
75. Laws of the State of Delaware, from the Fourteenth Day of October, One Thousand Seven Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-Seven (New-Castle: Samuel and John Adams, 1797), vol. 1, p. 261, ch. CII (16 Geo. II, 1742/43), "An Act for raising county rates and levies," § 5: the assessors to inform themselves what persons and estates in their respective counties are rateable by virtue of the act, and to assess themselves and all others equally and impartially, exempting all unsettled tracts or parcels of land, and having due regard to such as are poor and have a charge of children, the poorer sort of such not to be rated under eight pounds; "and no single man, who at any time of assessment is under twenty-one years of age, or hath not been out of his servitude or apprenticeship six months, shall be rated by this act; and as to those single men who have no visible estates, they shall not be rated under Twelve Pounds, nor above Twenty-four Pounds." Digital images, Internet Archive (https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_1797_1 : accessed 7 August 2026). ↩
76. Laws of the State of Delaware, from the Fourteenth Day of October, One Thousand Seven Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-Seven (New-Castle: Samuel and John Adams, 1797), vol. 1, p. 261, marginal note to ch. CII: "See an act directing the choice of assessors, and for the amendment of this act for raising county rates and levies, chap. 187. a. passed November 1, 1766." The 1766 act altered the choosing of assessors — balloted for annually on 15 September in each hundred — and did not disturb the rating age. Digital images, Internet Archive (https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_1797_1 : accessed 7 August 2026). ↩
77. Three statutes across two centuries state the liability as a floor with no ceiling. Laws of the State of Delaware (New-Castle: Samuel and John Adams, 1797), vol. 1, p. 261, ch. CII (16 Geo. II, 1742/43), § 5, excuses "no single man, who at any time of assessment is under twenty-one years of age." Revised Statutes of 1893, ch. 10, § 10, p. 108, rates "every freeman above the age of twenty-one." And 21 Del. Laws, ch. 23, §§ 1–2, approved 21 April 1898, directs the Levy Courts to assess a capitation tax upon each and every male citizen "of the age of twenty-one years or upwards" whose name appears on the assessment books; Delaware General Assembly (https://legis.delaware.gov/SessionLaws/Chapter?id=40635 : accessed 7 August 2026). The relief that did exist was granted for want of means and health rather than for age, and is set out below. ↩
78. Revised Statutes of 1893, ch. 12 (of collectors), p. 122, the additional act printed from ch. 372, vol. 14: where the collector had attended for at least five hours a day for at least three days, the Levy Court was to allow the uncollected taxes as delinquencies, the delinquents' names to be dropped from the assessment list and not placed on it again for one year, the provision applying to persons assessed and liable to pay poll tax only. ↩
79. Laws of the State of Delaware, vol. XXX (Wilmington, Del.: The Star Publishing Co., 1919), ch. 79, p. 184, amending ch. 79 of vol. 28: it shall not be compulsory for the Board of Assessment to levy a capitation tax on any dependent person financially unable to pay said tax and physically unable to earn a livelihood, if after application is made in behalf of such person an investigation should convince the Board of Assessment that such person should be exempt; approved 20 March 1919. Digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_30.pdf : accessed 7 August 2026). ↩
80. Laws of the State of Delaware, from the Fourteenth Day of October, One Thousand Seven Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-Seven (New-Castle: Samuel and John Adams, 1797), vol. 1, pp. 241–43, ch. XCIV. a (15 Geo. II), "An Act directing and impowering the several Sheriffs within this government, to summon a sufficient number of freeholders to serve as jurors in the several counties thereof": § 1, on a writ of venire facias for a Court of Oyer and Terminer the sheriff to summon twenty-four of the most able, sufficient, and substantial freeholders of his bailiwick to serve as grand jurors and forty-eight of the most discreet and judicious freeholders to serve as petty jurors, summoned at least ten days before the day appointed for holding the court; § 2, a penalty on a sheriff returning any person not in fact summoned; and, for the Court of Quarter Sessions, twenty-four able, discreet, and judicious freeholders, legal men and inhabitants of the bailiwick, likewise ten days beforehand. The editors' note at p. 241 points to ch. 8. c, 2 February 1793, "An act for more certainly obtaining returns of impartial juries, and their better regulation," directing sheriffs to summon and return, for the trial of all issues in civil and criminal causes, not fewer than thirty-six nor more than sixty — and, without the special direction of two judges, not exceeding eighty-four — sober and judicious persons of fair character, and none other, the summoning to be in writing at least ten days before the return day of the writ, with a panel annexed containing their Christian and surnames, additions, and places of abode. Digital images, Internet Archive (https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_1797_1/page/n267/mode/1up : accessed 7 August 2026). ↩
81. Revised Statutes of 1893, ch. 109, § 1, p. 803; carried forward as Rev. Code of 1935, § 4721, as digested in Legal Status of Women: Delaware, 13. ↩
82. 33 Del. Laws, c. 237, p. 679, "An Act Excusing Women from Jury Duty in this State when they so request," approved 2 March 1923: whenever any woman shall be drawn to serve upon a grand or petit jury in this State, she shall, if she shall so request, be excused from serving thereon, the provision applying to both grand and petit juries; digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_33.pdf : accessed 7 August 2026). Repealed in 1945 by the act cited next. ↩
83. 45 Del. Laws, c. 253, approved 18 April 1945, p. 968, an act to repeal ch. 237 of vol. 33, Laws of Delaware, excusing women from jury duty; digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_45.pdf : accessed 7 August 2026). Black men became eligible as voters under U.S. Const. amend. XV (1870). ↩
84. William Blackstone, Commentaries on the Laws of England, bk. 4, ch. 2, "Of the Persons Capable of Committing Crimes," on the age of discretion: no capacity under seven, a presumption of incapacity from seven to fourteen that proof of the child's understanding could overcome, and full responsibility from fourteen; transcription, The Avalon Project, Yale Law School (https://avalon.law.yale.edu/18th_century/blackstone_bk4ch2.asp : accessed 7 August 2026). This was the law Delaware received under Del. Const. of 1776, art. 25. ↩
85. Revised Statutes of 1893, ch. 133, § 1, p. 975. The common-law ages themselves — under 7 no capacity, 7 to 14 a rebuttable presumption, 14 full responsibility — governed under the reception in Del. Const. of 1776, art. 25. ↩
86. Laws of the State of Delaware, vol. XXVI (Wilmington, Del.: The Star Printing Co., 1911), ch. 262, §§ 1–2, pp. 709–10, "An Act providing for a Juvenile Court for the City of Wilmington and Defining its Powers with reference to the Care, Treatment and Control of Delinquent, Incorrigible and Dependent Children"; approved 4 April 1911. Digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_26.pdf : accessed 7 August 2026). ↩ ↩
87. 33 Del. Laws, ch. 227, p. 657, "An Act to Amend Chapter 116, of the Revised Code of the State of Delaware, 1915, Extending the Jurisdiction of the Juvenile Court to New Castle County, and Giving Authority to the Justices of the Peace and the Court of General Session of Kent County and Sussex County to Remand to the Juvenile Court of New Castle County Juveniles Coming Under Their Jurisdiction"; the amended section creates a special court for the City of Wilmington and New Castle County. Laws of the State of Delaware, vol. XXXIII (Wilmington, Del.: Press of the Mercantile Printing Co., [1923]). Digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_33.pdf : accessed 7 August 2026). ↩
88. 38 Del. Laws, c. 197, approved 2 May 1933 and effective 1 July 1933, amending ch. 116 of the Revised Code to create the Juvenile Court of Kent and Sussex Counties with sole and exclusive jurisdiction in those counties over cases relating to children, the judge of the Court of Common Pleas for Kent County sitting ex officio; digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_38.pdf : accessed 7 August 2026). ↩
89. Laws of the State of Delaware, vol. XLI (Wilmington, Del.: William E. Taylor, Inc., 1937), ch. 205, § 1, pp. 649–50, approved 17 May 1937, vesting the exclusive legal jurisdiction relating to children in the Juvenile Court for the City of Wilmington and New Castle County and in the Juvenile Court for Kent and Sussex Counties, and providing that neither court shall have probate jurisdiction; Delaware General Assembly (https://legis.delaware.gov/SessionLaws/Chapter?id=35695 : accessed 7 August 2026). On capital felonies remaining with the adult courts, 26 Del. Laws, c. 262, § 9, p. 715 (1911): nothing in the act "shall be construed to deprive such Justice of the Peace or such Police Magistrate or Municipal Judge or Court of Oyer and Terminer, of jurisdiction such as now exists in cases where the child is held upon the charge of having committed a capital felony." digital images, Delaware Public Archives (https://archivesfiles.delaware.gov/laws-of-de/vol_41.pdf : accessed 7 August 2026). ↩ ↩
90. Rev. Code of 1935, § 4691, as digested in Legal Status of Women: Delaware, 7. ↩
91. Revised Statutes of 1893, ch. 77, § 15, p. 605. Justices' jurisdiction in bastardy cases is separately treated at ch. 98, p. 776. ↩
92. Laws of the State of Delaware, Passed at a Session of the General Assembly [1799], ch. XXXIX, pp. 80–81, "An Act to allow free black persons and free mulattoes in certain cases to give testimony in Courts of Justice," passed at Dover 1 February 1799. The preamble recites that great injustice and many inconveniences have heretofore arisen from free black persons and free mulattoes not being allowed to give testimony in Courts of Justice; the enacting clause reaches all criminal prosecutions where it shall appear to the Court that no white person or persons competent to give testimony was or were present at the time when the fact charged is alleged to have been committed, or where such white persons who were present have since died, or are absent from the State and cannot be produced as witnesses, and admits the free Black witness in the same manner and under the same circumstances that white persons may then be allowed to give testimony; the proviso bars such testimony against any white man to charge him with being the father or reputed father of any bastard child. Digital images, Internet Archive (https://archive.org/details/bim_eighteenth-century_laws-of-the-state-of-del_delaware_1799 : accessed 7 August 2026). The exception was carried into the Revised Code as ch. 107, the chapter on witnesses and evidence, which is how the act of 1863 refers to it. ↩
93. State v. Whitaker, 3 Harr. 549, 549–51 (Del. 1840), rejecting the argument that a white accomplice present in court was a competent witness within the act. ↩
94. State v. Cooper, 3 Harr. 571, 571, 575–76 (Del. 1842), where one white bystander was drunk and the other had not seen the whole of the fight. ↩
95. State v. Dillahunt, 3 Harr. 551, 551 (Del. 1840), the witness not proved free but proved to have acted as free; at common law there was always a strong presumption in favor of freedom. ↩
96. State v. Downham, 1 Houston 45, 49–50 (Del. 1858). ↩

Note: This law guide was created with assistance from multiple AI tools. Though a diligent effort was made to ensure the accuracy of the information provided, there may be unintentional errors. It's important to check the primary sources as needed to ensure accuracy.