The government of Delaware

Preface

This book has been prepared to meet the needs of the classes in Civics in our Delaware schools, and of that large proportion of our citizens who desire an intimate knowledge of Delaware government. Ample provision has been made to secure the teaching of national government in the schools, and the books, newspapers, and magazines of the day bring the scheme of our central government to the people in general. It seems a paradox, and yet it is true, that as a rule a citizen knows more of the national government, with which he may never come in actual contact, than he does of his own State, county, and local government, with which he comes in contact almost daily.

It is difficult to secure a correct and adequate conception of our State government, as the data are hidden in many volumes of the law. My aim has been to present the entire scheme of government as exercised in this State : the legislative, executive, and judicial functions of the State, the county government, the government of incorporated towns and cities, and the local government in the Representative district.

Every effort has been made to secure accuracy and clearness. At the risk of repetition, I have discussed several important topics at more than one place, though in different aspects. I have endeavored to make my style and manner of presentation such that the pupils in the high schools and in the upper classes of our ungraded

6 PREFACE

schools may use the book intelligently. If the mature reader finds lengthy explanations and a simple style, it is because I have endeavored to appeal primarily to the immature minds of pupils. Endeavor has been made to condense the subject-matter, but at no place have comprehensiveness and clearness been sacrificed for brevity. I venture to make a few suggestions which may be helpful to some teachers.

I. It will generally be found most productive of good results to teach Delaware government prior to United States government. The first half of the year may be devoted to State government and the latter half to national government.

II. In the high schools and in classes of fairly mature students the whole book should be used for class work. In the ungraded schools the teacher must use discretion in determining on which parts to lay most stress. In ungraded schools it would be inadvisable to spend much time on the chapter on Wilmington City Government.

III. In general the subject-matter should be taken up in the order in which it appears. This arrangement is logical and carries the pupil from the comparatively simple local government to the more complex State government.

IV. The topics in a chapter on which stress is to be laid must be determined by the teacher. All useless matter has been kept out of the text, but it is evident that not all topics are of equal importance. The jurisdiction of the various courts in the chapter on the Delaware Courts can be stated more briefly by the teacher for younger students.

V. The teacher can infuse much interest into the work by applying concretely to the local government the principles and facts stated in the text. The study of Civics

PREFACE 7

is without value if it does not enable the pupil accurately and clearly to comprehend the actual government of the district, town, county, and State.

I wish to acknowledge my indebtedness to the many State, county, and local officers who answered my repeated inquiries with uniform courtesy. My thanks are due to Henry C. Conrad, Esq., David C. Rose, Esq., Chief Justice Charles B. Lore, Judge William H. Boyce, Judge James Pennewill, Dr. George W. Marshall, Dr. George A. Harter, Charles B. Evans, Esq., and to Superintendents J. E. Carroll and John D. Brooks, for valuable suggestions and for reading parts of the manuscript. To Hon. L. Irving Handy and to Superintendent A. R. Spaid I am especially indebted for their careful and intelligent criticism of the entire manuscript, and to Dr. W. Owen Sypherd for his aid in correcting the proofs. These gentlemen are not responsible for any errors the book may contain ; but without their aid, this book could not have

been written.

GEORGE S. MESSERSMITH.

Newark, Delaware.

Contents

CHAPTER PAGE

I. Delaware Government Prior to 1897 ... 9

LOCAL GOVERNMENT II. The Representative District as a Local Unit

Chapter I Delaware Government Prior To 1897

The Aborigines. — At the time when colonies were being formed in the New World, that part of the continent of North America which is now included within the limits of Delaware was inhabited by roving tribes of Indians. The Delaware or Lenape Indians were in the upper part of New Castle county, and had one of their important council houses near the present site of Wilmington. Several tribes of the Minquas also frequented the upper part of the State. The greater part of the peninsula was held by the Nanticoke Indians. The Accomac Indians occupied the lower part of the peninsula.

The Indians on this peninsula were fishing Indians, in marked contrast with the Indians in other parts of the East, who were hunting Indians. As such they were not so fierce as the hunting Indians. They had also been conquered by the Five Nations, and made " squaws " ; that is, they were forbidden to make war.

The Swedish and Quaker settlers in Delaware were fortunate in settling among peaceable Indians ; the early history of our State is therefore remarkably free from the

10 INTRODUCTORY

stories of strife and massacre which form so large a part of the early history of some of the other colonies.

Settlement of Delaware. — In 163 1 an expedition was sent out from Holland under the control of David Pietersen de Vries of Hoorn, an experienced Dutch sailor and soldier. The expedition consisted of one ship of war, the Walvis, or Whale, a ship of eighteen guns, and a smaller vessel which carried the settlers and the implements necessary to begin a settlement. It seems likely that De Vries did not accompany this expedition himself, but gave it into the care of Peter Heyes. They came up Delaware Bay and sailed up to a small stream which they called the Hoornekill, after the town of Hoorn, the home of the patron of the expedition, De Vries. On this stream a settlement was made in 163 1 near what is now Lewes, and was named Zwaanendael, or " Valley of Swans," because the colonists found many wild fowl along the creek. The same year Captain Heyes left for Holland, and in his absence the settlers treated the Indians with unusual harshness ; in return the Indians killed or carried away all the settlers and burned the fort and the homes which had been erected. Thus was wiped out the first settlement in Delaware. De Vries visited the place in 1632, but found nothing but the bones of the settlers and their cattle, and the blackened and charred ruins of the fort and the houses. Discouraged, he returned to Holland.

William Usselincx, as early as 1590, had proposed the formation of a Dutch West India Company, and in 1624 he petitioned Gustavus Adolphus, King of Sweden, to form a company, saying that it would spread the Protestant faith for which he was fighting and would bring money into the royal treasury. Gustavus Adolphus readily organized such a company, but his time was then taken up by his wars

DELAWARE GOVERNMENT PRIOR TO 1897 II

with Germany and the Poles, and he could not " give laws to two worlds at once." The affairs of the company did not prosper. After Gustavus Adolphus was killed at the battle of Liitzen in 1632, Oxenstiern persuaded Queen Christina, who succeeded Adolphus, to revive the company. The Queen took an interest in the plan, and Peter Menewe, or Minuit, as he is better known, was called to make plans for settling the New World. Peter Minuit had been Governor of the Dutch colony of New Amsterdam, but not being well liked, and being dissatisfied with his treatment by the Dutch, he returned to Europe. Minuit was very glad to aid the Swedes in their enterprise, for he felt that he could in a measure secure revenge ; then, too, he was truly interested in the new lands of America.

By 1637 an expedition was fitted out, chiefly under the direction of Minuit. Two ships, the Key of Kalmar and the Bird Griffin, carried the settlers and their goods. Early in 1638 the ships arrived in Delaware bay, and the first landing, by a strange chance, was made near Lewes, only a few miles away from the unfortunate settlement founded by De Vries. After resting here on land for a few days, the new settlers went on board their ships again and sailed up the bay about eighty miles. They then sailed a short distance up a creek which they called the Christina, after the Queen of Sweden. Here they built a fort which they named Fort Christina, and then started the first town in Delaware, called Christianaham or Christina harbor. Minuit bought the land from the Minquas Indians and named the country New Sweden.

As soon as the Dutch at New Amsterdam heard of the new colony, Governor Kieft protested and sent word to Minuit to leave. Minuit did not heed this request, but instead set out for Sweden to bring more colonists and

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supplies. On his voyage back he left his own ship, the Key of Kalmar, to visit a friend on The Flying Deer. In a storm this ship went down. The colony being thus deprived of Minuit's services, Peter Hollender was chosen to succeed him ; he in turn was succeeded by John Printz. Printz brought many new colonists with him, among them the celebrated Campanius, who did much for religion in New Sweden and whose journal or diary is the source of much information as to the early history of the colony. Governor Printz was in constant conflict with the Dutch, who had a fort on the other side of the Delaware and who in 1654 crossed and built Fort Casimir near what is now New Castle. In order to secure aid to drive out the Dutch, Printz went back to Sweden, and while he was gone John. Pappegoya acted as Governor. John Claude Rysing was then appointed Governor, and on his arrival at New Sweden in 1654 he sent Sven Schute to take Fort Casimir. The Dutch were unprepared, and Schute was successful. When Peter Stuyvesant, the new Dutch Governor at New Amsterdam, heard of this capture he set out with a force of about seven hundred men and retook Fort Casimir without firing. a gun (1654). Then he marched against Fort Christina and compelled Governor Rysing to surrender. The Swedes who swore allegiance to the Dutch government were left in possession of their lands ; the rest were taken to New Amsterdam. Thus New Sweden was no more.

The Dutch ruled the colony until 1664, when Charles the Second of England granted all the lands between the Connecticut river on the north and Delaware bay on the south to James, Duke of York. The Duke of York at once sent a fleet to America to take possession of New Amsterdam, which he renamed New York, and on Sep-

DELAWARE GOVERNMENT PRIOR TO 1897 13

tember 30, 1664, the Dutch settlements on the Delaware were surrendered to the English. Thus ended the Dutch rule on the Delaware. The colony was now governed from New York.

In 1 68 1, Charles the Second granted to William Penn, an English Quaker, as payment for a debt, a large tract of land in America. This tract the King called Pennsylvania. By another grant from the Duke of York, Penn was given part of the land now included in the State of Delaware. On October 27, 1682, Penn himself landed at New Castle and formally took possession of New Castle county, and shortly after of the two lower counties. The name Whorekill county was changed to Sussex county, and St. Jones county was changed to Kent county. The three counties were known as " The Three Lower Counties on the Delaware." They were governed together with Pennsylvania under Penn's plan of government, the " Great Law." Each county was represented in the two houses of the Assembly provided for in Penn's " Great Law," and they had one Governor in common with Pennsylvania, appointed by Penn.

" The Three Lower Counties on the Delaware " prospered, but they had constant trouble with the other counties of the province of Pennsylvania. In 1704, therefore, the members of the Assembly from the three lower counties seceded and formed an Assembly of their own, holding their meetings at New Castle. Penn reluctantly agreed to this plan. Thus from 1704 to 1776, when Delaware became a separate State, the three lower counties had a separate Assembly, but they had the same Governor as the rest of the province of Pennsylvania and remained in name a part of that province. Such was the government up to the stormy days of 1776.

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The First Constitution ; Delaware as a Separate State. —

On May 15, 1776, the Continental Congress at Philadelphia passed a resolution favoring the formation of a separate government in each colony. The Assembly of " The Three Lower Counties," in accordance with this resolution, authorized an election for members of a convention which was to form a constitution. This convention met at New Castle, August 27, 1776, and completed its work by September 21 of that year.

The constitution declared " The Three Lower Counties " a separate State, now to be known as " The Delaware State." The highest officer was the " President or Chief Magistrate," who was chosen by joint ballot of both branches of the Assembly for a term of three years. He was aided by a Privy Council composed of four members, two of whom were chosen by each branch of the General Assembly.

The lawmaking power was granted to a General Assembly, composed of two houses. The lower house was called the House of Assembly, and was composed of seven members from each county, chosen by the freeholders for one year. The upper house was called the Council and was composed of three members from each county, chosen by the freeholders for a term of three years.

The constitution contained thirty articles. The twentysixth is worthy of special note :

Art. 26. " No person hereafter imported into this State from Africa ought to be held in slavery on any pretense whatever, and no negro, Indian, or mulatto slave ought to be brought into this State for sale from any part of the world."

This constitution was much criticised, but Delaware was governed under it during the Revolution and up to 1792.

DELAWARE GOVERNMENT PRIOR TO 1897 15

Delaware took an active part in the War of the American Revolution. Although there were many Tories in some parts of the State, the people on the whole were devoted patriots and suffered and fought for their rights ; considering the size of the State, Delaware furnished a large number of soldiers for the patriot armies. Some of her soldiers and statesmen rendered great service to the cause of liberty. The Delaware members of the Constitutional Convention which met in Philadelphia in 1787 to form a government for the now independent colonies, took a prominent part in framing the Constitution of the United States. Delaware was the first State to ratify this Constitution, doing so on December 7, 1787, thus aiding very much the speedy ratification by other States.

Constitution of 1792. — The General Assembly on September 8, 1 791, passed a resolution calling a constitutional convention to form a new State constitution. The convention met in Dover, November 29, 1791, and completed the new constitution on June 12, 1792.

The new constitution provided for a chief executive who was called the Governor. He was chosen by the people for a term of three years. He had much larger powers than the " President " under the constitution of 1776. The new constitution did not provide for a Privy Council.

The lawmaking power was granted to a Senate and a House of Representatives. The Senate had nine members, three from each county, and the House of Representatives twenty-one members, seven from each county.

The new constitution contained more detailed provisions for the establishing of courts. This constitution was in effect until 183 r.

During the War of 18 12 Delaware did her duty to the Union. The whole State was aroused by the outrages

1 6 INTRODUCTORY

committed by England, and meetings were held all over the State supporting the attitude of the government. The British fleets in the bay kept the people of Delaware ever on the watch, and some towns suffered from British raids. Money and soldiers were freely raised for defense.

Revised Constitution of 1831. — Some time before 183 1 the people felt that a change should be made in the judiciary system of the State. At the election in October, 1830, the people voted to revise the old constitution, and the new convention completed its work December 2, 1831. Delaware was governed under this new constitution until 1897.

Delaware took an active part in the Civil War, and although she had large slave interests in the lower counties, the people on the whole were loyal to the Union and sent a liberal share of soldiers to the Union armies. Sentiment, however, was divided, and many young Delawareans went south and joined the Confederate Army.

Proposed Constitutions. — In 185 1 an attempt was made to form a new constitution. A new constitution was duly made by a convention, but it was rejected by the people in 1853. In 1882 changes were, again proposed but were not adopted.

Constitution of 1897. — The constitutions of Delaware thus far had all been Federal, that is, their provisions were pervaded with the idea that too much power must not be given to the people. It was felt that a change was necessary ; so a constitutional convention was called, which completed its work on June 4, 1897. The constitution of 1897 is the one now in force. The succeeding chapters will explain the government of Delaware under this constitution and the statute law made by the General Assembly in accordance with it.

DELAWARE GOVERNMENT PRIOR TO 1897 1 7

SUPPLEMENTARY QUESTIONS

1. Discuss the manners and customs of the Indians who lived in Delaware.

2. Give the story explaining how Delaware was separated from Pennsylvania.

3. What part did Delaware take in the American Revolution ?

4. What important event took place at Cooch's bridge in the Revolution ?

5. Discuss the British ravages along the shore of Delaware bay during the Revolution.

7. What part did Delaware take in the War of 181 2 ?

8. What was Delaware's attitude on the slavery question ?

9. What part did Delaware take in the Civil War ?

10. What part did Delaware take in the Spanish-American War ?

11. What public questions are now before the people of Delaware ?

GOV. OF DEL.

Chapter II The Representative District As A Local Unit Of Government

Up to the formation of the constitution of 1897 each county in Delaware was divided, for the purpose of local administration and government, and for the assessing and collecting of taxes, into districts known as " hundreds." Up to 1824 Maryland counties also were divided into hundreds. Delaware was for a long time the only State in which this division, the hundred, still remained the unit of local administration. In the New England States the unit of local government is the " town" ; in Tennessee, the " civil district," and in most of the other States, the "township."

By the constitution of 1897, Delaware was divided into thirty-five Representative districts, of which fifteen are in New Castle county, ten in Kent county, and ten in Sussex county. In New Castle county, Wilmington hundred was divided into five Representative districts, and each of the other ten hundreds was made a Representative district ; hence in this county the boundary lines of the old hundred now mark the limits of the Representative district. In Kent and Sussex counties less heed was given to the old hundred lines, and while in some cases a hundred may be a Representative district,- in more cases a Representative district comprises part of one, two, or three of the old hundreds.

For real purposes of government the hundred no longer exists ; its place has been taken by the Representative district. Instead of saying that each county has so many hundreds, we say now that it has so many Representative districts.

The limits of the Representative districts are carefully outlined in Article II, Section 2, of the constitution. In New Castle county the five Representative districts in Wilmington are numbered from one to five ; the ten rural districts, from six to fifteen. In Kent and in Sussex county the districts are numbered from one to ten. Although the hundred was really abolished by the constitution, not in so many words, but through the new division into Representative districts, yet the name is one so familiar and so woven into our law that it will be many years before men will cease to speak of the hundred.

Origin of the Hundred. — Men in all times have organized themselves in some way for the purpose of government. Even in the earliest times we learn that the family was the unit ; a number of families, usually related by blood, formed a clan ; and a number of clans bound together by some common tie formed a tribe.

The Roman people for the purpose of government were divided into clans, curies, and tribes. The curia for military purposes was called a century, for it was supposed to be able to provide one hundred armed men to serve in the army in time of need. Our ancestors who wandered in the forests of Germany and Britain had a similar form of government. Among them grew up a local division of the land, the people living in which were supposed to be able to send one hundred men to war in case of need. Each hundred had its officers, was the unit in the raising of taxes, and had its own courts. The need for the hundred soon died out ;

it was at its height about the tenth century,- and in the thirteenth was in its decline. The county and the township began to take for themselves the powers of the hundred, and at the time the English came to America it had ceased to be of any importance except as a local division.

It seems strange, therefore, that the English settlers in Delaware and Maryland should have revived the hundred ; but it served as the unit of government from almost the earliest days of our State's history down to 1897. The county has now been given most of the powers enjoyed by the old hundred.

Officers of the Representative District. — The Representative district is now little more than a division. Its officers are few, and most of them are appointed either by the Levy Court Commissioners, by the Courts, or by the Governor :

Supervisor of Roads (New Castle county),

Overseers of Roads (Kent and Sussex counties),

Fence Viewers,

Assessor,

Tax Collector,

Constable,

Justice of the Peace.

Supervisor of Roads. — The Levy Court appoints in each rural district in New Castle county a Supervisor of Roads for a term of one year at a compensation fixed by the Court. It is his duty to make in his district the repairs ordered by the Levy Court, all such repairs being made under the supervision of the County Engineer.

Overseers of Roads. — The Levy Court in Kent and in Sussex county appoints for every district in each county a number of Overseers of Roads for a term of one year at a compensation fixed by the Court. In Kent county the number of Overseers in a district varies from seven to twenty-six ; in Sussex county it varies from six to twelve. The Levy Court of each of these counties decides how much shall be spent on the roads in each district, and the Overseers make the repairs, usually under the direction of the Levy Court Commissioner of the district.

Fence Viewers. — The Court of General Sessions appoints each year a number of men in each district to serve as Fence Viewers. There are ten Fence Viewers in each district in New Castle county; in Kent and in Sussex county the number in a district varies from three to five.

Their duty is to decide questions relating to boundary fences. If there is any dispute as to whether a fence is on the true boundary line of the properties or whether it is properly constructed, any three of the Viewers may be called upon by the disputing parties to settle the question. More than three may be called out, but at least three are necessary to give a decision. The person asking for the Viewers must pay their fees — usually $i each for each day they serve. The Fence Viewers are seldom called out.

Assessor. — Each district chooses its Assessor on general election day. He is chosen for a term of two years, and is paid by fees fixed by the Levy Court of the county, except in Wilmington, where each of the five Assessors is elected for a term of four years at a salary of $800 per year.

It is the duty of the Assessor to make, every four years, a "general assessment" of the value of all property, personal and real, and a list of the polls, as may be required by law. He goes over the whole district, makes a list of the taxable persons, and assesses their personal and real estate at what he considers a fair sum.

In the years between general assessments he assesses only persons who have moved into the district since the last assessment, and such buildings and improvements to property as have been made in this time. He strikes off his list the persons who have moved out of the district. These assessments are known as " scrap assessments."

The Assessor usually begins to make the general assessment in October. After he has completed his assessment he puts the names of the persons assessed and the sum for which they are assessed in books or on lists which he posts in public places. All persons may examine these lists to learn what they have been assessed. After such lists have been open to the public he gives notice in the papers, and by posters in public places, that on certain days the Board of Revision of Assessments will meet to hear appeals. The Levy Court of each county, in December of every year, appoints two competent persons in each Representative district of the county, who, with the Assessor, form the Board of Revision of Assessments for that district. The first meeting of these Boards in New Castle and Sussex counties takes place on the last Tuesday in January; in Kent county, on the first Tuesday in March. After the appeals have been heard by these Boards in every district, the Assessor sends the revised lists to the Levy Court of his county. The Levy Court then gives public notice that on certain days it will sit to hear further appeals. From the decision of the Levy Court, there is no appeal. After the Levy Court Commissioners have revised the list for the last time, they turn it over to the Clerk of the Peace of the county, who has his clerks make out the tax duplicate for each district. The " tax duplicate " is a list of the names of the taxable persons and of their tax for the year.

The assessments of the other three years are made in the same way, and appeals can be made as in the general assessment.

Tax Collector. — A Tax Collector is appointed for each district (except in Wilmington) by the Levy Court of the county for a term of two years. He is paid by commissions on the amount of tax collected. He must furnish bond each year for at least the amount of the duplicate.

It is the duty of the Tax Collector to collect the road, county, and poor taxes, and the school tax when requested. After collecting the tax, the Collector turns it over to the County Treasurer.

Constable. — Each district has at least one Constable appointed by the Levy Court for a term of one year. He is paid by fees. He must give bond, for sums of money often pass through his hands ; for example, when he collects a debt.

The duties of the Constable are varied. His chief duty is to serve all writs issued by the Justice of the Peace. These may be writs for civil or for criminal cases. Any warrant placed in his hands by the Justice must be served by him on the proper person if it is in his power to do so.

The number of Constables for a district is fixed by law. Some of the Constables, by act of the Assembly, are appointed by the Governor. The Governor has the power to appoint special Constables for private companies and for railroad companies. Such special Constables must be paid by the company or corporation for which they are appointed. The commissions of special Constables for private companies may be revoked at any time ; the commissions of special Constables for railroad companies are for two years, but may be revoked sooner by the Governor.