Abstract
This chapter provides a brief overview of the founding of the colony in 1638 by Peter Minuit, acting on behalf of the Swedish government. Successively a Swedish, Dutch, and English colony, Delaware was also at various times part of New York and then Pennsylvania. The impact of these changes on the rights tradition of the colony is explored. The chapter also discusses how Delaware’s rights tradition was shaped by the English common law, it sizeable contingent of Quaker residents, and its propinquity to Pennsylvania. The state’s declaration of rights, adopted in tandem with its 1776 constitution, closely resembled the Pennsylvania and Maryland declarations. A replication of and notes on the declaration of rights and relevant rights provisions in the frame of government is provided.
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Notes
- 1.
Carol E. Hoffecker, Democracy in Delaware: The Story of the First State’s General Assembly (Wilmington, DE: Cedar Tree Books, 2004), 9.
- 2.
The Instruction for Johan Printz, Governor of New Sweden, trans. Amandus Johnson (Philadelphia: The Swedish Colonial Society, 1930), 92, 94.
- 3.
Ibid., 94.
- 4.
Ibid., 94, 96.
- 5.
Gaspare J. Saladino, “Delaware: Armed in the Cause of Freedom,” in The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties, ed. Patrick T. Conley and John P. Kaminski (Madison, WI: Madison House, 1992), 277.
- 6.
Ibid., 278.
- 7.
Ibid.
- 8.
Ordinance Introducing the Duke’s Laws, Establishing Courts of Justice and Making Various Other Rules for the Government of the Delaware River, in Foundations of Colonial America: A Documentary History, ed. W. Keith Kavenagh (New York: Chelsea House, 1973), 2:828. It is available online at: https://www.nycourts.gov/history/legal-history-new-york/documents/charters-duke-transcript.pdf.
- 9.
Saladino, “Delaware: Armed in the Cause of Freedom,” 274.
- 10.
Act of Union, December 7, 1682, in Kavenagh, Foundations, 2:862.
- 11.
For a thorough description of the frames and other charter documents governing Pennsylvania, see the treatment of them in that chapter.
- 12.
The Great Law (1682), Ch. 1, is reprinted in The Statutes at Large of Pennsylvania from 1682 to 1700, comp. Robert L. Cable (Harrisburg: Legislative Reference Bureau, 2001), 1:5.
- 13.
Ibid.
- 14.
Ibid., Ch. 42, 17.
- 15.
Ibid., Ch. 62, 22–23.
- 16.
Ibid., Ch. 46, 18–19.
- 17.
Ibid., Ch. 37, 15.
- 18.
Carol E. Hoffecker provides an informative description of these developments in Democracy in Delaware, 34ff.
- 19.
An Act for Regulating Elections, and Ascertaining the Number of the Members of Assembly, 7 Geo. II (1734), Ch. LXI, sec. 2, 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 (Newcastle: Samuel and John Adams, 1797), 1:148.
- 20.
See Saladino, “Delaware: Armed in the Cause of Freedom,” 290.
- 21.
Ibid., 291.
- 22.
Act for Regulating Elections, Ch. LXI, sec. 10, 1:154–156.
- 23.
An Act for the Enabling Religious Societies of Protestants within This Government, to Purchase Lands for Burying-Grounds, Churches, Houses for Worship, Schools, etc., 17 Geo. II (1744), Ch. CVIII, in Laws of the State of Delaware, 1:271. A more detailed discussion of these measures is found in Saladino, “Delaware: Armed in the Cause of Freedom,” 291–292.
- 24.
J. Thomas Scharf, History of Delaware: 1609–1888 (Philadelphia: L. J. Richards & Co., 1888), 1:219.
- 25.
Claudia L. Bushman, Harold B. Hancock, and Elizabeth Moyne Homsey, eds., Proceedings of the Assembly of the Lower Counties on Delaware, 1770–1776, of the Constitutional Convention of 1776, and of the House of Assembly of the Delaware State, 1776–1781 (Newark: University of Delaware Press, 1986), 199–200.
- 26.
Ibid., 201.
- 27.
Ibid. (emphasis added).
- 28.
Randy J. Holland, The Delaware State Constitution (2002; reprint, New York: Oxford University Press, 2011), 5. See also John A. Munroe, Federalist Delaware, 1775–1815 (New Brunswick, NJ: Rutgers University Press, 1954), 84 and the studies cited in the footnote at page 298. Cf. the claims made on behalf of New Hampshire, see below p. 251.
- 29.
A reliable and more detailed account of the events leading to the calling of the convention, the selection of delegates, the debates, and decision making can be found in Richard Lynch Mumford, “Constitutional Development in the State of Delaware, 1776–1897” (PhD. diss., University of Delaware, 1968).
- 30.
Letter of George Read to Caesar Rodney, September 17, 1776, reprinted in H. Clay Reed, “The Delaware Constitution of 1776,” Delaware Notes 6 (1930): 41.
- 31.
Mumford, “Constitutional Development,” 61.
- 32.
Michael P. Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (Notre Dame, IN: University of Notre Dame Press, 1996). Fuller analysis of these rights and aspirations is provided in Chapter 1.
- 33.
That article read:
No article of the declaration of rights and fundamental rules of this State, agreed to by this convention, nor the first, second, fifth, (except that part thereof that relates to the right of suffrage,) twenty-sixth, and twenty-ninth articles of this constitution, ought ever to be violated on any pretence whatever. No other part of this constitution shall be altered, changed, or diminished without the consent of five parts in seven of the assembly, and seven members of the legislative council (Const. 1776, Art. 30).
- 34.
“Delaware: Armed in the Cause of Freedom,” 290.
- 35.
Max Farrand, “The Delaware Bill of Rights of 1776,” The American Historical Review 3, no. 4 (July 1898), 641.
- 36.
See p. 168 for details of that requirement.
- 37.
This requirement was abolished in the 1792 constitution.
- 38.
Supreme court judges were prohibited from holding any other office than a military one (Const. 1776., Arts. 12, 18).
- 39.
Constitution of Delaware (1792), in Thorpe, Constitutions, 1:568–570.
- 40.
Similar to Md. Decl. 1776, Art. I. This section was removed from the 1792 constitution.
- 41.
Similar to Pa. Decl. 1776, Art. II.
- 42.
The qualifier “Christian religion” to this section affording equal rights and privileges suggests that there were some “equal rights and privileges” that non-Christians could not enjoy. Article 22 of the frame of government supported that inference, requiring officeholders to be Christians who acknowledged Holy Scriptures to be divinely inspired. When Delaware revised its constitution in 1792, it removed this section. The restriction reflected the delegates’ belief that religion, and specifically the Christian religion, was a necessary prerequisite for a well-ordered moral community. For elaboration on colonial assumptions about the nature of community see pp. 43–48. Article 29 of the frame prohibited the establishment of any particular religion.
- 43.
Similar to Pa. Decl. 1776, Art. III. The declaration by Sussex County in 1774 that all parliamentary acts respecting the “internal police” were unconstitutional indicates that Delaware, even as a colony, zealously guarded the right to control its internal police. See discussion above, p. 169. This section constitutionalized that exercise of sovereignty. This section was removed from the 1792 constitution. By then, Delaware’s independent status had been recognized, it had joined the Union, and a Bill of Rights had been added to the national Constitution. Combined, they rendered this section redundant.
- 44.
Similar to Md. Decl. 1776, Art. IV. The 1792 convention confined this sentiment to a preamble, where the people “may…as circumstances require, from time to time, alter their constitution of government.”
- 45.
Similar to Md. Decl. 1776, Art. V. The Delaware version replaced “ought to have a right to suffrage” with “hath a right to suffrage.”
The requirements for demonstrating a “permanent common interest with, and attachment to the community,” were placed in Article 2 of the frame of government, which in turn referred to the law then in effect concerning suffrage requirements. The existing law levied fines on those who did not vote, making explicit the connection between rights and obligations.
- 46.
Similar to Md. Decl. 1776, Art. VII; Va. Decl. 1776, sec. 8.
- 47.
Similar to Md. Decl. 1776, Art. X.
- 48.
Similar to Md. Decl. 1776, Art. XI. The constitution of 1792 included freedom of assembly in its rights article (Const. 1792, Art. I, sec. 16).
- 49.
Similar to Pa. Decl. 1776, Art. VIII. Like its Pennsylvania counterpart, this section protected the religious conscience of Quakers.
The 1792 constitution eliminated this section. The notion of communal obligation—taking property for public use and serving in the militia—balanced by fair compensation for the taking and exemption from military service for the conscientious objector, was prefaced by what, under a contemporary rights regime, would be placed in a preamble. The removal of the exemption for those who in conscience could not bear arms, occasioned objections at the 1792 convention. Quaker delegate Warner Mifflin addressed the convention, pleading for an exemption from military service for those whose religious consciences prohibited such service. A deputation of Quakers representing Pennsylvania, New Jersey, and Delaware urged the convention to respect the “rights of conscience.” Claudia L. Bushman, Harold B. Hancock, and Elizabeth Moyne Homsey, eds., Proceedings of the House of Assembly of the Delaware State, 1781–1792 and of the Constitutional Convention of 1792 (Newark: University of Delaware Press, 1988), 844–846, 855–857. Their pleas were unsuccessful. Quaker attitudes towards warfare during the Revolutionary War did not endear them to fellow Delawareans. Munroe, Federalist Delaware, 169. The existence and terms of any religious exemptions would be left to the legislature.
- 50.
Similar to Md. Decl. 1776, Art. XV. The 1792 declaration removed the protection against ex post facto laws, perhaps to avoid redundancy in the wake of the national Constitution’s ban on states adopting such laws (U.S. Const., Art. I, sec. 10, cl. 1).
- 51.
Similar to Md. Decl. 1776, Art. XVII.
- 52.
Similar to Md. Decl. 1776, Art. XVIII. The Maryland provision on which this section was based did not specify that the local trial would be a jury trial, notwithstanding that a jury trial was provided in other articles of that state’s declaration. This section removed any doubt.
- 53.
Similar to Md. Decl. 1776, Art. XIX. Absent from the Delaware declaration are the rights to have a “copy of the indictment or charge in due time—if required—to prepare for his defense” and “process for his witnesses.” The 1792 constitution added additional provisions strengthening the protections for those accused of crimes, such as allowing all prisoners to be bailable by sufficient sureties (bond) except for capital cases (1792 Const., Art. I, sec. 12), and protection of the writ of habeas corpus mirroring that found in the U.S. Constitution (ibid., Art. I, sec. 13).
- 54.
Similar to Md. Decl. 1776, Art. XX. The Maryland document permitted evidence against one’s self to be compelled in cases “as have been usually practised in this State, or may hereafter be directed by the Legislature.” The Delaware version contained no such exception to the right.
- 55.
Similar to Md. Decl. 1776, Art. XXII.
- 56.
Similar to Md. Decl. 1776, Art. XXIII.
- 57.
Similar to Md. Decl. 1776, Art. XXV.
- 58.
Similar to Md. Decl. 1776, Art. XXVI.
- 59.
Similar to Md. Decl. 1776, Art. XXVII.
- 60.
Similar to Md. Decl. 1776, Art. XXVIII.
- 61.
Similar to Md. Decl. 1776, Art. XXX. The section said nothing about how such independency and uprightness was to be achieved. The frame of the constitution specified that judges of the supreme court and the court of appeals (the actual court of last resort) would serve “during good behavior” (Const. 1776, Arts. 12, 17), a key prerequisite for achieving judicial independence. The 1792 constitution eliminated this section.
- 62.
Similar to Md. Decl. 1776, Art. XXXVIII.
- 63.
See Suffrage section, above.
- 64.
Given the heavy reliance by the colonists throughout the eighteenth century on the rights embodied in the English common law, it is not surprising that, one way or another, all states incorporated the protections of that body of law. See the table at above pp. 81–82. This article gave constitutional status to the extensive rights and liberties encompassed by the common law and the statutes that made up the English Constitution. Because the colonies had come to rely on the common law for the administration of justice, the provision also served to ease the transition to statehood. It also made clear that any parts of that law repugnant to the constitution of the state were void and the legislature was authorized to alter or supersede those parts as it saw fit.
- 65.
A majority of the newly independent states took some formal action by legislation or constitutional provision to curb the slave trade and move gradually towards its elimination. The importance of this ban was underscored by its inclusion among the provisions listed in Article 29 that were not to be violated “on any pretence whatsoever.” Moreover, individual manumissions increased after independence. The percentage of free blacks among the black population in Delaware grew from thirty percent in 1790 to seventy-six percent in 1810. Winthrop D. Jordan, White over Black: American Attitudes Towards the Negro, 1550–1812 (Chapel Hill: University of North Carolina Press, 1968), 407.
The 1792 constitution removed this article. One of the main supporters of this change, delegate John Dickinson, though opposed to the extension of slavery, insisted that the power to prohibit the importation of slaves must be left to the national government under the U.S. Constitution. Thomas G. West, Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America (Lanham, MD: Rowman & Littlefield, 1997), 11.
- 66.
There was no established church in pre- or post-constitution Delaware. This provision ensured that none would be established. Christianity was, however, given a privileged position. See Decl. 1776, sec. 3 (granting equal rights only to Christians); Const. 1776, Art. 22 (requiring legislators to swear Christian oath). The first clause prohibited the establishment of a particular religion but the wording appears to allow multiple establishments on an equal footing. Section 2 of the declaration, however, seems to foreclose that possibility by making clear that no individual could be taxed to support any faith against his will. The companion clause prohibited clergy of any faith from holding public office. Reed suggests that this ban was directed against Presbyterian clergymen who were radical, numerous, and active in the Revolutionary struggle. “Delaware Constitution of 1776,” 31.
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Galie, P.J., Bopst, C., Kirschner, B. (2020). Delaware. In: Bills of Rights Before the Bill of Rights. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-44301-6_7
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