THE CONSTITUTION OF
(1776)
(from http://www.yale.edu/lawweb/avalon/states/de02.htm)
The Constitution, or System of Government, agreed to and resolved
upon by the Representatives in full Convention of the Delaware State, formerly
styled "The Government of the Counties of New Castle, Kent, and Sussex,
upon Delaware," the said Representatives being chosen by the Freemen of
the said State for that express Purpose.
ARTICLE 1. The government of the counties of
ART.
2. The Legislature shall be formed of two
distinct branches; they shall meet once or oftener in every year, and shall be
called, " The General Assembly of Delaware."
ART.
3. One of the branches of- the Legislature
shall be called, " The House of Assembly,"
and shall consist of seven Representatives to be chosen for each county
annually of such persons as are freeholders of the same.
ART.
4.4 The other branch shall be called "
The council," and consist of nine members; three to be chosen for each
county at the time of the first election of the assembly, who shall be
freeholders of the county for which they are chosen, and be upwards of
twenty-five years of age. At the end of one year after the general election,
the councillor who had the smallest number of votes
in each county shall be displaced, and the vacancies thereby occasioned
supplied by the freemen of each county choosing the same or another person at a
new election in manner aforesaid. At the end of two years after the first
general election, the councillor who stood second in
number of votes in each county shall be displaced, and the vacancies thereby
occasioned supplied by a new election in manner aforesaid. And at the end of
three years from the first general election, the councillor
who had the greatest number of votes in each county shall be displaced, and the
vacancies thereby occasioned supplied by a new election in manner aforesaid.
And this rotation of a councillor being displaced at
the end of three years in each county, and his office supplied by a new choice,
shall be continued afterwards in due order annually forever, whereby, after the
first general election, a councillor will remain in
trust for three years from the time of his being elected, and a councillor will be displaced, and the same or another
chosen in each county at every election.
ART.
5. The right of suffrage in the election of
members for both houses shall remain as exercised by law at present; and each
house shall choose its own speaker, appoint its own officers, judge of the
qualifications and elections of its own members, settle its own rules of
proceedings, and direct writs of election for supplying intermediate vacancies.
They may also severally expel any of their own members for misbehavior, but not
a second time in the same sessions for the same offence, if reelected; and they
shall have all other powers necessary for the legislature of a free and
independent State.
ART.
6. All money-bills for the support of
government shall originate in the house of assembly, and may be altered,
amended, or rejected by the legislative council. All other bills and ordinances
may take rise in the house of assembly or legislative council, and may be
altered, amended, or rejected by either.
ART.
7. A president or chief magistrate shall be
chosen by joint ballot of both houses' to be taken in the house of assembly,
and the box examined by the speakers of each house in the presence of the other
members, and in case the numbers for the two highest in votes should be equal,
then the speaker of the council shall have an additional casting voice, and the
appointment of the person who has the majority of votes shall be entered at
large on the minutes and journals of each house, and a copy thereof on
parchment, certified and signed by the speakers respectively, and sealed with
the great seal of the State, which they are hereby authorized to affix, shall
be delivered to the person so chosen president, who shall continue in that
office three years, and until the sitting of the next general assembly and no
longer, nor be eligible until the expiration of three years after he shall have
been out of that office. An adequate but moderate salary shall be settled on
him during his continuance in office. He may draw for such sums of money as
shall be appropriated by the general assembly, and be accountable to them for
the same; he may, by and with the advice of the privy council, lay embargoes or
prohibit the exportation of any commodity for any time not exceeding thirty
days in the recess of the general assembly; he shall have the power of granting
pardons or reprieves, except where the prosecution shall be carried on by the
house of assembly, or the law shall otherwise direct, in which cases no pardon
or reprieve shall be granted, but by a resolve of the house of assembly, and
may exercise all the other executive powers of government' limited and
restrained as by this constitution is mentioned, and according to the laws of
the State. And on his death, inability, or absence from the State, the speaker
of the legislative council for the time being shall be vice-president, and in
case of his death, inability, or absence from the State, the speaker of the
house of assembly shall have the powers of a president, until a new nomination
is made by the general assembly.
ART.
8. A privy council, consisting of four
members, shall be chosen by ballot, two by the legislative council and two by
the house of assembly: Provided, That no regular officer of the army or
navy in the service and pay of the continent, or of this, or of any other
State, shall be eligible; and a member of the legislative council or of the
house of assembly being chosen of the privy council, and accepting thereof,
shall thereby lose his seat. Three members shall be a quorum, and their advice
and proceedings shall be entered of record, and signed by the members present,
(to any part of which any member may enter his dissent,) to be laid before the
general assembly when called for by them. Two members shall be removed by
ballot, one by the legislative council and one by the house of assembly, at the
end of two years, and those who remain the next year after, who shall severally
be ineligible for the three next years. The vacancies, as well as those occasioned
by death or incapacity, shall be supplied by new elections in the same manner;
and this rotation of a privy councillor shall be
continued afterwards in due order annually forever. The president may by
summons convene the privy council at any time when the
public exigencies may require, and at such place as he shall think most
convenient, when and where they are to attend accordingly.
ART.
9. The president, with the advice and
consent of the privy council, may embody the militia,
and act as captain-general and commander-in-chief of them, and the other
military force of this State, under the laws of the same.
ART.
10. Either house of the
General assembly may adjourn themselves respectively.
The president shall not prorogue, adjourn, or dissolve the general assembly,
but he may, with the advice of the privy council, or on the application of a
majority of either house, call them before the time they shall stand adjourned;
and the two houses shall always sit at the same time and place, for which
purpose immediately after every adjournment the speaker of the house of
assembly shall give notice to the speaker of the other house of the time to
which the house of assembly stands adjourned.
ART.
11. The Delegates for
ART.
12. The president and
general assembly shall by joint ballot appoint three justices of the supreme
court for the State, one of whom shall be chief justice, and a judge of
admiralty, and also four justices of the courts of common pleas and orphans'
courts for each county, one of whom in each court shall be styled "chief
justice," (and in case of division on the Ballot the president shall
have an additional casting voice,) to be commissioned by the president under
the great seal, who shall continue in office during good behavior; and during
the time the justices of the said supreme court and courts of common pleas
remain in office, they shall hold none other except in the militia. Any one of
the justices of either of said courts shall have power, in case of the noncoming of his brethren, to open and adjourn the court.
An adequate fixed but moderate salary shall be settled on them during their
continuance in office. The president and privy council shall appoint the
secretary, the attorney-general, registers for the probate of wills and
granting letters of administration, registers in chancery, clerks of the courts
of common pleas and orphans' courts, and clerks of the peace, who shall be
commissioned as aforesaid, and remain in office during five years, if they
behave themselves well; during which time the said registers in chancery and
clerks shall not be justices of either of the said courts of which they are
officers, but they shall have authority to sign all writs by them issued, and
take recognizances of bail. The justices of the peace
shall be nominated by the house of assembly; that is to say, they shall name
twenty-four persons for each county, of whom the president, with the
approbation of the privy council, shall appoint twelve, who shall be
commissioned as aforesaid, and continue in office during seven years, if they
behave themselves well; and in case of vacancies, or if the legislature shall
think proper to increase the number, they shall be nominated and appointed in
like manner. The members of the legislative and privy councils shall be
justices of the peace for the whole State, during their continuance in trust;
and the justices of the courts of common pleas shall be conservators of the
peace in their respective counties.
ART.
13. The justices of the
courts of common pleas and orphans courts shall have the power of holding
inferior courts of chancery, as heretofore, unless the legislature shall
otherwise direct.
ART.
14. The clerks of the
supreme court shall be appointed by the chief justice thereof, and the
recorders of deeds, by the justices of the courts of common pleas for each
county severally, and commissioned by the president, under the great seal, and
continue in office five years, if they behave themselves well.
ART.
15. The sheriffs and
coroners of the respective counties shall be chosen annually, as heretofore;
and any person, having served three years as sheriff, shall be ineligible for
three years after; and the president and privy council shall have the
appointment of such of the two candidates, returned for said offices of sheriff
and coroner, as they shall think best qualified, in the same manner that the
governor heretofore enjoyed this power.
ART.
16. The general assembly, by
joint ballots shall appoint the generals and field-officers, and all other
officers in the army or navy of this State; and the president may appoint,
during pleasure, until otherwise directed by the legislature, all necessary
civil officers not hereinbefore mentioned.
ART.
17. There shall be an appeal
from the supreme court of Delaware, in matters of law and equity, to a court of
seven persons, to consist of the president for the time being, who shall
preside therein, and six others, to be appointed, three by the legislative
council, and three by the house of assembly, who shall continue in office
during good behavior, and be commissioned by the president, under the great
seal; which court shall be styled the " court of appeals," and have
all the authority and powers heretofore given by law in the last resort to the
King in council, under the old government. The secretary shall be the clerk of
this court; and vacancies therein occasioned by death or incapacity, shall be
supplied by new elections, in manner . aforesaid.
ART.
18. The justices of the
supreme court and courts of common pleas, the members of the privy council, the
secretary, the trustees of the loan office, and clerks of the court of common
pleas, during their continuance in office, and all persons concerned in any
army or navy contracts, shall be ineligible to either house of assembly; and
any member of either house accepting of any other of the offices herein before
mentioned (excepting the office of a justice of the peace) shall have his seat
thereby vacated, and a new election shall be ordered.
ART.
19. The legislative council
and assembly shall have the power of making the great seal of this State, which
shall be kept by the president, or, in his absence, by the vice-president, to
be used by them as occasion may require. It shall be called "The Great
Seal of the
ART.
20. Commissions shall run in
the name of " The Delaware State," and bear
test by the president Writs shall run in the same manner, and bear test in the
name of the chief-justice, or justice first named in the commissions for the
several courts, and be sealed with the public seals of such courts. Indictments
shall conclude, "Against the peace and dignity of the State."
ART.
21. In case of vacancy of
the offices above directed to be filled by the president and general assembly,
the president and privy council may appoint others in
their stead until there shall be a new election.
ART.
22. Every person who shall
be chosen a member of either house, or appointed to any office or place of
trust, before taking his seat, or entering upon the execution of his office,
shall take the following oath, or affirmation, if conscientiously scrupulous of
taking an oath, to wit:
"
I, A
B. will bear true allegiance to the
And also make
and subscribe the following declaration, to wit:
"
I, A
B. do profess faith in God the Father, and in Jesus Christ His only Son, and in
the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy
scriptures of the Old and New Testament to be given by divine
inspiration."
And all officers
shall also take an oath of office.
ART.
23. The president, when he
is out of office, and within eighteen months after, and all others offending
against the State, either by maladministration, corruption, or other means, by
which the safety of the Commonwealth may be endangered, within eighteen months
after the offence committed, shall be impeachable by the house of assembly
before the legislative council; such impeachment to be prosecuted by the
attorney-general, or such other person or persons as the house of assembly may
appoint, according to the laws of the land. If found guilty, he or they shall
be either forever disabled to hold any office under government, or removed from
office pro tempore, or subjected to such pains and penalties as the laws
shall direct. And all officers shall be removed on conviction of misbehavior at
common law, or on impeachment, or upon the address of the general assembly.
ART.
24. All acts of assembly in
force in this State on the 15th day of May last (and not hereby altered, or
contrary to the resolutions of Congress or of the late house of assembly of
this State) shall so continue, until altered or repealed by the legislature of this
State, unless where they are temporary, in which case they shall expire at the
times respectively limited for their duration.
ART.
25. The common law of
England, as-well as so much of the statute law as has been heretofore adopted
in practice in this State, shall remain in force, unless they shall be altered
by a future law of the legislature; such parts only excepted as are repugnant
to the rights and privileges contained in this constitution, and the
declaration of rights, &c., agreed to by this convention.
ART.
26. No person hereafter
imported into this State from
ART.
27. The first election for
the general assembly of this State shall be held on the List day of October
next, at the court-houses in the several counties, in the manner heretofore
used in the election of the assembly, except as to the choice of inspectors and
assessors, where assessors have not been chosen on the 16th day of September,
instant, which shall be made on the morning of the day of election, by the
electors, inhabitants of the respective hundreds in each county. At which time
the sheriffs and coroners, for the said counties respectively, are to be
elected; and the present sheriffs of the counties of Newcastle and Kent may be rechosen to that office until the 1st day of October, A. D.
1779; and the present sheriff for the county of Sussex may be rechosen to that office until the 1st day of October, A. D.
1778, provided the freemen think proper to reelect them at every general
election; and the present sheriffs and coroners, respectively, shall continue
to exercise their offices as heretofore, until the sheriffs and coroners, to be
elected on the said 21st day of October, shall be commissioned and sworn into
office. The members of the legislative council and assembly shall meet, for
transacting the business of the State, on the 28th day of October next, and
continue in office until the 1st day of October, which will be in the year
1777; on which day, and on the 1st day of October in each year forever after,
the legislative council, assembly, sheriffs, and coroners shall be chosen by
ballot, in manner directed by the several laws of this State, for regulating
elections of members of assembly and sheriffs and coroners; and the general
assembly shall meet on the 20th day of the same month for the transacting the
business of the State; and if any of the said 1st and 20th days of October
should be Sunday, then, and in such case, the elections shall be held, and the
general assembly meet, the next day following.
ART.
28. To prevent any violence
or force being used at the said elections, no person shall come armed to any of
them, and no muster of the militia shall be made on that day; nor shall any
battalion or company give in their votes immediately succeeding each other, if
any other voter, who offers to vote, objects thereto; nor shall any battalion
or company, in the pay of the continent, or of this or any other State, be
suffered to remain at the time and place of holding the said elections, nor
within one mile of the said places respectively, for twenty-four hours before
the opening said elections, nor within twenty-four hours after the same are
closed, so as in any manner to impede the freely and conveniently carying on the said election: Provided always, That
every elector may, in a peaceable and orderly manner, give in his vote on the
said day of election.
ART.
29. There shall be no
establishment of any one religious sect in this State in preference to another;
and no clergyman or preacher of the gospel, of any denomination, shall be
capable of holding any civil once in this State, or of being a member of either
of the branches of the legislature, while they continue in the exercise of the pastorial function.
ART.
30. 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 sufferage,) twenty-sixth, and
twenty-ninth articles of this constitution, ought ever to be violated on any
presence 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.
GEORGE READ,
President.
Attest:
JAMES BOOTH,
Secretary. - Friday, September 10,1776.
This constitution was framed by a Convention which assembled at