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JUSTICE OF THE PEACE
The position of justice of the peace is one of the oldest offices in Delaware. The justice of the peace was the most important figure in English local government, so it was only natural that the office be transplanted to the colony. The title “Just of the Peace” comes from the English idea that “crimes were breaches of the king’s peace, and justices. . .had the authority and the duty to proceed against anyone who broke it.”1 Although the first Duke of York Laws (1664/5) established the position of justice, it was not until 1676 that in Delaware it began to replace the Dutch equivalent, the schepens.2
Justices of the peace in colonial Delaware held much more authority than the position now entails. Justices had both judicial responsibility for conducting all the county courts and administrative responsibility for holding the Levy Court. Although usually untrained in lay, justices continued to exercise their judicial authority until the 1776 constitution when a separate group of judges was selected by the governor to hold the Court of Common Pleas and Orphans’ Court.3 Justices of the peace continued to hold the Court of Quarter Sessions until the 1792 constitution which made the common pleas judges responsible for Quarter Sessions, also.4 The justices of the peace continued to hear minor civil and criminal cases. In 1793 the justices also lost their administrative responsibility when the office of levy court commissioner became an elected position.5
Today, justices of the peace remain a vital part of Delaware’s judicial system, hearing lesser civil and criminal cases. Civil cases frequently relate to debt, trespass, or landlord - tenant relations include motor vehicle code violations, disturbances of the peace, and minor misdemeanors as specified by law.6 Justices also issue marriage licenses and serve as notary publics.7
Under the Duke of York, justices of the peace were selected and appointed by the governor and council. Justices served an unspecified term - “during the Governors pleasure.”8 Laws introduced by William Penn provided for an election by freemen of twice the number of required Justices. The governor then selected from that group the proper number of justices to service.”9 After Delaware became a state, the 1776 constitution directed that the House of Assembly nominates twenty-four persons for each county. The president (forerunner of the present governor), with approval of the Privy Council, selected twelve for each county to serve seven year terms. Members of the legislature and Privy Council were also justices of the peace with jurisdiction throughout the state.10
The 1792 constitution again changed the way justices were selected for office. After 1792, the governor appointed up to twelve justices for each county and commissioned them for seven-year terms. They could be removed by the governor on conviction of misbehavior in office or on the address of both houses of the legislature. Additional justices could be appointed after passage of an appropriate law by two-thirds of the legislature.11
Currently, as directed by the 1897 constitution, justices of the peace are appointed by the governor, with the consent of the Senate, for four year terms.12 The governor is aided in his selections by a Judicial Nominating Commission which recommends qualified candidates.13
In 1965 drastic changes were made in the justice of the peace judicial system. A deputy administrator to the chief justice of the Supreme Court was made responsible for supervising the justices, efficient use of personnel, preparing budgets, negotiating agreements, and leasing property in which to hold the courts.14 He was also responsible for the administration of accounts and expenditures, and enforcing orders and directives received from the chief justice which promoted more efficient operation of the justice of the peace courts.15 In 1979 the position was abolished and replaced by a chief magistrate who currently administers the justice of the peace or magistrates courts. The governor, with senate consent, appoints a justice of the peace to serve as chief magistrate. A judicial nominating commission aids the governor in his selection.16
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Since 1966 the number of justices has remained at fifty-three. Up to twenty-four justices may be appointed for New Castle County, twelve for Kent County, and seventeen for Sussex County.17 These justices are required to hold court in at least one location in Wilmington, five locations in New Castle County, three places in Kent County, and five in Sussex County. At least one justice in each county is required to be available at all times.18 Justices of the peace serve in the county in which they live. They can, however, be assigned to other parts of the state.19
Officers of the new courts include a chief clerk and justice of the peace constables. The chief justice of the Supreme Court appoints a chief clerk for each location where justice of the peace court is held. The chief clerk assist the justices in fulfilling their duties and is responsible for the care of the court’s records.20 The constables are appointed by the chief magistrate and handle all the processes of the Justices of the Peace such as executing orders, warrants, capias, writs, and civil judgements and serving all civil summonses and subpoenas. They are responsible for maintaining security and order in court and for arresting those committing breach of peace or contempt. Constables transport all detentioners or convicted offenders to correctional facilities after receiving a commitment order from a justice of the peace.21
Throughout the long history of the position, justices of the peace have been responsible for hearing both civil and criminal cases. The most common civil cases are those involving debt. In fact, one of the main responsibilities William Penn set for the justices of the peace was to provide “for speedy justice to the poor, in small matters... that all matters of debt or dues under forty shillings, be heard.” Under Penn’s government, justices were required to report their judgements to the next county court and be recorded by the clerk.22
Procedures in debt cases have changed little since the colonial period although the amounts of money involved have increased from under forty shillings to under $2500. After receiving a complaint, the justice issues a summons or capias directed to a constable commanding him to have the defendant appear in court. After the justice hears both sides of the case, he gives his judgement which is entered into the judgement docket.23 If the defendant can not be found, a warrant of attachment is directed to the constable commanding him to attach the defendant’s property. Today, judgements can be appealed to the Superior Court, although in colonial times appeals were not permitted in debt cases. At that time if the defendant did not own property, he could have been incarcerated until the debt and court costs were satisfied.24
Justices are permitted to issue writs of execution against any one refusing to comply with a judgement. Executions are not permitted to be issued until six months after judgement unless the plaintiff declares the sum due will be lost in that time. Executions are directed to a constable or the sheriff who must inventory and appraise the property taken in the execution. The constable or sheriff is required to make a return of the execution along with a certification of all his proceedings. In cases where a sale of property results a list of goods and chattels sold and the amounts for which they were sold must also be returned.25 The justice is required to file an abstract of the judgement and execution with the prothonotary. He or she is also required to keep an execution docket of all executions issued.26
Another type of civil case heard by the justices involves disputes between landlords and tenants. If tenants stay on the property after the lease expires, a complaint is made to the justice of the peace. He summons the tenant to show cause why the property was not restored to its owner. If the tenant is found guilty, a jury assesses damages and costs.27 Tenants in arrears of rent can be also tried before the justice of the peace.28 These early laws are still in effect with the addition of more recent provisions to the landlord - tenant code relating to landlord and tenant obligations, tenant receivership, and mobile home lots and leases.29
Trespass cases are yet another type of case heard by the justices of the peace. The justices have jurisdiction whenever the damages claimed do not exceed $2500.30 Justices also have concurrent jurisdiction with the Superior Court in actions of replevin (brought to recover possession of goods unlawfully taken) and detinue (brought for recovery of personal property from a person who acquired possession legally but retains it without right) when the value of the property is less than $2500.31
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A law passed in 1792 permitted either party objecting to the justice of the peace hearing the case the option having the case tried by three arbitrators. The same law permitted appeals from the justice to the Court of Common Pleas (after 1831 to the Superior Court).32 Today in civil actions plaintiffs may demand a jury trial. The justice of the peace appoints six persons from the current jury list used by Superior Court to hear the case.33 Appeals are made to the Superior Court.34
Less serious criminal cases are also heard by the justices of the peace. These cases have included assaults and batteries; shooting firearms within town limits; violations of laws governing tavern keepers; forcible entry and forcible detainer; violations of game and fish laws; violations of liquor laws; cruelty to animals; riding a train without paying fare; violation of oyster laws; violations of the motor vehicle act; violations of the pharmacy act; disorderly conduct; license violations; violation of compulsory school attendance laws; delinquent tax proceedings; and violations of the ordinances codes and regulations of local governments.35
In 1829 law outlined the procedure a justice was required to follow in criminal cases. Whenever, on probable cause, it was believed that a person committed a crime or misdemeanor, the justice issued a warrant to a constable, sheriff, or coroner for the apprehension of the suspect. The justice examined him and any witnesses and took voluntary declarations. If it was determined that there indeed was probable cause for the accusation, the justice committed the accused for trial if it was a capital crime. If not a capital offense, the accused gave sufficient bail for his appearance before the next Court of Quarter Sessions. If the case involved a felony, the examination was written down and signed by the accused, witnesses, and the justice of the peace. This transcript could be used as evidence in the trial of the accused. Procedures used today are very similar to those in 1829. The accused does have the option of being tried by the Court of Common Pleas and must be informed of this right by the justice of the peace.37
Many of the early duties of the Justice of the Peace no longer apply today. One important duty during the colonial and early statehood period was the trying of bastardy cases. Whenever the justice learned of a birth of an illegitimate child, he issued a warrant to the constable to bring the mother before him. She was required to give security to ensure that the child would not become a charge upon the county. If she was unable to pay, she was committed to the custody of the sheriff until the security was paid. If she named the father, he was required to give security and pay monthly support. If the father was from another country, a justice in that country held proceedings against him.38
The Justice of the Peace was also required to enforce many of the laws that regulated blacks. He was required to fine any slaves or free black for appearing in town on election day unless the black lived there.39 More than twelve free blacks meeting after 10:00 p.m. and non-resident blacks preaching or possessing a gun without a license were brought to trial before the justice.40 After 1851 any non-resident free blacks who came into the state were required to be arrested.41 In 1863 blacks were not permitted to assemble, hold camp meetings, or attend political meetings. If they did so, they were fined by a justice of the peace.42 Free blacks had to procure a certificate of freedom from the justice of the peace before they could be married.43
Additionally, the justices of the peace had responsibilities relating to immigration and apprentices. The justices had the authority to issue licenses for landing passengers or emigrants from foreign countries.44 No one immigrating to Delaware could be bound as a servant or apprentice except by a deep executed before a justice or trustee of the poor. This law was designed to protect the immigrant from injustices or imposition.45 Two justices were required to approve binding of apprentices and to execute the apprentice indenture. If an apprentice or indentured servant ran away, a justice issued a warrant for his apprehension.46
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The justices of the peace also had some responsibilities relating to the poor. The trustees of the poor could apply to two justices for a warrant to seize the property of persons deserting or neglecting their families. The property could be sold or the annual rents and profits from it could be applied to the care of the family.47 Constables were required to inform a justice or the trustees of the poor of any free blacks unable to support their children. After investigating the situation, if found to be true, the justice or trustee could apprentice out the children.48
An additional responsibility of Justices of the Peace living near the coast was to assist shipowners or ship officers whose vessels were in danger of being stranded or beached on shore. The justice was required to summon as many men as needed to give assistance. Any person finding goods from a shipwreck was required to make an inventory and turn it over to two justices. If the goods were not claimed within a year, they were sold at public auction and the proceeds put in the state treasury.49
The two justices of the peace also had limited appointment powers. Two justices could appoint a constable to replace one who died or was unable to serve.50 A justice could also appoint viewers of swamps to replace those unable to serve but the names of new viewers had to be certified to the Court of Common Pleas.51 Whenever a turnpike was not kept in good repair, the justice was required to summon three freeholders to view the road. If the road was not in as good condition as required, tolls were not permitted to be collected.52
The justice of the peace also had responsibilities relating to the coroner. If the office of coroner became vacant or the coroner was unavailable, the justice was required to perform the duties of the office. Bodies were permitted to be buried without an inquisition if the justice certified that there was not need for one. A justice’s decision was required to authorize a coroner to disinter a body.53
Another important responsibility of the justice was to issue marriage licenses and take marriage bonds.54 A 1911 law required the justice to examine the persons applying for a marriage license and enter the required facts (full name, place of residence, etc.) in a loose leaf duplicate of the marriage record book. Upon payment of the license fee, the justice issued the license and entered the date of issuance in the record book. Within ten days the justice was required to return his loose-leaf duplicate to the Clerk of the Peace and have the information copied into the clerk’s marriage record book.55 Currently, justices continue to issue marriage licenses and perform the marriage ceremony.56
Other duties of the justice of the peace have included attending elections to suppress booths dispensing liquor, acknowledgment of deeds and manumissions, and selling hunting and fishing licenses.57 Since 1905, justices have also acted as notary publics.58
The justices were required to keep a number of records in addition to those already mentioned. A 1913 law required justices to keep a fee book in which an itemized account of all money received had to be recorded. Money received had to be turned over to the county treasurers, and a monthly account of all fees and costs received by them was submitted to Levy Court.59 Currently, fines collected by the justices are paid to the state treasurer monthly except for those fines due to the county or municipality.60
Other records required to be kept include a criminal docket which is open at all times for public inspection, 61 a 1974 law requires that all traffic and criminal warrants and bonds be placed in a binder, be numbered in court case order, and be indexed; all pleas, continuances, waivers of rights, and other information deeded appropriate are to be recorded on the back of the original warrant or bond;62 and currently, a judgement and an execution docket are required for each Justice of the Peace Court.63
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Since early justices did not have a formal office but worked from their homes, a continuing problem with justice of the peace records was what to do with them after a justice left office. An 1819 law required that dockets and all writs issued be deposited with the nearest justice of the peace.64 In 1915 the criminal docket and fee book were given to the Levy Court on termination of office.65 A 1931 law required that all records ten years old or older had to be deposited with the prothonotary for safe keeping.66
By 1945 all records were to be delivered to the levy court whenever a justice died or his term expired. The levy court turned the records over to his successor on request. If no successor was appointed within three months, the civil records were turned over to the nearest justice of the peace who preserved them until the successor justice was appointed. The criminal docket was kept one year by the levy court and then turned over to the Public Archives Commission.67 These laws no longer apply due to the 1965 reorganization under which all records became centralized in the Justice of the Peace Courts Administrative Office.
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1 H. Clay Reed and Joseph AA. Palermo, “Justices of the Peace in Early Delaware,” Delaware History 14 (1970-1971): 231.
2 Ibid., pp. 223-225.
3 1776 Constitution, Article 12.
4 1792 Constitution, Article VI, Section 19.
5 2 D.L., ch. 18. Reed, pp. 224-232.
6 64 D.L., ch. 270. Paul Dolan and James R. Soles, Government of Delaware (Newark, DE: University of Delaware, 1976), p. 81.
7 9 Delaware Code, Section 9414. 29 Delaware Code, Section 4302.
8 Staughton George, Benjamin M. Nead, and Thomas McCamant, eds., Charter to William Penn and Laws of the Province of Pennsylvania...Proceeded by Duke of York’s Laws...(Harrisburg: Lane S. Hart, State Printer, 1879), pp. 53, 44.
9 Ibid. pp. 97, 159.
10 1776 Constitution, Article 12.
11 1792 Constitution, Article IV, Section 20. 1831 Constitution, Article IV, Section 24.
12 1897 Constitution, Article IV, Section 31.
13 62 D.L., ch. 451.
14 55 D.L., ch. 20.
15 57 D.L., ch. 674.
16 62 D.L., ch. 52, 451.
17 55 D.L., ch. 433.
18 64 D.L., ch. 35.
19 55 D.L., ch. 20.
21 64 D.L., ch. 271. 65 D.L., ch. 411.
22 George, p. 131.
23 1 D.L., ch. 73. 58 D.L., ch. 194.
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24 10 Delaware Code, Section 9582-9585.
25 13 D.L., ch. 161. 10 Delaware Code, Section 9556.
26 38 D.L., ch. 200. 5 D.L., ch. 179.
27 2 D.L., ch. 39.
28 3 D.L., ch. 32.
29 25 Delaware Code, Section 5101-7114.
30 4 D.L., ch. 60; 10 Delaware Code, Section 9303.
31 10 Delaware Code, Section 9304.
32 2 D.L., ch. 250. 8 D.L., ch. 106.
33 60 D.L., ch. 253.
34 58 D.L., ch. 194.
35 4 D.L., ch. 60, 195; 5 D.L., ch. 239; 7 D.L., ch. 34; 9 D.L., ch. 216; 13 D.L., ch. 144; 14 D.L., ch. 414, 416, 13; 23 D.L., ch. 124; 35 D.L., ch. 56; 25 D.L., ch. 274; 26 D.L., ch. 16, 180; 37 D.L., ch. 197; 40 D.L., ch. 138; 58 D.L., ch. 38; 59 D.L., ch. 263.
36 7 D.L., ch. 121; 11 Delaware Code, Section 5903-5919.
37 37 D.L., ch. 262.
38 1 D.L., ch. 44; 2 D.L., ch. 108.
39 3 D.L., ch. 3.
40 8 D.L., ch. 176.
41 10 D.L., ch. 591.
42 12 D.L., ch. 305.
43 8 D.L., ch. 194.
44 7 D.L., ch. 195.
45 7 D.L., ch. 184.
46 7 D.L., ch. 41.
47 2 D.L., ch. 249.
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48 4 D.L., ch. 164.
49 2 D.L., ch. 128.
50 4 D.L., ch. 166.
51 5 D.L., ch. 78.
52 5 D.L., ch. 96.
53 7 D.L., ch. 149.
54 6 D.L., ch. 347.
55 26 D.L., ch. 244.
56 9 Delaware Code, Section 9414.
57 3 D.L., ch. 3; 4 D.L., ch. 246; 2 D.L., ch. 124; 40 D.L., ch. 191.
58 23 D.L., ch. 69.
59 27 D.L., ch. 275.
60 65 D.L., ch. 218.
61 28 D.L., ch. 239; 34 D.L., ch. 218.
62 59 D.L., ch. 315.
63 65 D.L., ch. 173.
64 5 D.L., ch. 239.
65 28 D.L., ch. 239.
66 37 D.L., ch. 263.
67 45 D.L., ch. 249.
???; September 14, 1988; December 30, 1988;
CHANGED FROM 2425 TO 1215; December 4, 1989