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Although the current Delaware Supreme Court is Delaware’s highest court, it was not always the court of last resort. Established in colonial times as the highest appellate court for each county, it lost much of its power after the 1792 constitution reorganized the judicial system. The 1831 constitution abolished the court and placed its functions in the newly created Superior Court. The current Supreme Court was reestablished under the 1897 constitution as a state-wide court and assumed the duties and functions of the former Court of Errors and Appeals.
The early Supreme Court seems to have evolved from William Penn’s 1684 Provincial Court, a court which met twice a year in each county and was the “Supreme Appellate Court.”¹ It is not until 1719 that a “Supreme or Provincial Court” is mentioned in the Laws
of
Delaware and not until Governor Patrick Gordon’s “Act for the establishing courts of law and equity” (1726-1736) that the court’s organization and functions are described.² Under this act the court’s official title was the “Supreme Court of the counties of New Castle, Kent, and Sussex, upon Delaware.” Three judges commissioned by the governor constituted the court with one member designated as the chief justice. Supreme Court justices were not permitted to sit in lower courts. Persons “aggrieved with the judgement” of any other court could be granted writs of error and be heard before the Supreme Court. The court met twice a year in each county seat. It was the duty of the court clerks of each county to inform the Supreme Court when they had cases to be tried. In addition to examining and correcting errors of justices, the court had the power to “examine, correct and punish the contempts, omissions and neglects, favors, corruptions and defaults of … justices of the peace, sheriffs, coroners, clerks and other officers.” Although the Supreme Court was the highest court in Delaware, its decisions could be appealed to the King in Council or other appropriate English courts.³
The 1776 constitution instituted several changes in the court. The President and General Assembly appointed the three justices, one of whom served as the “Chief Justice and a Judge of Admiralty.” Clerks of the Court were appointed by the Chief Justice. Instead of appealing to the King in Council, appeals were to be made to the Court of Appeals which consisted of the President (chief executive of state government) and six persons appointed by Legislative Council (forerunner of the Senate) and the House.⁴ In 1777 and 1778 the Supreme Court did not sit because the judges chosen declined to take office, therefore, court could not be called.⁵
The 1792 constitution instituted major changes in the Supreme Court and gave much of its appellate power to the new High Court of Errors and Appeals. Civil suits could now originate in the Supreme Court as well as in the Court of Common Pleas, although the Court could take appeals from the Register’s Court and the Orphan’s Court. Appeals of judgments from the Justices of the Peace could be made to the Supreme Court or the Court of Common Pleas.⁶
The 1792 court was headed by three or four judges, one from each county, with one being the chief justice. The same justices also served as Justices of the Court of Oyer and Terminer and General Goal Delivery. Supreme Court judges, sitting with the Chancellor and the Common Pleas judges, made up the High Court of Errors and Appeals.⁷
Additional responsibilities were later given to the court. For example, it was required to appoint a Board of Inspectors of the Common Prison for each county,⁸ to grant licenses for exporting or selling convicts out of state, and for exporting or importing slaves from or to Maryland.⁹ The 1831 constitution abolished the Supreme Court and transferred its responsibilities and functions to the newly created Superior Court. The Court of Errors and Appeals continued to be the state’s highest appellate court.¹⁰

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¹ Victor B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of The State of Delaware (Wilmington: Star Printing Co;, 1906), pp. 3 – 4