The "Leftover Judge" System

By Henry R. Horsey and William Duffy

The first Constitution of The Delaware State was fashioned under wartime conditions and brought "radical" changes to the judicial system of the "counties of New-Castle, Kent and Sussex, upon Delaware."³ A "Supreme Court" was created as the trial court for the state, with Courts of Common Pleas for each county "The Court of Appeals" was the court of last resort to which an appeal from the Supreme Court lay in matters of law and equity. The court's members included the president of Delaware State, three appointees of the Legislative Council and three appointees of the House of Assembly. However, the Court of Appeals existed in name only, with no elections to the court until 1788, and there is little or no evidence that it ever functioned.

In contrast, from 1777 to 1792 the Supreme Court of Delaware served as the primary statewide court. The first chief justice of the state of Delaware was William Killen, with John Evans of New Castle and John Cooke of Kent County the remaining justices. David Finney of New Castle and Colonel John Jones of Sussex County soon succeeded Evans and Cooke. Killen, born in Ireland, later became Delaware's first chancellor under the Constitution of 1792. Finney, born in this country but educated in Ireland, was reputed to be the wealthiest citizen in Delaware and an ardent Whig. Finney's devotion to the revolution was epitomized by his steadfast refusal, during the war, to accept severely depreciated Continental currency for other than face value, a practice that ultimately led to his destitution.

During the revolution there was apparently little civil litigation in Delaware, and the Supreme Court was principally occupied with criminal matters, especially treason. Toryism was considered rampant in Sussex County, and all Sussex judges were said to be "Tories of deepest dye."⁴ Sussex Countians defiantly carried on trade openly with English ships and some paid for it dearly. In one case, eight men, following trial and conviction in 1780, received the following sentence from Chief Justice Killen:

That you return to the prison from whence you came, from thence you must be drawn to the place of execution and when you come there you must be hanged by the neck but not till you be dead, for you must be cut down alive, then your bowels must be taken out and burnt before your face, then your head must be severed from your body and your body be divided into four quarters and these must he at the disposal of the Supreme Authority of the State.

Under Delaware's first peacetime constitution, adopted in 1792, the court system was substantially reshaped. The Supreme Court remained a trial court of statewide jurisdiction. The court of last resort was retitled "The High Court of Errors and Appeals." Its members consisted of the chancellor (a newly created judicial position) and all the judges of the Supreme Court and of the Courts of Common Pleas who had not sat in the cause below. Thus, the High Court became a court of leftover judges. One reason given for not creating a separate court of last resort was a concern that the judges of that court would not have much to do except when they were convened to hear an appeal. The chancellor was designated to preside over the court unless disqualified and thus was accorded a position higher than that of the chief justice of the Supreme Court.

During this period, it was apparently the custom that the chief justice of each of the courts of general jurisdiction should be a trained lawyer, but associate justices were generally laymen, with the former being paid twice that of the latter. From 1800 to 1828, of the twenty-two judges who had served on both the Supreme Court and the Courts of Common Pleas, only two were trained lawyers who had practiced law before appointment.

The cumbersome structure of the Delaware judiciary became evident in 1830 when Chancellor Nicholas Ridgely died, following a thirty year term in office. Two nominees refused appointment as chancellor, including Nicholas' half-brother, Henry M. Ridgely, Kensey Johns, then chief justice of the Supreme Court, finally accepted appointment as chancellor.

Under a new constitution adopted the following year, the Supreme Court was eliminated as a trial court, as was the practice of permitting the appointment of lay judges. The elimination of lay judges led to a dramatic change in the character of the Delaware judiciary. The judicial system created by that Constitution continued almost to the end of the century when, in 1897, the current Constitution was adopted.

The judiciary of Delaware under the state's first two constitutions was largely composed of men who served in other positions of considerable responsibility. Many had served on the Committees of Correspondence of the three counties, originally convened in 1774 to oppose acts of Parliament and the King and, especially, the blockading of the port of Boston. Nineteen of the thirty-nine members of the county Committees of Correspondence were later elected to serve as judges. Seven of the judges under the Constitution of 1792 served as governors of Delaware and five as United States senators.

The Twentieth Century

Law in our society largely reflects the morals and values of the people the law governs. In 1900 Delaware's economy was based primarily on agriculture. The census counted 184,735 persons. Social and commercial life was divided by both gender and race. Women were still twenty years short of the franchise, and legal segregation would not end for fifty-four years. Delaware, sitting astride the Mason-Dixon line, was commonly regarded as a "northern state with a southern exposure."

The Delaware Supreme Court and the state judicial system had been freshly minted by the 1896-1897 Constitutional Convention. That system had a collection of separate constitutional courts but all of them, with engaging simplicity were administered by the same judges. The legal affairs of the 185,000 citizens were tended to by an active bar that numbered less than 150; six lawyers per year, on average, were admitted to the Delaware bar between 1865 and 1900.

The Supreme Court was on of the constitutional courts, and because its members were also the trial judges of the state, it is somewhat difficult to isolate the court’s appellate function from trial litigation. Using the same judges to try cases and to sit in review of their brethren who did is, measured by contemporary standards, both quaint and unthinkable. But to keep that practice in perspective, it should be remembered that as late as 1869 the United States Supreme Court justices "rode circuit" and sat as trial judges.

While there was little in the daily routine of judicial administration to suggest change, there was one event in 1897 that appeared no larger than a tiny cumulus cloud on a distant horizon. For the first time, the constitution that was adopted in 1897 authorized the organization of corporations by an administrative proceeding, rather than by a special act of the General Assembly. In 1899 the first legislation implementing that provision was enacted and, with it, Delaware's rush to corporate preeminence had begun.

The 1897 Constitution made significant structural changes in the Delaware judicial system. The Supreme Court became what its name always implied, a court of last resort (replacing the "High Court of Errors and Appeals"). For the first time all judges were required to be "learned in the law," although a law school degree was not required. The number of law judges on the Supreme Court was increased from four (the chief justice and three associate justices, one from each of the three counties) to five with the creation of the position of "Associate Justice at Large." The chancellor remained the senior officer of the court, taking precedence over the chief justice. Judicial terms were limited to twelve years. All justices were appointed by the governor subject to confirmation by the Senate. No more than a simple majority could belong to the same major political party.

Apart from structural change, the justices of the Supreme Court remained, as before, leftover judges and would so remain for another half century. Thus, in an appeal from the Court of Chancery, the justices comprising the Supreme Court would generally be five in number: the chief justice and the four associate justices. In contrast, on an appeal from the Superior Court or other law courts, the Supreme Court would generally number three or more, consisting of the chancellor as the presiding officer and such other of the five law judges as had not sat in the cause below.

The Supreme Court sat as the court of last resort to review final judgments of the Superior Court, the Court of Oyer and Terminer and the Court of General Sessions as well as to receive appeals from the Court of Chancery.

Chief Justice Charles B. Lore
1893-1909

The twentieth century history of the Supreme Court began with a nineteenth century holdover, Chief Justice Lore. Charles B. Lore was born in Odessa, New Castle County, in 1831. Admitted to the bar in 1861, he later served as attorney general and was elected to the Forty-eighth Congress in 1882. While practicing law, the future chief justice had an unusual and significant impact on the education of lawyers.

When in active practice Mr. Lore's office was always filled with students, thirty or more having graduated under his care, to become, many of them, among the ablest members of the Bar.

Upon the death of Chief Justice Alfred P. Robinson, Charles Lore was appointed his successor for life (subject to good behavior) on March 21, 1893. When the new constitution was adopted in 1897, the term of Chief Justice Lore and all other judicial officers was ended. But three sitting judges were reappointed: John R. Nicholson as chancellor, Lore as chief justice and Ignatius C. Grubb as associate justice. The newly appointed associate justices were William H. Boyce of Georgetown, James Pennewill of Dover and William C. Spruance of Wilmington.

Chief Justice Lore thus became the senior law judge under the new constitution, second to the chancellor in judicial rank. Like his four-law judge colleagues, he sat as a trial judge in the Court of Oyer and Terminer, the Court of General Sessions, the Superior Court and the Orphans Court. Grubb, originally appointed an associate justice in 1886, continued to serve until 1909. These six judges constituted the Supreme Court at the beginning of the twentieth century.

Judge Pennewill, who sat with Chief Justice Lore for many years and succeeded him as chief justice, gave several charming after-dinner recollections at Bar Association meetings in Rehoboth in the 1930s. Pennewill described Chief Justice Lore as a "loveable man [who was] exceedingly popular, especially with the common people, indeed too generous and charitable for his own good or for that of his family." But, according to Pennewill, Lore was a somewhat different person in court:

Chief Justice Lore was quick in reaching his conclusion, impulsive and impatient of delay...

 

Lore's disposition was to decide the case at once and very briefly give the reasons therefore. He had decided in his own mind what was the right of the matter and was not bothered by decisions in other States, which he thought were always hopelessly conflicting anyway....

Lore had plenty of confidence in his opinions which [one of his colleagues, Judge] Grubb sometimes called "spitting opinions."⁶

"Pennewill, how in the devil is it that Lore can decide so many cases apparently without much thought, and be always right? It must be intuition."

Pennewill described Grubb as the opposite of Lore. "Grubb wanted time, and much time, to think about the case and if he wrote the opinion, he did it with the utmost care. It was revised and re-revised until he believed it perfect in substance and form." Grubb's concept of loyalty and duty to the court became, in Pennewill's words, "almost an obsession with him," causing Grubb to wreck his health and become so weak near the end of his term of service that he wished to arrange to have a couch placed on the bench so that he could recline during the afternoon session of the court. He was only dissuaded from doing so by Chief Justice Lore, who told Grubb, "If you do such a ridiculous thing, I shall leave the Bench and will not return until the bed is removed."⁷

In 1900 the Supreme Court reported three decisions. Over the remaining years of Chief Justice Lore's term, the caseload of the Supreme Court remained small, averaging five or six cases per year.

During Chief Justice Lore's tenure, the Supreme Court functioned not much differently than its pre-1897 predecessor. And, as Professor Dolan has stated:⁸

During the first decade of the Court's existence little effort was made to change the old rules. Rather the Court tended to cite from early English authorities in upholding the old law. As an example of this, the Constitution of 1897 contains a provision for the payment of condemnation money in cases involving the placing of security whenever appeals from judgment are taken. The Court, however, availed itself of the common law rules, and it would seem that the effort on the part of the Constitutional Convention of 1897 to eliminate the ambiguity of the common law rule in respect to security placements was not recognized.

It seems clear that the court had not been given any new significant institutional authority by the Constitution of 1897. The trial courts continued to hold center stage for the vast majority of litigation and judicial decision-making. But a sea change was in the making for the Court of Chancery, and later for the Supreme Court, through the constitution's "eliminat[ion of] the time honored and highly political process of creating corporations by special legislative act and [provision] for incorporation only under general law."⁹

Chief Justice James Pennewill
1909-1933

James Pennewill was the first chief justice of Delaware to be appointed in the twentieth century. He proceeded to establish the record, not since matched, of consecutive years of service on the bench - thirty-six - and years of service as chief justice - twenty-four. A Sussex Countian by birth and educated at Princeton, Pennewill had moved to Dover at age twenty-one to begin "reading law" with Nathaniel B. Smithers, a prominent attorney practicing law on the Dover Green in a white clapboard one-story building that still stands. In 1878 Pennewill was admitted to the Delaware bar and practiced law in Dover for twenty years.

The forty-three-year-old Pennewill, one of the immediate beneficiaries of the Constitution of 1897's provision removing all sitting judges, was appointed by Governor Ebe Tunnell to be an associate justice of the Supreme Court and resident judge of Kent County. He became the newest member of the Supreme Court then composed of Chancellor Nicholson, Chief Justice Lore and Justices Grubb, Boyce and Spruance.

Before adoption of the Seventeenth Amendment to the federal constitution in 1913, United States senators were selected by their respective state legislatures. In 1907 a delegation of state senators offered Pennewill a chance to leave the bench to become a United States senator, succeeding the late Senator J. Frank Allee of Dover. To the surprise of the delegation, Pennewill declined their offer on personal grounds: he said he could not afford to take the paycut. The lofty position of United States senator then paid the less-than-lordly sum of $1,500 annually in comparison to Pennewill's then-annual salary of $3,000.

During his years of judicial service, Pennewill came to be known as a man of modest disposition and friendly manner. The work of the Supreme Court was not particularly demanding, as the number of appeals filed averaged about ten a year.

Two years later, in June of 1909, Pennewill’s term as associate justice expired as did those of all other court members. With little hesitation, recently elected Republican Governor Simeon Pennewill, after nominating Charles Minot Curtis to be chancellor, appointed his younger brother as chief justice. There was apparently little, if any, claim of nepotism in the appointment. As Senator Daniel O. Hastings has written, "Any Republican Governor would have named Judge Pennewill Chief Justice, and nobody questioned the propriety of his being named by his brother"¹⁰ The governor reappointed William Boyce as associate justice but replaced Justices Spruance and Grubb with Henry C. Conrad of Wilmington as resident judge of Sussex County and Victor B. Woolley of Wilmington as judge-at-large.

Woolley won out over other candidates who had the support of George V. Massey, a noted lawyer and general counsel for the Pennsylvania Railroad and a man of significant influence in Delaware politics for many years. Massey’s only objection to Woolley was expressed in an admonition, "[d]on’t appoint a lawyer to be a judge who has written a book on the law."¹¹

Massey was correct to refer to Woolley as a scholar. For several years he had been a lecturer on Delaware practice at the University of Pennsylvania Law School, and in 1906 he had benefitted the entire bench and bar with his publication of Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware. The book became an authority; indeed, it was the only written primer on state court procedure and practice. Almost ninety years later Woolley on Delaware Practice, as it is commonly called, is still relied upon by Delaware lawyers, particularly in matters of execution process.

The governor filled out the court by appointing his secretary of state, Daniel O. Hastings, to be resident judge for New Castle County. Two years later Hastings resigned to return to private practice and Herbert L. Rice was appointed to succeed him.

In 1914 Woolley resigned to accept an appointment to the Third Circuit Court of Appeals. Woolley chose as his first law clerk George Burton Pearson, Jr., who later served as Delaware’s first statutory vice-chancellor, and later as an associate justice of the Delaware Supreme Court. Thomas Bayard Heisel was appointed to succeed Woolley.In 1914 the Supreme Court consisted of Chancellor Curtis, Chief Justice Pennewill and Judges Boyce, Conrad, Rice and Heisel.

As the senior presiding member of the Supreme Court, Chancellor Curtis was later described in a moving tribute by former federal Judge Hugh M. Morris as a judge’s judge, able to sit:

With dignity and ease. His questions to counsel were few. The shafts of those he asked were feathered with courtesy and kindness, but pointed with sagacity. His basic ideas of right, long stored in his mind, made him keenly sensitive and responsive to the relative values of the equitable principles in their application to the varying factual ingredients of the different causes before him.¹²

In 1921 the terms of all state judges appointed in 1909, including Pennewill’s expired. What followed made 1921 long remembered as the year of the "deal".

In 1921, the Republicans had again elected as governor William D. Denney, fondly known by his close friends for his phlegmatic demeanor as "Wild Bill". Denney first announced, as expected, that he would reappoint his longtime friend and Dover neighbor, Chief Justice Pennewill, to a second term. But he denied reappointment to Chancellor Curtis; this was met with disbelief in the bar and sent political shock waves through the state. Chancellor Curtis, in the mind of nearly all members of the bar, had established himself as an able and excellent keeper of the Court of Chancery. Curtis wished to be reappointed and was confident that his record merited reappointment. As was later said of him:

In the performance of his duties [Curtis] decided the cases before him in accordance with the right as he saw the right under the law and the facts. Of all else he was utterly oblivious. No shadow of friendship, favor, animus, or effect upon himself ever neared him while arriving at his conclusions, or caused his hand to quaver while formulating his opinions, orders and decrees.¹³

Notwithstanding petitions signed and presented by more than seventy members of the New Castle County bar and a like petition from many members of the Kent County bar, Governor Denney offered the chancellorship not to Curtis, a fellow Republican, but to Josiah O. Wolcott, a Democrat and a United States senator from Delaware.

To be sure, Wolcott was a lawyer and a descendant of a distinguished family of lawyers and Delaware’s first popularly elected United States senator, but he had not practiced law for some time. Notwithstanding his deep admiration of Curtis, and to no surprise of his close friends, Wolcott readily accepted the governor’s appointment as chancellor and immediately resigned his seat in the Senate. This provided the Republicans with a rare political opportunity – that of replacing a Democratic senator with a Republican. Governor Denney appointed T. Coleman du Pont of Wilmington to the vacancy. DuPont had conferred a substantial benefit upon the state by buying the land necessary for a public road from the north to the south boundaries of Delaware and then personally paying for the construction of that road. But the use of eminent domain for land acquisition through farms in Kent and Susses Counties was not a popular action in all parts of those counties. See Clendaniel v. Conrad, Del. Supr., 83 A. 1036 (1912).

Denney's appointment of du Pont led to public charges and countercharges. Quickly the sequence of appointments and resignations came collectively to be known as the "deal" or the "dirty deal." Most fingers pointed to du Pont as its architect. The plan, of course, hinged on the governor's appointment of Wolcott as chancellor and denial of reappointment to Curtis. That denial was attributed by some to a decision Curtis had made four years earlier in the case of John W Cooney Co. v. Arlington Hotel Co., Del. Ch., 101 A. 879(1917), aff'd with exceptions sub nom. du Pont v Ball, Del. Supr., Del. Supr., 106 A. 39 (1918) (bill to assess stockholders for unpaid subscriptions, the most conspicuous such stockholder being T. Coleman du Pont).

Ultimate vindication of the regrettable and uninvited contest of two eminently qualified men for the same judicial office lay in the extraordinary contributions that Josiah 0. Wolcott made over the seventeen and a half years of his service as chancellor of Delaware. Judge Pearson later recalled the spartan "office" of Chancellor Wolcott, consisting of a small desk and gooseneck lamp, in the stacks of the State Law Library in Dover There Wolcott worked without a secretary, writing his opinions in longhand. Pearson attributed Wolcott's conduct to his determination to ask for nothing after succeeding Curtis.

Chancellor Wolcott carried to new heights the high regard and respect of lawyers and corporate boards throughout the country for the quality of the Court of Chancery's decisional law. During those years, Wolcott's judicial wisdom and judgment attracted lawyers and litigants from around the nation to Delaware as a preferred forum for litigation.

Governor Denney completed his judicial appointments in 1921 by replacing Boyce, as associate justice and resident judge of Kent County, with William Watson Harrington, a Dover neighbor and relative by marriage. He appointed Charles S. Richards of Georgetown associate justice and resident judge of Sussex County. Six months later, Governor Denney appointed Richard S. Rodney an associate justice at large. Scholar, historian and judge, Rodney was Delaware's Renaissance man in letters and law during a very productive life.

Thus, in 1922 the Supreme Court consisted of Chancellor Wolcott, Chief Justice Pennewill and Judges Harrington, Rice, Richards and Rodney. In the twenty-four years of Pennewill's term as chief justice, case filings in the Supreme Court increased from nine a year in 1909 to fifteen a year in 1933. Over those years approximately 237 cases were filed, or an average of ten new cases per year. Over the following twenty-three years, from 1933 to 1956, case filings would dramatically increase from eleven annually in the first five years to about thirty-five annually in the last five.

Particularly worthy of note among the opinions of the Supreme Court authorized by Pennewill as chief justice was Bodell V. General Gas & Electric Corp., Del. Supr., 140 A. 264 (1927) (bill to enjoin General Gas from issuing additional shares of stock to holders of Class A common rather than equally to Class A and Class B stockholders). The court affirmed the chancellor's findings that the defendant directors had justified the disparity in prices by a showing of fairness in the light of all the circumstances so that what appears to be an injury turns out to be a benefit to those complaining. The court concluded that "the acts of the directors objected to were performed in good faith, in the exercise of their best judgment, and for what they believed to be the advantage of the corporation and all its stockholders."¹⁴

Over the ensuing sixty plus years, the court has applied the underlying rationale of Bodell in various factual contexts, as recently as 1985 in Moran V. Household Int'l, Inc., Del. Supr., 500 A.2d 1346 (1985).

In 1933, upon completion of his twenty-fourth year as chief justice, Pennewill retired at age seventy-nine and died two years later in 1935. Pennewill's thirty-six years of service on the Delaware bench is said to be the "longest uninterrupted service of any judge in Delaware's history."¹⁵

Chief Justice Daniel J. Layton
1933-1945

Two weeks after the expiration of Pennewill's second term, Governor C. Douglas Buck announced the appointment of Daniel J. Layton as chief justice. Elected attorney general the previous November, and after serving in office for only six months, Layton resigned to become chief justice. Buck reappointed Josiah O. Wolcott as chancellor and Harrington and Richards as associate justices of the Supreme Court.

Chief Justice Layton, a fifty-four year old native of Sussex County, came from a family associated with Delaware's judicial history from earliest times. A man of robust physique and athletic prowess, he had been a pitcher at the University of Pennsylvania. Following graduation from the Law School of the University of Pennsylvania and service in the offices of Ward & Gray in Wilmington, Layton was admitted to the Delaware bar in 1903. Layton then practiced law in Wilmington until 1915, when he returned to Georgetown to practice until his election as attorney general and later elevation to the Supreme Court. Layton's dominance on the athletic field continued in the courtroom as a litigator and later in his service as chief justice.

During Layton's tenure as chief justice, his colleagues in the law courts included Judges William Watson Harrington, Charles S. Richards, Richard S. Rodney, David J. Reinhardt, Frank L. Speakman and Charles L. Terry. In 1935 Frank L. Speakman was appointed resident judge of New Castle County succeeding Judge David J. Reinhardt who had died after serving only two years on the bench.

In 12 years on the bench, Layton wrote 221 of the 511 opinions handed down by the law courts, including 49 of the 106 opinions issued by the Supreme Court. One of Layton's landmark decisions was Guth V. Loft, Del. Supr., 5 A.2d 503 (1939). In powerful and uplifting language, Chief Justice Layton defined for the court the duties imposed upon directors of Delaware corporations. The duty was that of a fiduciary, that is, the highest duty that the law creates. And in no uncertain terms he outlined the penalties for violation of that duty. While there are differing views as to whether Guth is or is not applicable to a specific fact setting, the law of the case is written in stone in Delaware corporation law. There is no dissent from its principles. Another of Layton's landmark decisions was Bovay v. H.M. Byllesby & Co., Del. Supr., 38 A.2d 808 (1944), reversing the chancellor's dismissal of a suit for an accounting and finding the complaint to state a claim for fraud and unfair dealing against corporate officers and directors for breach of trust, not "mere torts."

As William Prickett, Sr. stated at the proceedings in memory of Chief Justice Layton:

The Chief Justice wrote English, not a jargon of legalese. No "saids", "to-wits", "hereinaboves", or "aforementioneds" appear in any of his opinions. His language was striking in its clarity and in its picturesqueness.¹⁶

Unquestionably, Chief Justice Layton was a brilliant judge with a genius for defining fundamental concepts in corporate law. But, unfortunately his aggressive domination of a proceeding at oral argument frequently silenced even his strong-willed colleagues. Worse still, Layton's air of apparent hostility extended to the lawyers arguing before him, whom he would repeatedly challenge in a combative manner. Judge Collins J. Seitz recalls: "It's an old story in the law heard everywhere about the judge who kept interrupting the lawyer who was arguing his case. Finally, the lawyer got irritated, and said, 'Your Honor, I don’t mind your interrupting me, but I hope you win it for me!"'

Indeed, as an eminent lawyer remembers, Chief Justice Layton seemed to feel the "need to destroy you if he didn't agree with you." As a consequence, and despite his achievements, Layton failed to be reappointed in 1945 in one of the most painful episodes in Delaware judicial history. The story is recounted by Professor Carol Hoffecker in her recent book, Federal Justice in the First State.

Governor Bacon, a Republican, nominated Layton and Judge Charles S. Richards, both well-known Republicans, to succeed themselves as chief justice and associate justice respectively, but the Senate, a majority of whom were also Republicans, twice rejected both nominees. It was generally said that the opposition to Layton was mounted by Hugh M. Morris, a former United States District Court judge but then a practicing attorney in Wilmington, and joined in by certain Sussex County lawyers who thought they had suffered too long under Layton's wrath in the courtroom. In a compromise arrangement. the governor withdrew Layton's name and nominated Judge Richards to be the new chief justice. He was confirmed. The governor then appointed James B. Carey of Georgetown to be the resident judge for Sussex County, succeeding Judge Richards.

But the political and judicial fallout of Layton's failed renomination continued. In 1946 the term of Judge Richard S. Rodney ended. Having completed twenty-four years of service as Judge of the Superior Court and as an associate justice of the Supreme Court, Rodney was universally acknowledged to be one of the most respected and loved judges in Delaware history. Governor Bacon then took his revenge for the Senate's rejection of Layton, making Rodney the victim. Bacon let it be known that, notwithstanding the fact that the constitution required the appointment of a Democrat, under no circumstances would he reappoint Democrat Rodney. In January of 1946 Governor Bacon nominated Vice-Chancellor George Burton Pearson, Jr. to fill the vacancy on the Supreme Court created by the expiration of Judge Rodney’s term of office. Pearson, a close friend and admirer of Judge Rodney, had supported his candidacy for reappointment and, in the end, he accepted the governor's offer only when it became certain that Judge Rodney would not be reappointed.

Judge Rodney returned briefly to private practice before receiving an appointment to the United States District Court for the District of Delaware in 1946. He remained on that court until his death in 1963 and never failed to serve with wisdom and grace.

While the Layton years on the Supreme Court were often difficult and controversial for the bar, the period was one of outstanding growth for Delaware corporate law. Much of this growth was due not only to the judicial skill of Chancellor Wolcott but also to the brilliance and productive work of Chief Justice Layton. It is the judicial work product of luminaries like Curtis, Wolcott and Layton that provides the enduring legal and moral basis for much of what is right with the body of Delaware decisional law.

Chief Justice Charles S. Richards
1945-1951

Charles Sudler Richards' service of thirty-five years on the Delaware courts fell only one year shy of Pennewill's accomplishment and occurred in a time of rising caseload. Born in Georgetown in 1878, he had a family ancestry that went deep into Sussex County history. Educated in Georgetown public schools, Richards graduated from Wesley Collegiate Institute in Dover in 1899. He then studied law at the University of Pennsylvania and in his father's law office before admission to the Delaware bar in 1904.

Richards' opportunity for public service came in 1921 with the expiration of the terms of all state judges who had been appointed twelve years earlier. Governor Denney turned to Daniel O. Hastings for advice as to a proposed slate of judges and Hastings, in turn, consulted with Robert H. Richards, a leader of the bar and a man for whom Hastings had a deep respect. Richards suggested that the governor consider Richards' brother Sudler for one of the vacancies. Hastings relayed the suggestion to the governor who readily agreed. Shortly thereafter Governor Denney nominated Richards, then forty-three years old, to be resident associate judge of the Superior Court for Sussex County and an associate justice of the Supreme Court. He was promptly confirmed.

As a judge, Richards established a reputation as a quiet and somewhat distant person who possessed a trait common to all good judges: he was a good listener. To those who did not know him, said Chief Judge Caleb M. Wright of the United States District Court for the District of Delaware, at proceedings in memory of Judge Richards, he:

might have conveyed the impression of being a rather cold and formidable person. However, this was not the case. I will admit he was not one to waste words or to confide in others to any great degree. In private conversation he was a good listener - a virtue hard to come by these days. He might ask a few pertinent questions in order to get a full and complete expression from you of your opinion of the subject matter under discussion, but would not express himself if he did not believe it necessary or unless specifically called upon to do so, in which case this was done as succinctly as possible. He exhibited this same trait, but to a lesser degree, when sitting as a judge.

He had what I must describe, for no better term that comes to mind, as a "puckish sense of humor."¹⁷

In 1933 Richards was reappointed by then-Governor C. Douglas Buck to a second twelve-year term on the court; upon completion of that term in 1945 and following the failed nomination of Layton, Governor Bacon nominated Richards for chief justice. After confirmation, the Supreme Court consisted of Chancellor William Watson Harrington, Chief Justice Richards and law Judges Rodney, Speakman, Terry and Carey.

In February of 1946 Chancellor Harrington appointed Collins J. Seitz of Wilmington to succeed Pearson as his statutory vice-chancellor after the latter took Judge Rodney's former place on the Supreme Court.

One particularly notable decision issued by the Supreme Court during Richards' tenure was Ringling Bros. -Barnum & Bailey Combined Shows, Inc. v. Ringling, Del. Supr., 53 A.2d 441(1947), an opinion written by Judge Pearson defining a shareholder's voting rights in terms that can be found in decisions of the court forty years later.

On December 19,1947 Caleb R. Layton, III, son of former Chief Justice Daniel J. Layton, was appointed to succeed Judge Speakman when his term expired. In 1949 Judge Pearson, to the disappointment of his colleagues on the court, resigned to become an executive officer of Wilmington Trust Company, and Daniel F Wolcott of New Castle, son of former Chancellor Josiah O. Wolcott, was appointed to succeed Pearson as an associate judge of the Superior Court and an associate justice of the Supreme Court.

In that same year, the second leg¹⁸ of an amendment to the Delaware Constitution passed, making the statutory vice-chancellor a constitutional judge. The incumbent Seitz then became the seventh judge of the Supreme Court and perhaps the youngest constitutional judge in the twentieth century. He joined a court consisting of Chancellor Harrington, Chief Justice Richards and Judges Terry, Carey, Layton and Wolcott.

In December of 1950, upon the expiration of Chancellor Harrington's term of office, Wolcott was appointed chancellor of Delaware and Daniel L. Herrmann, then assistant United States attorney for Delaware, was appointed a judge of the Superior Court and associate justice of the Supreme Court. The final membership on the Supreme Court under Article IV of the 1897 Constitution consisted of Chancellor Wolcott, Chief Justice Richards, Judges Terry, Carey, Layton and Herrmann and Vice-Chancellor Seitz.

Pursuant to the terms of the 1951 constitutional amendment creating a separate Supreme Court, Chief Justice Richards became president judge of the Superior Court and Orphans' Court, offices he held until he retired on January 1, 1956. At the proceedings in memory of Judge Richards, Justice James B. Carey remembered him as:

very deliberate in making decisions. He would try to get to the bottom of every point. Many people looked upon him as a conservative man, yet it was during his term first as Chief Justice and then President Judge of the Superior Court, that numerous changes were made in our substantive and adjective law. The outmoded civil rules of practice in this Court were fully revised. The criminal rules were likewise modernized through a committee which he appointed. He concurred in all those changes.¹⁹

During the same memorial proceedings, William S. Potter, speaking on behalf of the state bar, captured Chief Justice Richards' judicial philosophy and temperament.

As a judge, Charles Sudler Richards was guided by basic principles. A conservative by nature and training, he was a strong adherent to strict construction. He was a common law judge firmly and steadfastly following the rule of stare decisis. Lawyers who appeared before him knew what would be required of them -comforting knowledge to the advocate. Above all else, he was a judge of outstanding patience and consideration to both lawyers and laymen. Throughout his thirty-four years on the bench he discharged his duties as Resident Judge, Associate Justice, Chief Justice and President Judge ably with dignity and firmness.²⁰

Well and accurately stated.

1. Richard S. Rodney, "Early Relations of Delaware and Pennsylvania," in The Collected Essays of Richard S. Rodney On Early Delaware 53, 64 n. 3.
   
2. Richard S. Rodney, "Early Delaware Judges," in The Collected Essays of Richard S. Rodney On Early Delaware 241.
   
3. Id. at 250.
   
4. Id. at 257.
   
5. Henry C. Conrad, History of the State of Delaware 970 (1908).
   
6. "Year Book of the Delaware State Bar Association," 37-52 (Address delivered June 24, 1933).
   
7. Pennewill's Recollections, no. 2 (June 24, 1933).
   
8. Paul Dolan, "The Supreme Court of Delaware 1900-1950," 56 Dick. L. Rev. 166 (1951).
   
9. A Short History of the Court of Chancery of the State of Delaware 1792-1992, at 33.
   
10. Daniel O. Hastings, Delaware Politics 1904-1954, at 25 (1961).
    
11. Id. at 27.
    
12. Memorial Tribute to Charles M. Curtis, Following his death in 1945 (from the private papers of Judge Pearson).
    
13. Id.
    
14. Id. at 268.
    
15. For an excellent memoir of Chief Justice Pennewill and a synopsis of his addresses to the Delaware bar Association, see the two-part piece authored by David A. Drexler, Esquire, in The Delaware Lawyer (1983).
    
16. Proceedings in memory of the Late Honorable Daniel J. Layton, 4 Del. Rptr. 5, 7 (1960).
    
17. Proceedings in memory of the Late Honorable Charles S. Richards, 8 Del. Rptr. 5, 20 (1970).
    
18. An amendment to the Constitution may be proposed in either House and, if approved by two-thirds of all members elected to each House, the first "leg" is completed. If the next General Assembly approves the amendment by the same two-thirds vote in each House, the amendment becomes part of the Constitution. See U.S. Const. art. XVI, § 1.
    
19. Proceedings in memory of the Late Honorable Charles S. Richards, 8 Del. Rptr. 5, 15 (1970).
    
20. Id. at 7.

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