ORIGINAL CHARTER OF THE BOROUGH OF WILMINGTON ^[1]

ORIGINAL CHARTER OF THE BOROUGH OF WILMINGTON¹

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¹ This is the original Charter of the Borough of Wilmington; and though its provisions have, in the main, been superseded by subsequent legislation, yet, because of its antiquity, and because rights, public and private, of a continuing nature, have been acquired under it, it has been deemed proper to publish it. The date of the grant of the Borough Charter is Nov. 16th, 1739 (altered and re-established by act of Jan. 31st, 1809, 4th vol. D. L. 275-288, &c.). The date of the act of the Legislature superseding the Borough Charter and continuing its incorporation as a city is Jan. 18, 1832 (8th vol. D. L. c. 108, p. 97).

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GEORGE THE SECOND, by the grace of God, of Great Britain, France and Ireland, King, Defender of the Faith, and so forth.

TO ALL TO WHOM THESE PRESENTS SHALL COME GREETING:

WHEREAS, Our loving subjects, Joseph Pennock, William Shipley, Joshua Way and others, freeholders and inhabitants of a tract of land situated on Christiana river, in our County of New Castle, and within the Government of our Counties of New Castle, Kent and Sussex on Delaware, having been at great charge in purchasing of the said land, building of houses, removing their families, and making great improvements thereon, so that by their industry and expense, it is at this time in a flourishing condition:

And whereas the freeholders and inhabitants aforesaid have humbly besought our trusty and well beloved, Thomas Penn, Esquire, one of the proprietors of the counties aforesaid, and George Thomas, Esquire, with our Royal approbation, Lieutenant Governor thereof, under John Penn, the said Thomas Penn and Richard Penn, Esquires; true and absolute proprietors of the Province of Pennsylvania, and counties aforesaid, for our letters patent under the great seal of the said Government, to erect the said tract of land into a Borough, and to incorporate the freeholders and inhabitants of the same with perpetual succession, and to grant to them such immunities and privileges as might be thought necessary for the well ordering and governing thereof:

Therefore, Know Ye, that We, favoring the petition and good purposes of the said freeholders and inhabitants, and willing to promote trade, industry, rule and good order, amongst all our subjects, of our special Grace, certain knowledge, and mere motion, have erected, and by these presents do erect the said tract of land into a Borough, forever hereafter, to be called by the name of WILMINGTON, which said Borough shall extend, be limited and bounded, in the manner it is now laid out, pursuant to the plan thereof hereunto annexed.

And we do further grant and ordain, that the streets of the said Borough shall forever continue as they are now laid out and regulated, and that the end of each street extending into the River Christiana, and such other places on the said River, or elsewhere within the limits aforesaid, as shall hereafter be thought fit, shall be and continue free for the use and service of the said Borough, and the inhabitants thereof, who may improve the same for the best advantage of the said Borough, and build wharves so far out into the said River as the Burgesses and assistants hereinafter mentioned shall from time to time see meet, the ends of which streets and wharves aforesaid, shall be and remain for the use of the said Borough forever for lading and unlading of goods, wares and merchandise, out of ships, boats or other vessels whatsoever.

And we do nominate and appoint William Shipley and Thomas West to be the present Burgesses, and Timothy Stidham, Joseph Hewes, Joshua Way, George Howell and David Ferris, assistants for advising, aiding and assisting the said Burgesses in the execution of the powers and authorities herein given them, and Enoch Lewis to be High Constable, and Goldsmith Edward Folwell to be Town Clerk, until the eighth day of September next ensuing, and from thence until others shall be duly elected (a) or appointed in their places, as is hereinafter directed and no longer.

(a)

Harrington, Justice: "The corporation of Wilmington enjoyed by patent, dated in 1739, the right to elect two burgesses and six assistants, with a high constable and town clerk," &c.

Gray vs. The State of Delaware, 2 Har. 76 at 93. (yr. 1836).

And we do by these presents, for us, our heirs and successors, further give, grant and declare, that the said Burgesses, freeholders, and inhabitants, within the Borough aforesaid, and their successors, forever hereafter, shall be one body politic and corporate, in deed and in name, and them by the name of the Burgesses and inhabitants, of the Borough of Wilmington, in the County of New Castle, on Delaware, one body politic and corporate, in deed and in name.

We do for us, our heirs and successors, fully create, constitute and confirm by these presents, and by the same name of the Burgesses and inhabitants of this Borough of Wilmington, that they may have perpetual succession, and that they, and their successors, by the name of the Burgesses and inhabitants of Wilmington be, and at all times forever hereafter shall be persons able and capable, in law, to have, get, receive and possess lands, tenements, rents, liberties, jurisdictions, franchises and hereditaments to them and their successors in fee simple, or for term of life, lives, years or otherwise, and also goods, chattels and other things, of what nature or kind soever, and also to give, grant, let, sell, and assign the same lands, tenements, hereditaments, goods and chattels, and to do and execute all other things about the same, by the name aforesaid, and also that they be, and shall be, forever hereafter, persons able and capable in law, to sue, and be sued, plead and be pleaded, answer and be answered unto, defend and be defended, in all or any of our Courts, or other places, and before any Judges, Justices and other persons whatsoever, within the Government of the said Counties aforesaid, in all manner of actions, suits, complaints, pleas, causes and manners whatsoever, and that it shall and may be lawful, to and for the Burgesses and inhabitants of Wilmington aforesaid, and their successors forever hereafter, to have and use one common seal, for the sealing of all business whatsoever, touching the said Corporation, and the same, from time to time, at their will, to change and alter. (a)

(a)

Harrington, Justice: "The borough of Wilmington was incorporated by letters patent in November, 1739. It received a charter from the General Assembly in 1772," &c.

State vs. Wil. City Council, 3 Har. 294 at 301. (yr. 1840)

And we do, for us, our heirs, and successors further and by these presents grant full power and authority, for the Burgesses, Constable, and assistants, freeholders, together with such inhabitants, house-keepers, within the said Borough, as shall have resided therein, at least for the space of one whole year next preceding any such election, as is hereinafter directed, and hired a house and ground, within the said Borough, of the yearly value of five pounds or upwards, (a) on the eighth day of September, yearly, unless that day happen to fall on Sunday, and then on the next day following, publicly to meet in some convenient place, within the said Borough, to be appointed by the Chief Constable, and then and there to nominate, elect, and choose by the ballot, able men of the inhabitants of the said Borough, to be Burgesses, High Constable, and such other officers within the same, for serving and assisting the Burgesses, in managing the affairs of the said Borough, and of keeping of peace and good order therein, from time to time as to the majority of the said electors shall seem requisite and necessary; which election shall be taken from time to time, by the High Constable, of the year preceding, and the names of the persons so elected, shall be certified under his seal to the Governor for the time being, and the Burgess who shall have the majority of votes shall be called the Chief Burgess of the said Borough, but in case it shall so happen that the said freeholders and inhabitants, housekeepers aforesaid, shall neglect or refuse to elect, and choose Burgesses and other officers in manner aforesaid, or that no return of their names, shall be made to the Governor within five days next after such elections, yearly and every year, as aforesaid, that then it shall and may be lawful for the Governor for the time being to nominate, commission, and appoint Burgesses, a Constable and assistants, for the year, to hold and continue their respective offices until the next time of annual elections, appointed as aforesaid, and so as often as occasion shall require.

(a)

An interesting account of the various acts relating to the qualifications of electors in the colonial period, is contained in the case of Frieszleben vs. Sballcross et al., 9 Houst. 1 at from 60 to 64. Among other things is the following:

Comegys, C. J.: "From this review of the law which has always prevailed here in regard to the qualification of voters, two things seem to be clear,—that is, that the right to vote was conditional altogether upon the payment of taxes previously assessed ("scot and lot," as tersely expressed in the homely but perfectly well understood language of the ancient enactments), and that the poll-tax was adopted 100 years, at least, before 1797, for those who had no property." 64-65 (yr. 1890.)

And we further will and ordain, that all the said Burgesses for the time being, shall be, and are hereby empowered, and authorized, to be conservators of the Peace within the said Borough, and shall have power by themselves, and upon their own view, or in other lawful manner, to remove all nuisances and encroachments on the said streets, public landing places, and highways within the said Borough aforesaid, as they shall see occasion, with power, also, to arrest, imprison and punish rioters, and other breakers of the peace or good behaviour, award process, bind to the peace or good behaviour, commit to prison, and to make calendars of the prisoners by them committed, and the same to return, together with such recognizances and examinations as shall be by them taken, to the next Court of Quarter Sessions of the County of New Castle, there to be proceeded on, as occasion may or shall require, and to do all and singular, other matters and things within the said Borough, as fully and effectually to all intents and purposes, as Justices of the peace, in their respective Counties, can or may lawfully do; (a) but before any of the said Burgesses, Constable, or other officers, shall take upon them the execution of their respective offices, they shall take and subscribe to the oath or affirmation of allegiance, and such other oaths and affirmations, as by the laws in our Government in such cases are provided, together with the oaths or affirmations for the due execution of their respective offices, and every Chief Burgess so elected or appointed, from year to year, as aforesaid, shall, within five days immediately after the election, present himself to be qualified, by taking the oaths or affirmations aforesaid before the Governor for the time being, or before such other person as the Governor shall think fit to appoint for that purpose, and on failure of his so presenting himself, unless disabled by sickness or other reasonable cause, such as shall be allowed of by the Governor for the time being, another Chief Burgess, shall, from time to time, and as often as occasion shall require be appointed, in the stead of such person so failing to appear and qualify himself as before directed, which Burgess so to be appointed by the Governor for the time being, shall and may enjoy their offices, until the day of election next ensuing such their appointment, and the Chief Burgess having qualified himself in the manner aforesaid, shall and may enter upon his office, and the other Burgess, Constables or other officers, shall and may qualify themselves for their respective offices, by taking and subscribing the oaths or affirmations aforesaid, before the said Chief Burgess, or before any one of the Justices of the Peace of the said County of New Castle for the time being, who are hereby authorized and empowered to administer the same.

(a)

Harrington, Justice: "For though it is contended that the franchise of holding a court existed in the corporation of the borough of Wilmington, under its charter of 1772, * * * it is admitted that this franchise was but the power to appoint certain officers called burgesses, whose judicial functions extended only to the discharge of those duties within the borough, "which justices of the peace for the county of New Castle could lawfully do."

Gray vs. The State of Delaware, 2 Har. 76 at 89. (yr. 1836)

The franchise of holding a court, also existed under the letters patent granted in November, 1739. Justice Harrington refers to this in the above mentioned case in the following language:

These "burgesses by the same patent" (1739) "and also by the act of 1772, were invested with all the judicial powers, within the corporation limits, of justices of the peace within the county" 93.

And we do further grant for us, our heirs and successors, to the Burgesses, freeholders and inhabitants, housekeepers aforesaid, that it shall and may be lawful for them, to assemble themselves together within the Borough aforesaid, at such time and place, as the Burgesses herein before nominated shall appoint, and then and there, by a majority of voices to elect some fitting place or places, within the said Borough, for holding of Fairs and Markets, which place or places so made choice of, being recorded by the Town Clerk, in some book by him to be kept for the recording of the transactions of the said Corporation, shall thereafter remain, for the holding of the said Fairs and Markets, without any alteration forever, which election, the principal Burgess, or on his neglect, refusal or absence, the other Burgess shall take in such manner, and at such times, as by the said Burgesses, High Constable and assistants shall be agreed on.

And we do further give and grant, to the Burgesses and inhabitants aforesaid, that they and their successors forever hereafter may have, hold and keep within the said Borough two markets in each week, that is to say, one market on Wednesday, and one market on Saturday, in every week of the year forever.

Also two fairs there in every year, the first to begin on the twenty-fourth day of October next ensuing, and to continue that day and the next day following, and the other of the said fairs to begin on the twenty-eighth day of April, and to continue that day, and the next day after, and when either of those days shall happen to fall on Sunday, then the said fairs to be kept the next day, or two days following, together with the free liberties, customs, profits and emoluments to the said markets and fairs belonging or in anywise appertaining forever.

And we do hereby further grant, and ordain, that there shall be a Clerk of the Market for the said Borough, who shall have the assize of bread, wine, beer, wood, and all other provisions brought for the use of the said inhabitants, who shall and may perform all things belonging to the office of a Clerk of the Market within the said Borough, and that Goldsmith Folwell shall be the present Clerk of the Market, who shall be removable for any malfeasance in his office by the Burgesses and assistants aforesaid and another from time to time appointed and removed, as they shall find it necessary.

And we do further grant unto the said Burgesses, High Constable and assistants, and their successors, as much as in us is, that if any of the inhabitants of the said Borough shall be hereafter elected to the office of Burgess, Constable, or assistants, and having notice of his or their election, shall refuse to undertake, and execute that office to which he is so chosen, it shall and may be lawful for the Burgesses, High Constable and assistants then acting, to impose such moderate fines on the person or persons so refusing, as to them shall seem meet, so always that such fines imposed on a Burgess elect, do not exceed ten pounds, and the fine on the High Constable or an assistant elect, do not exceed five pounds each, to be levied by distress and sale of the goods of the party refusing, by warrant under the hand and seal of one of the said Burgesses, or by any other lawful way or means whatsoever, for the use of the said Corporation, and in any such case it shall and may be lawful for the said inhabitants to proceed to the choice of some other fit person or persons, in the stead of such who shall so refuse; and it shall and may be lawful for the said Burgesses, High Constable, and assistants, for the time being, to assemble Town Meetings as often as they shall find occasion, at which meetings they may make such ordinances and rules not repugnant to or inconsistent with the laws of the said government as to the greatest part of the inhabitants seem necessary and convenient for the good government of the said Borough, and the same rules and orders to put in execution, and the same to revoke, alter, and make anew, as occasion shall require, and also to impose such mulcts and amercements, upon the breakers of the said ordinance as to the makers thereof shall be thought reasonable, to be levied as above directed in case of fines, to the use of the said Borough, without rendering any account thereof to us, our successors, or to the proprietors aforesaid, their heirs or successors, also at the said meetings to mitigate or release the said fines and mulcts, upon the submission of the parties.

And we further grant, that it shall and may be lawful for the Burgesses and assistants and inhabitants aforesaid, and their successors, when they shall see occasion, to erect a Court House within the said Borough.

And we further will and grant, that when any doubts shall happen to arise, touching this present Charter, that the same shall, in all courts of law and equity, be construed and taken most favorably and beneficially for the said Corporation.

IN TESTIMONY WHEREOF, we have caused these our letters to be made patent: Witness, George Thomas, Esquire, with our Royal approbation, Lieutenant Governor and Commander in Chief of the Province of Pennsylvania and counties aforesaid, under John Penn, Thomas Penn, and Richard Penn, Esquires, true and absolute proprietaries of the Province and counties aforesaid, the sixteenth day of November, in the year of our Lord one thousand seven hundred and thirty-nine,¹ and in the thirteenth year of our reign.

GEORGE THOMAS.

I do hereby certify that the above and within mentioned charter is recorded in the book M., page 350, 351, 352, 353, 354, at New Castle, in the Rolls office. Given under my hand and seal, the 17th day of March, 1739.¹

WILLIAM SHAW, Recorder.

¹ These dates though seemingly inconsistent, are correct, and are to be explained by the fact that until the adoption of the new style (for the computation of time), in England (1752, the 25th of March was New Year's day; so that the 16th day of November, 1739, was actually four months prior to the 17th day of March, 1739.