Previous Page TOC Next Page

1560 1 of 4

ATTORNEY GENERAL/DEPARTMENT OF JUSTICE

The function of the Attorney General is an ancient one in English legal practice. The office can be documented as far back as 12771 and is probably substantially older. Most nations and states whose legal practices derived from British origins retain not only the function but the name of their chief public prosecutor.

In Delaware the office existed in rudimentary form even prior to the English era. In the Swedish period (1638-1655) the Governor did not have anyone other than himself to act as chief prosecutor and represent the public interest in civil and criminal cases. Governor Printz, in 1647, appealed to his superiors for the appointment of an official who might “attend to the judicial business” eliminating the unfortunate need for having “one and the same person appear in the court as plaintiff as well as judge.” Unfortunately, he never succeeded in getting his request granted.2

With the change to Dutch sovereignty in 1655 prints’ quandary was eliminated within much of present New Castle County. The City of Amsterdam, in 1656, took control of the region from Christina Creek to Bombay Hook and later of the entire area, extending thereto a far more liberal government than the previous pattern. One of the new offices thus provided was that of Schout. His duties combined those f a modern sheriff and public prosecutor, making it a rudimentary approach to the Attorney Generalship.

The office was filled at Fort Altena, now Wilmington, by May 1657 and at New Amstel, present New Castle, subsequent to September 1659.3

In 1664, Delaware came into the possession of the Duke of York, and for the first time under the direct influence of English legal practices. For some months both offices and office-holders remained unchanged.4 The substance of the office of Schout, under the Englis name Sheriff, continued.

Documenting the first use of the term Attorney General for the chief prosecutor in the counties-upon-Delaware is difficult. The practice of managing colonial affairs according to the usage in England unless specifically provided for the local statute doubtless explains the absence of legislation establishing the office in the Duke of York’s domain, the Province and Territories of Pennsylvania, or the Three Lower Counties after 1704. Civil lists of this transition period, more over, are fragmentary. The earliest actual listing of an Attorney General is a memorandum of the appointment of David French in 1723. From that date to 1739 eight appointments involving three individuals are recorded, with another in 1774.5

During the colonial years the Governor appointed the Attorney General.6 The provision was continued by the Constitution of 1776,7 with the added restriction of confirmation by the Privy Council. The term of office was five years.

The Constitution of 1792 likewise continued the Attorney Generalship as an appointive office with a five year term requiring confirmation by the upper chamber of the Assembly. This post was among nine which might not be held simultaneously with Federal office. The Attorney General was also barred from holding the State or County offices of Treasurer, Clerk of the Supreme Court, Prothonotary, Register or Sheriff. With Certain other officers he was ex-officio, a conservator of the peace throughout the State.8

Under the constitutional revision of 1831 the Attorney General remained an appointed officer, and conservator of the peace9 disqualified for Federal service or other major State posts during his term. In 1897 under the new constitution, the position became a four-year elective office, and its holder the third in line of secession to the Governorship.10

1560 2 of 4

ATTORNEY GENERAL/DEPARTMENT OF JUSTICE

By virtue of his office, the Attorney General is the legal advisor to the Governor and other officers of the State, giving opinions on the constitutionality of any proposed legislation and serving as the prosecuting officer in all cases of which the State is a party.11

The duties of the Attorney General are many and varied. The Delaware Codes of 1852 and 1915 give him responsibility for enforcement and prosecuting of violators of the laws in any cases involving intoxicating liquors; hucksters and peddlers; taxation of corporations; insurance fraud; vagrancy; arson; registration of births, deaths and marriages; pharmacists; elections; trespassing; corporate names; obstruction of harbors; petroleum products; oyster and fish laws; collection of inheritance taxes; bonds for state supply bidders; deeds for state forests; Delaware River rights; cannery inspections; establishment of bail limits; extradition of fugitives; escheator cases; licensing of retailers; bastardy appeals; income taxes; and the uniform fishery laws.12 He is authorized to draw up indictments, issue subpoenas for witnesses and administer oaths to those witnesses before presenting the State’s case to the court.

On 1907, the Legislature permitted the Attorney General to appoint from the bar of each county a resident lawyer to be Deputy Attorney General and to assist the Attorney General in any way possible.13 In 1919, he was permitted an additional Chief Deputy with state-wide jurisdiction to provide further assistance.14

Tax fraud was of special concern to the Attorney General and two pieces of legislation, in 192915 and 1935,16 encouraged him to provide continued advice to the Tax Department and prosecute any violators. The Attorney General appointed another Special Deputy to handle nothing but tax violations.

In 1968, shortly before the sweeping reorganization of state government, the legislature created a new Department of Justice, under the general supervision of the Attorney General, that title being inclusive of the Attorney General, the Chief Deputy, Deputy Attorneys General, and Special Deputy Attorneys. The Department is charged with:

1. Providing legal advice, counsel and services to all state agencies, boards, commissions, etc.

2. Providing legal counsel for all members of the above if they are subject of legal action.

3. Investigating matters of the public peace, safety and justice, and to subpoena witnesses and evidence as necessary.

4. Directing the activities of the State Detectives.

5. Taking charge of all criminal proceedings within the state.

6. Recommending legislation pertaining to law enforcement in the State.17

The Attorney General appoints a Chief Deputy Attorney General and six qualified New Castle lawyers, three qualified Kent Count lawyers, and three qualified Sussex County lawyers to be Deputies as well as any additional deputies with state-wide jurisdiction as needed. Five state detectives were appointed within the new department of Justice to conduct all investigative work for the Department.18

Two interesting pieces of relevant legislation were passed in 197320 and 1984.21 In the case of the former, the Attorney General is permitted to deputize any local law enforcement official with state-wide jurisdiction in order to assist the Department of Justice. As to the latter, the Attorney General is permitted to provide legal counsel to witnesses who cooperate with state prosecution in the event that the witness is sued as a result of his testimony.

1560 3 of 4

ATTORNEY GENERAL/DEPARTMENT OF JUSTICE

Presently, the Department of Justice is comprised of the Attorney General; Chief Deputy Attorney General; State Solicitor; State Prosecutor; Chief of Administration; Director of Special Investigations; and the Director of the Victim/Witness Assistance Program. There are approximately 100 Deputy Attorney Generals practicing in Delaware at present.

1560 4 of 4

ATTORNEY GENERAL/DEPARTMENT OF JUSTICE

1. Encyclopaedia Brittanica, 11th edition.

2. Instructions For Johan Printz, edited by Amandus Johnson, published by the Swedish Colonial Society at Philadelphia in 1930, page 120.

3. The Development of Local Government in Delaware, by Leon deValinger, Jr. Newark, Delaware, 1935, pages 43-46.

4. Ibid, pp. 137-141.

5. Governors Register, pp. 10-12, 23.

6. Delaware: A History of The First State, edited by H. Clay Reed, published at New York in 1947,

volume I, page 273.

7. Constitution of Delaware, 1776, Article 12, in part.

8. Constitution of Delaware, 1792, Article III, Section 8; and Article VIII, Section 1 and 5.

9. Constitution of Delaware, 1831, Article III, Section 8; and Article VII, Section 1.

10. Constitution of Delaware, 1897, Article III, Sections 11, 20 and 21.

11. Constitution of Delaware, 1776, Article VIII.

12. Delaware Code 1852. Delaware Code 1915.

13. 24 D.L. , ch. 93.

14. 30 D.L. , ch. 48.

15. 36 D.L. , ch. 8.

16. 40 D.L. , ch. 10.

17. 56 D.L. , ch. 326.

18. Ibid.

19. 57 D.L. , ch. 763.

20. 59 D.L. , ch. 177

21. 64 D.L. , ch. 418

jrf; September 14, 1988; February 9, 1989; May 4, 1989