Years of experience with a milder and more individualized type of treatment, however, had had a more practical effect upon the apprehension of the problems involved in the administration of criminal justice. To the courts and to their contemporaries it had, no doubt, been repeatedly demonstrated in individual cases, that a practice conceived in mercy and humanity of spirit was bearing fruit in the permanent reclamation of offenders, that society as well as the individual was being served.

Filing.-Finally, the practice of "filing," peculiar to Massachusetts, must be mentioned. This procedure is best described by Chief Justice Gray.

It has long been a common practice in this Commonwealth, after verdict of guilty in a criminal case, when the Court is satisfied that, by reason of extenuating circumstances, or of the pendency of a question of law in a like case before a higher court, or other sufficient reason, public justice does not require an immediate sentence, to order with the consent of the defendant and of the attorney for the Commonwealth, and upon such terms as the Court in its discretion may impose, that the indictment be laid on file; and this practice has been recognized by statute (Sts. 1865, ch. 223; 1869, ch. 415, § 60). Such an order is not equivalent to a final judgment, or to a nolle prosequi or discontinuance, by which the case is put out of court; but is a mere suspending of active proceedings in the case, which dispenses with the necessity of entering formal continuances upon the dockets, and leaves it within the power of the Court at any time, upon motion of either party, to bring the case forward and pass any lawful order or judgment therein."

ENACTMENT OF FIRST PROBATION STATUTES IN MASSACHUSETTS AND OTHER NEW ENGLAND STATES

Commonwealth v. Dowdican's Bail precedes by only four years the formal incorporation of the concept of what we now know as probation into the statutes of Massachusetts. It may, in fact, be regarded as one of the last pronouncements in the courts of that jurisdiction in the matter of judicial authority to suspend sentence, since from 1878 onward Mas

Comm. v. Dowdican's Bail, 115 Mass. 133 (1874). The two statutes referred to by Chief Justice Gray do not appear to have been considered as creating the power as to cases in general but simply as regulating the exercise of general power in specific cases. Grinnell, supra note 56, at 611-612.

sachusetts courts were to operate in this matter under unquestionable statutory authority. However, it is to the judiciary of Massachusetts that credit must be given for the evolution of probation as a part of the administrative processes of criminal justice in this country." It was in the courts, especially those of Boston, that the idea was born and nurtured and allowed to follow a natural development. A large measure of the successful application of probation statutes later may be attributed to the fact that probation grew up originally as a discretionary process in the courts, unhampered by previous legislative limitations, so that it was possible for the judges themselves to ascertain from personal experience, individual judgment, and from the wealth of existing precedent in their own courts, the best practices to follow in particular cases and gradually to crystallize their experience into a method. It is this circumstance which must be regarded as the explanation of the fact that probation was already a workable system when it received its first statutory sanction and expression.

In 1878 the Massachusetts Legislature passed what may be considered the first probation statute. Though this law related only to the courts of criminal jurisdiction in Suffolk County (Boston), it contained all of those elements which today are deemed the fundamentals of a probation system. Because of the influence which this statute exerted upon the subsequent development of the administration of criminal justice, the fact that only a few of its essential features have been modified or abandoned to any appreciable extent is noteworthy." This fact is an indication of the degree to

74 No consideration of the development of the probation practice in Massachusetts can fail to recognize the invaluable services of the first volunteer probation officers, John Augustus and Father Rufus Cook. Their work furnished a final impetus for the enactment of the first probation statute in 1878. 75 Mass. Acts 1878, ch. 198. "AN ACT RELATIVE TO PLACING ON PROBATION PERSONS ACCUSED OR CONVICTED OF CRIMES AND MISDEMEANORS IN THE COUNTY OF SUFFOLK.

"SECTION 1. The mayor of the city of Boston shall appoint, annually in the month of May and whenever a vacancy occurs, either from the police force of said city or from the citizens at large, a suitable person whose duty it shall be to attend the sessions of the courts of criminal jurisdiction held within the county of Suffolk, to investigate the cases of persons charged with or convicted of crimes and misdemeanors, and to recommend to such courts the placing on probation of such persons as may reasonably be expected to be reformed without punishment. If such officer shall be appointed from the

which the courts of the commonwealth had advanced in developing their system of suspended sentence procedure. A reading of the statute itself reveals that the only feature new to the system already in use was the provision that the mayor of Boston should appoint a salaried probation officer. It is to be noted that in this, the first legislative pronouncement in the field, the word probation is used without explanation or definition. In this connection, Mr. Herbert C. Parsons, long secretary of the Massachusetts Commission on Probation, has made some interesting observations:

That the word itself is graphic and precise may be concluded from the fact that in no statute yet written has it been found necessary to make a definition. It was seized from the language, not so much of common use, as of that made somewhat familar in the field of theology. In those precincts it is not modern. In the burial ground of the Pilgrims at Plymouth, a tombstone bears this inscription:

"In memory of Frederick, son of Mr. Thomas Jackson and Mrs. Lucy, his wife, who died March 15, 1778, aged one year and five days.

"O! happy Probationer! accepted without being exercised, it was thy peculiar privilege not to feel the slightest of these Evils, which oppress thy surviving kindred."

citizens at large his appointment shall be subject to the confirmation of the board of aldermen, and he shall receive such compensation, to be paid from the treasury of the county of Suffolk, as the city council may determine. Such officer shall be under the general control of the chief of police of said city and be allowed a place in his office. He shall make reports as often at least as once in every 3 months, to said chief of police of the duties performed under this act together with the names of all persons placed on probation, their residences, and the nature of their offenses. In cases where it shall be deemed advisable by such officer that such persons shall be sent beyond the limits of the Commonwealth at the expense of said city, the city council shall have authority to appropriate such sum as may be necessary therefor, and said sum may be expended by said officer under the direction of the chief of police, and an account of said expenditures with the items thereof shall be rendered in said reports. It shall be the further duty of such officer so far as the same is practicable, to visit the offenders placed on probation by the court at his suggestion, and render such assistance and encouragement as will tend to prevent their again offending. Any person placed upon probation upon the recommendation of such officer may be rearrested by him upon the approval of the chief of police, without further warrant, and again brought before the court; and the court may thereupon proceed to sentence or make such other disposition of the case as may be authorized by law. Such officer may at any time be removed from office by the mayor.

"SEC. 2. Nothing herein contained shall authorize such officer to interfere with any of the duties required of the visiting agent of the board of State charities under the laws of this Commonwealth relating to Juvenile offenders. "SEC. 3. This act shall take effect upon its passage."

73115-39-VOL. II-3

In passing, it may be noted that this demise occurred precisely a century before the first probation law came to relieve “surviving kindred" of certain of "those Evils" which "oppressed" intervening generations."

76

Two years after the passage of the statute of 1878, another law was enacted permitting cities and towns to appoint probation officers." This statute, however, left the appointment of such officers to the option of the particular town or city, and few exercised the power. State-wide probation in Massachusetts dates only from 1891, when, following agitation by the Prison Association of Massachusetts,78 an act was passed transferring the power of appointment from the municipal authorities to the courts,79 and making such appointment mandatory instead of permissive. Each police district and each municipal court was required to appoint a probation officer. In addition to creating a truly State-wide system of probation, this act remedied what had been criticized as a defect in the original statute, the vesting of the appointive power in the municipal authorities rather than in the judges who would be less apt to be influenced by political consideration. Seven years later the authority to appoint probation officers was extended to the superior courts.80 Here again, it is of some importance to observe that the probation system in Massachusetts was first put into operation in the lowest courts, while in other States the system was first applied in the superior courts and very slowly extended to police and magistrates courts.

The important fact to bear in mind in regard to the Acts of 1878 and other acts relating to the lower courts and the Act of 1898 relative to the Superior Court is that the obvious purpose of the acts was not the creation of a new judicial power, but the provision for the appointment and payment of special officers to assist the court in the exercise of a wellestablished and well-recognized and approved existing usage, the nature of which was such that it could not be exercised to its full extent and with best results by the Court without special assistance and appropriation of funds to aid the Court by the investigation of facts.&

7 Parsons, Probation and Suspended Sentence (1918) 8 J. Crim. L. 694. "Mass. Acts 1880, ch. 129, § 1.

"Haynes, Criminology (1930) 353.

70 Mass. Acts 1891, ch. 356, §§ 1, 6.

80 Mass. Acts 1898, ch. 511.

81 Grinnell, supra note 56, at 614.

When the present century opened, only six States recognized, in statutes, the word probation and what it implied. But of these, Illinois, which had passed the pioneer juvenile court act in 1899, and Minnesota did not authorize the use of probation for adults. In 1898, the same year in which probation was authorized in the superior courts of Massachusetts, Vermont adopted its first probation law becoming thereby the first State to adopt the county plan. The Vermont act required the appointment of a probation officer by the county judge in each county of the State, each officer to serve all the courts in his county.82

In the following year, 1899, Rhode Island became the first State to adopt a system which was both State-wide and State-controlled. By legislation in that year, courts in Rhode Island were empowered to "provisionally place any offender" at any time before sentence on probation, with the exception of certain ineligible cases, falling into categories similar to those excluded later in probation statutes of other States.88

It is important to note that the hope of reformation in offenders, as expressed in the law, is of much more ancient origin [than the last half of the nineteenth century]. As to juveniles, it at least dates back to the first reformatory, which was an industrial school for boys, followed by the similar institution for girls, the reformatory for women, and then for men. But this earlier movement was based on the belief that reform was an institutional undertaking." Probation came as a protest against that notion and as an assertion that the moment to undertake the restoration to right conduct by an upbuilding process is the precise instant when the offender comes within the cognizance and control of the Court. It is

Vt. Pub. Acts 1898, No. 128.

R. I. Acts and Resolves 1899, ch. 664, §§ 5, 7.

"An interesting expression of the attitude of many courts toward a newer concept of reform is found in Commonwealth v. Mayloy, 57 Pa. 291, 298 (1868). In that case Thompson, C. J., said: "It cannot be doubted, I think, that the practice claimed, although it might be a great relief to the mind of a judge, would, to a great extent, be destructive of one of the objects of punishment, namely, the reformation of the offender. Let it be understood that he may have a portion of his sentence remitted any day by the judge, he will occupy his thoughts with the expectation, daily and hourly, and scheme and labor for the result. In such a state of mind reformation would be out of the question. His term of punishment would always be an uncertainty to him. A practice fraught with such results could scarcely have its origin in any considerable amount of experience in dealing with convicts, and ought to be regarded as an argument against its existence altogether."