History on
Constables
Ancient in origin, the office of Constable has been of high power
and prestige in the history of the world. In feudal times, the office of Constable was one
of high military rank, and eventually ex officio commander in chief of the military
forces. He was the highest judge in military offenses and in questions of chivalry and
honor. He was the supreme arbitrator in tilts, tournaments and martial displays.
The term High Office of Constable appears in England shortly after
the Conquest as the seventh great officer of the Crown, possessing both Civil and Criminal
powers. Since the year 1521, the title of High Constable has not been granted except for a
special ceremony of state.
The Constable has been a part of our American civilization since the
earliest of Colonial times. In each of our original communities, the Constable was one of
the earliest offices created, and it was his important duty to keep the king's peace.
The Constable continues today as a public officer possessing
extensive powers. See Hartley Vs. Inhabitants of Granville 216 Mass.38. However the duties
of Constables have been modified from time to time by custom and statue.
Some Powers and Duties
Constables possess somewhat extensive powers. Blackstone
Commentaries 356. There may be a residue of common law power contained in the office of
Constable, but not withstanding this, the office is vested with a broad range of statutory
power. The statue providing the general powers of Constables goes so far as to give them
the powers of sheriffs to require aid in the execution of their duties. G.L.c.41, section
94 reads in whole:
"Constables may serve the writs and processes described in
section ninety-two and warrants and processes in criminal cases although their town,
parish, religious society or district is a party or interested. They shall have the powers
of sheriffs to require aid in their execution of their duties. They shall take due notice
of and prosecute all violations of law respecting the observance of the Lord's day,
profane swearing and gaming. They serve all warrants and other processes directed to them
by the selectmen of their town for notifying town meetings or for other purposes. They may
serve by copy, attested by them, demands, notices and citations, and their returns of
service thereof shall be prima facie evidence; but this provision shall not exclude the
service thereof by other persons."
In conjunction with this, if a citizen neglects or refuses to assist
the Constable in the execution of his duties in a criminal case, in the preservation of
the peace or in the apprehension or securing of a person for a breach of the peace, or in
a case of escape or rescue of persons arrested upon civil process, then that citizen is
subject to fine or imprisonment. G.L.c.286,section24.
A Constable possesses a power of entry not generally found in most
municipal offices. G.L.c.140,section 201 provides in whole:
"A sheriff, Marshall or their deputies, a constable or police
officer may at any time enter a billiard, pool or sippio room, bowling alley, skating
rink, the licensed premises of a common victualer or room connected therewith, or a grove
required to be licensed under section one hundred and eighty-eight, or any building
therein, for the purpose of enforcing any law; and whoever obstructs or hinders the
entrance of such officer shall be punished by a fine of not less than five nor more than
twenty dollars."
As the powers of the Constable unfold in this memorandum, the words
of Chief Justice Rugg take on a significant meaning. He said, in Hartley Vs. Inhabitants
of Granville. (supra) "The theory on which the office is now based (apart from the
function of serving papers) is that a number of competent men scattered throughout the
territory of each of the county towns, charged with such duties, is an important factor in
making them safe for residence by law abiding people." The office is to be reserved
for only the most competent and responsible of men.
Indeed, Constables possess the awesome power of arrest in certain
circumstances. An illustration of the power of arrest is contained in G.L.c.271, section
2, which reads;
"Whoever, in a public conveyance or public place, or in a
private place upon which he is trespassing, playing at cards, dice or any other game for
money or other property, or bets on the sides or hands of those playing, shall forfeit not
more than fifty dollars or be imprisoned for not more than three months; and whoever sets
up or permits such a game shall be punished by a fine of not less than fifty nor more than
one hundred dollars or by imprisonment for not less than three nor more than twelve
months. If discovered in the act, he may be arrested without a warrant by a sheriff,
deputy sheriff, constable or any officer qualified to serve criminal process, and held in
custody, in jail or otherwise, for not more than twenty-four hours, Sunday and legal
holidays excepted, until complaint may be made against him for such offense."
And again in c.138, section 55, the Constable is given the power of
arrest without warrant "any person whom he finds in the act of illegally
manufacturing, selling or exposing or keeping for sale, storing, transporting, importing
or exporting alcoholic beverages or alcohol......"
The Constable, under G.L.c.266, section 120, may arrest without a
warrant any person who he finds committing a trespass, after notice, upon " a
dwelling house, building, boat or improved or enclosed land, wharf or pier of
another........"G.L.c.160, section 220 confers upon the Constable the power of arrest
without a warrant in certain cases involving persons unlawfully riding upon a"
locomotive engine, tender, freight car, caboose or other conveyance not part of a
passenger train."
The Constable, may arrest without a warrant, any person who is
" keeping a house, room or place resorted to for prostitution or lewdness, "as
provided in G.L.c.272, section 10.
The Constable has the statutory power of arrest in several other
instances, notably, inter alia, under our health laws. He has also the common law and
statutory power to arrest in cases involving breach of the peace.
It is significant to note here that the power of the Constable
predates the powers vested in our organized police forces, and is independent thereto. It
is for this reason that our police offices, both state and local derive much of their
power from that of Constables. Hence, G.L.c.41, section 98 confers Constabulary powers on
our police. " The Chief and other police officers of all cities and towns shall have
all the powers and duties of constables except serving and executing civil process."
G.L.c.22, section 9A confers these Constabulary powers upon our state police.
In some instances the Constable has the power to pre-empt our local
officials. For example, our Chief of Police as keeper of the lockup, as required by
G.L.c.40, section 37 must make the local lockup accessible to the Constable and if he
fails or refuses to do so, he is subject to fine. And, under G.L.c.41, section 39 "if
a person appointed to collect taxes in a town refuses to serve, or if no person is elected
or appointed a collector of taxes, the Constables of the town shall be the collector of
taxes."
The Constable has the power to enforce our election laws and, under
G.L.c.56, section 57 has the power to arrest without a warrant violators thereof.
And, even the local drug store is not exempt from the jurisdiction
of the Constable, G.L.c.138, section 30F provides that the doings and books of the
pharmacy be open to the Constable.
Further, "The jurisdiction of a constable in ordinary cases, is
limited to the Town in which he is (appointed), but for special cases, there are
exceptions to this rule." Beard Vs. Seavey, 191 Mass. 503. For example, " A
Constable may arrest on a capias, in a criminal case, outside the town for which he was
(appointed) but within the same county, and within the jurisdiction of the court issuing
the warrant. Sullivan Vs. Wentworth 137 Mass. 233. And also within this context I commend
to you G.L.c.41, section 95:
"A Constable, in the execution of a warrant or writ directed to
him, may convey prisoners and property in his custody under such process beyond the limits
of his town, either to the justice who issued it or to the jail or house of correction of
his county. If a warrant is issued against a person for an alleged crime committed within
any town, any constable thereof to whom the warrant is directed may apprehend him in any
place in the commonwealth."
In most cases, an applicant for the office of Constable will not be
aware of the broad range of powers connected with the office. He will be concerned usually
with the service of civil process only. G.L.c.41, section 92 provides in parts, a
Constable, "may within in his town serve any writ or other process in a personal
action in which the damages are not laid at a greater sum than eight hundred dollars, and
in a replevin in which the subject matter does not exceed in value eight hundred dollars,
and any writ or other process under chapter two hundred and thirty-nine."
A two pronged caveat is in order here. First, while an applicant
might be primarily concerned with the civil process aspect of the office, there are cases
where a Constable has recklessly invoked his non-civil powers to the great detriment and
embarrassment of both the Appointing Authority and the Court. Secondly, on the question of
service of civil process, there is a voluminous body of knowledge required to adequately
perform in the manner directed by our statues. I believe that this is what Chief Justice
Rugg meant when he referred to "competent" individuals in the community.
In this memorandum, it would be impossible to exhaust all of the
inherent and statutory powers vested in the Constable. It was my purpose to survey the
Powers of Constables with the objective of demonstrating that the office is of extremely
high significance in the eyes of the law.
APPOINTMENT
There is no doubt that a Constable is a municipal officer.
G.L.c.41,section 1, provides for the election or appointment of Town Officers. It reads in
part:
"Every town at its annual meeting shall in every year when the
term of any incumbent expires, and except when other provision is made by law, choose by
ballot from its registered voters the following Town Officers for the following terms of
office..................one or more Constables for a term of three years, unless the town
by vote provides that they should be appointed."
The appointive power appears to be now in the Board of Selectmen,
G.L.c.41,section 91A provides:
"The selectmen in any town may from time to time appoint for
terms not exceeding three years, as many constables as they deem necessary."
A Constable who is to serve civil process must give a bond to the
Town, with sureties approved by the selectmen. Prudence would seem to require that this be
the maximum amount required by statue, which is five thousand dollars. Since service by
un-bonded constables is void, the Board might consider that all appointments be conditioned
upon the Constable obtaining bond within reasonable time of appointment.
In closing, as a point of human interest, even the colloquial term
COP had its origin in the activities surrounding Constable. It means " Constable on
Patrol.".
Frank D. Rodick, Town Counsel
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