The jurisdiction of Constables in Massachusetts is in most cases limited to the cities and towns in which they are appointed or elected, with limited exceptions. Constables usually serve civil process, they may however, serve both civil and criminal process and also enforce capias arrest warrants. M.G.L. c. 41 s. 98 provides 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, allowing them to exercise common law arrest powers, state police are given the same powers throughout the commonwealth under M.G.L. c25, s97. Although the service of civil process makes up a major portion of their duties Massachusetts Constables have broad law enforcement authority. The Massachusetts Supreme Judicial Court stated in Harley v. Granville supra, "the general duties of a Constable are to be vigilant to preserve the peace, to prevent the commission of crime and to arrest all offenders who might be arrested without a warrant and to procure warrants in other instances of crimes committed." Hartley also states, Constables “are not expected to devote a considerable portion of their time to the work of their office or to quit his ordinary occupation to act as a detective and search for offenders. In this regard they stand on a basis quite different from the members of an organized police force.” The Municipal Police Institute, now the MCJTC, issue a report in May 1977, on the powers of constables noting that modern police out only evolved from constables but they derive their common law powers arrest from constables, also stating “Constables still possess extensive law enforcement powers to this day”.
A constable requires an extensive knowledge of civil law, and the criminal law aspects that may arise from civil law violations. In this regard courts prefer constable to handle these matters rather than police officers as they can execute both civil and criminal process.
Another indication of a constable’s power is reflected in Boston Police Training Bulletin 9-85. “Constables, this is an ancient office with extensive powers. In relation to the enforcement of criminal laws, although not the usual function, it is important to know constable’s have the same rights of arrest as do police officers”. Bulletin 9-85, further states when a constable is serving criminal process or making a valid arrest, any police officer shall aid in the same manner as they would another police officer.
A constable is, however, a public peace officer and requires a bond as condition for faithful performance of their duties, and M.G.L. c.23, s. 1 and 8 provides for their bond to be put in suit for failure to perform their duties by persons so aggrieved. Massachusetts Constables can also enforce motor vehicle law, M.G.L. c. 90, s. 1, definitions Police Officer or officer, “any constable or other officer authorized to make arrest or serve process, provided he is in uniform or displays his badge of office".
Throughout history the Constable's office has been one of power and prestige. Second only to the King, the Constable was the highest judge in military offenses and in questions of honor. He was the supreme arbitrator in tournaments and displays.
The High Office of Constable possessed 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 America since it's founding. In each of Americas original communities, the Constable was one of the earliest offices created to keep the peace.
The Constable continues today as a public officer possessing extensive powers.
Powers and Duties of the Constable
The constable possesses an extensive array of powers; common law powers and a broad range of statutory powers as well. The statute providing the general powers of Constables give them the powers of sheriffs in the execution of their duties under M.G.L.c.41, section 94:
"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. M.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."
Indeed, Constables possess the awesome power of arrest in certain circumstances. An illustration of the power of arrest is contained in M.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 M.G.L. 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 M.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." M.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 M.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 officers, both state and local derive much of their power from that of Constables. Hence, M.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."
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 M.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 M.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 M.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. M.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 special note: While constables posess a broad range of civil and criminal arrest powers, in most jurisdictions arrests for criminal matters are left to the local police departments.
Appointment of the Constable
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, M.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."
Although most citizens don’t realize it, the term "Cop" referred to the earlier activities of the constable. It means "Constable On Patrol".