Historical Significance:
The office of constable finds its origin in the ancient Roman civilization as Comes Stabuli (Count of the Stable) the commander of the Roman cavalry. In feudal times the office of constable was one of high military rank. The constable was the highest judge in military offenses and in questions of chivalry and honor, eventually becoming the ex officio commander in chief of the military forces.
In England shortly after the Conquest the High Office of Constable appears as the seventh great officer of the crown possessing both civil and criminal powers. Since 1521 the title of High Constable has been granted only for special ceremonies of state, i.e. Coronations etc. Petty or local constables flourished throughout parishes and townships of Great Britain and were an important factor in maintaining the King's peace and keeping good order among his subjects. In the common law, a constable is referred to as a "peace officer" or "conservator of the peace". It was the constables duty to protect and maintain the tranquility enjoyed by the citizens of a community where good order reigns among its members. Any intentional violation of which was considered a breach of the peace. Even today police officers throughout the British Empire, its protectorates, and Canada retain the title of constable.
The office of constable was transplanted in Massachusetts's colonial times with the common law. In each of the original communities, the constable was one of the first offices created and was an important factor in maintaining the King's peace in the new land. The constable continues today as a municipal officer.
M.G.L. c.41, Section I. The office of police however, is not known to the Common law. It is a statutory office and has attaches to it only those powers provided in statute. In Massachusetts relatively few new powers are provided, the more important ones existing through the annexation of the Common law powers of constables with the exception of serving and executing civil process. M.G.L.c.41, section 98 and M.G.L.c.22, Section 9A. It is interesting to note how the common law office of constable has adapted to the changes in our society until that portion of its powers of preservation of the peace was assimilated into our present say statutory office of police. This transition eliminated the need to create an entirely new office with specifically enumerated powers and duties.
The Difference Between Constables and Deputy Sheriffs:
Although constables essentially provide the same services at a municipal level that deputy sheriffs provide at a county level there are significant differences between the two offices.
Constables may serve judicial process only in the cities or towns in which appointed or elected. Deputy sheriffs appointed by a county sheriff may serve judicial process within that specific county. Constables are required by law to be bonded for the service of civil process. M.G.L. C.41, Section 92. M.G.L. C.41 Section 93 - Deputy sheriffs are not required to be bonded, they usually rely upon the Sheriff's bond fixed by the Supreme Court. Constables usually operate as independent contractors. Deputy Sheriffs usually operate as for-profit corporations. The most important distinction between constables and deputy sheriffs apart from territorial jurisdiction is the Ad Damnum (damages) limitation imposed upon constables in the service of original process. Although the work performed is exactly the same, the law provides that if damages being sued for any civil complaint exceed $2,500.00 then service upon a Defendant can only be made by a sheriff or deputy sheriff. M.G.L. C.41, Section 92 - The only alternative to this course of action is for a lawyer to seek approval of a motion under M.R.C.P., R.4c for the appointment of a Special Process Server. This may be helpful if the amount of damages in a suit exceeds the $2500.00 limit, or if the defendants are located in more than one municipality, or more than one county. It does however require a trip to court and an appearance before a Judge who may or may not grant the motion.
Costs of Serving Process:
There may be a cost savings in using constable service where possible. Constables being municipal officials usually travel shorter distances to effect service, whereas deputy sheriffs covering an entire county, out of necessity usually travel longer distances. Since fees in part are based upon travel and the use of a motor vehicle, distance can significantly effect cost of service.
The fees for service of process in Massachusetts by Sheriffs, Deputy Sheriffs and Constables are provided for by statute and are arrived at by combining a number of items provided for in the statute. The fees charged generally include: cost of service, copies, travel, and use of motor vehicle, but may include additional fees for attachments, poundage, keepers, assistants, appraisers, posting, advertising, adjournments, auctioneers, arrests, custody, taking bail, etc. if applicable. M.G.L.-C.262 Section 8 - There are no statutory fees for services provided by special process servers or disinterested persons.
What Can Constables Serve:
Constables who are bonded in the maximum amount, presently $5,000.00 they within the cities or towns in which they are appointed or elected serve the following:
All Summons and Complaints with an amount of damage(s) not exceeding $2500.00
Writs and Trustee Process not exceeding $2500.00
Real Estate Attachments not exceeding $2500.00
Executions not exceeding $2500.00
Supplementary Process in any Amount
Summary Process (Evictions) under M.G.L. 239
Small claims Notices, Notices to Show Cause
Restraining orders, Orders of Notice, Injunctions
Notices of all Kinds and Demands
Capias, Civil, Criminal
Criminal Process, 209A's, Habeas Corpus, Mittimus or other required precept
Posting, Notices of Town Meetings and other Notices
Treasurers Warrants and Proclamations
Certain Probate and Family Court Process
Subpoenas and other certain Writs and Paper from the District Courts, The Superior, Supreme Judicial, and Federal Courts
Acting as Disinterested Person the following may be served anywhere by a constable, including all kinds of process not required to be served by an officer:
Summons and Complaints for Divorce
Contempt, Modification and Paternity together with certain other Probate and Family
Court Process
Subpoenas, Civil, Criminal, Federal General Notices and Letters of all Kinds
Constables may also be appointed as Special Process Servers under the provisions Of M.R.C.P., R.4c and F.R.C.P., R.4c upon Motion made and approved by the Court.
Conclusion:
This article briefly outlines the evolution of the office of constable and its role in the Massachusetts legal system, and should not be considered as an in-depth review of all aspects of the constable's involvement in the serving and executing of legal process.
