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Origins of Police in Massachusetts

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OFFICE OF POLICE - HOW CREATED

The office of police is not known to the common law. It is created by statute and, as a statutory office, has attached to it only such powers and duties as are specifically given by statute. In Massachusetts comparatively few new powers are given, the more important ones existing through annexation to the office of the common-law powers and duties of constables. (Dillon Munic. Corp., s. 10; Com. v. Dugan, 12 Met. 233; Com. v. Hastings, 9 Met. 259.) These latter, however, are so important as to merit some comment in any book of rules intended for the guidance of a police department.

CONSTABLES UNDER COMMON LAW - THEIR POWERS AND DUTIES

In the common law, a constable is called a "peace" officer or "conservator of the peace." By "peace" as thus used, is meant the tranquility enjoyed by the citizens of a community where good order reigns among its members. It is the natural right of persons in political society, any intentional violation of which is a breach of the peace. (Davis v. Burgess, 54 Mich. 514; State v. White, 18 R. I. 473; Beach v. Hancock, 27 N. H. 233; Bishop's New Crim. Law I, s. 533; Cooley on Torts, Second Edition, 186.) "Besides actual breaches of the peace, any thing which tends to provoke or excite others to break it is an offence of the same denomination." (IV. Bl. Com. 150.) In short as Blackstone concisely puts it, "Peace is the very end and foundation of civilized society." (I Bl. Com., 349.)

In this capacity of conservator of the public peace the dignity and the responsibility of the office of police chiefly lies.

Speaking generally, the peace of a community is preserved through fear in the minds of those tempted to violate it that they will be caught and punished, and the strength of this restraining influence is, of course, proportionate to the certainty of arrest and punishment. Consequently, almost every state of civilized society has found it necessary to maintain officers charged with the duty of discovering and arresting offenders and enforcing the laws. It is said that in ancient Rome the public safety was entrusted to a select body of seventy-five hundred men, whose functions corresponded practically with those of the policemen of London. (Dillon's Munic. Corp., s. 3a.) In the civilization which produced the common law, this public duty was imposed locally upon officers called constables, selected for the purpose from the inhabitants of the parishes or townships which they served. These officers were armed with very large powers of quelling threatened or incipient breaches of the peace, arresting without warrants, imprisoning, breaking open houses and the like. One of their principal duties was to keep watch and ward, similar in main purpose to the day and night patrol of a police department; "ward, guard or custodian" being chiefly Intended for the day to apprehend rioters and robbers on the highway, while "watch" was applicable to the night only. The constable could appoint watchmen at his discretion who were his deputies and, for the time being, exercised his authority. It is not necessary, however, to detail here all the powers and duties of the common-law constable, since each member of the department, as a statutory donee of most of them, must be presumed to be generally familiar with them.

CONSTABLE, LOCAL REPRESENTATIVE OF PEACE OF THE REALM

It is worth noting, however, that the constable was the local representative of the peace of the realm - the King's peace, as it was then called - and was responsible for it; and that it was deemed so important that his office should always be filled, that service in it was compulsory and neglect to serve, or to serve satisfactorily, punishable. The constable could not divest himself of his office at will, for reasons which have been stated as follows:

"As civil officers are appointed for the purpose of exercising the functions of carrying on the operation of government and maintaining public order, a political organization would seem to be impotent which should allow the depositories of this power to throw off their responsibilities at their own pleasure. This, certainly, is not the doctrine of the common law. In England, a person elected to a municipal office was obliged to accept it and perform its duties, and he subjected himself to a penalty by refusal. An office was regarded as a burden which the appointee was bound in the interests of the community and of good government to bear. From this it followed, of course, that after the office was conferred and assumed, it could not be laid down without the consent of the appointing power. This was required in order that the public interest might suffer no inconvenience for the want of public servants to execute the laws." (U. S. v. Edwards, 103 U. S. 471.)

CONSTABLE-REQUISITES AS TO CHARACTER AND RESIDENCE

The constable had to be of good character and an actual resident of the parish he served. The office was a personal, not a pecuniary one. No salary was attached to it. His personal presence in the parish was indispensable, for he was presumed to be known to all the inhabitants of the parish, and they were all bound to obey his orders and to aid and assist him whenever called upon, in the exercise of his lawful authority. In short, he was a public officer, well known in the community, and exercising an indispensable governmental function. The importance of the office did not arise wholly, however, from the broad powers attached to it, but largely from the close contact which the constable had with the life of the people among whom he dwelt. Strangers could not long remain in the community without his knowledge, nor little could go on without coming to his ears. This combination of official authority with intimate knowledge of the character and habits of the members of the community was well adapted, in earlier times, to preserve a wholesome respect for law and order, and to foster the belief that violators of the peace would be marked and punished.

SYSTEM OF COMMON-LAW CONSTABLES PROVED INADEQUATE

As cities grew up and crimes increased, however, defects developed in the method of policing by constables. Without adequate compensation, the constables could not afford to devote "the time required by the changed conditions to properly safeguard the peace. Then again, if there were several constables in a community, each was an independent officer, and there was no system compelling them to co-operate with each other. In short, while the common-law constables possessed practically the same powers as those of the modern police, they ceased to be adequate instruments for preserving the peace, when conditions of society became more complex, because of the lack of that singleness of purpose, co-operation and discipline which are fundamental features of every good police department of modern times. The results which followed are graphically stated in Macaulay's "History of England," volume I, page 282, under the title, "Police of London about the end of the Seventeenth Century," and as to still later periods by Justin McCarthy in his "Reign of Queen Anne," volume I, page 203, and by Dr. Colquhoun in his "Treatise on the Police of the Metropolis," London, 1795. Nevertheless, these defects in the police system of England remained practically unremedied until 1829, when an act was passed by Parliament providing for a trained corps of policemen (still called "constables" in the act) for the metropolis of London, with a systematic day and night patrol. This act also provided for a criminal investigation department, with headquarters at Scotland Yard; hence the name of the London detective bureau. (See McCarthy's "Reign of Queen Anne"; Nelson's Encyclopedia, title "Police.")

ESTABLISHMENT IN MASSACHUSETTS OF A SUITABLE NIGHT WATCH AND A WARD

The offices of constable and of the watch and ward were transplanted in Massachusetts with the common law, but with the growth of Boston into a city, the method of policing by the common-law constables apparently became inadequate for the same reasons as in England. By chapter 10 of the Province Laws, passed in 1699, it was provided that in cases where no military watch was established, justices of the peace, acting with the selectmen of a town, or, in case no justice of the peace dwelt in the town, the selectmen alone, could order a suitable watch nightly within such town from nine o'clock in the evening until sunrise the next day and the place or places where the same should be kept, and also a "ward" on the Lord's day and other days, and appoint the members of such watch and ward.

CONSTABLES IN CHARGE OF THE WATCH - THEIR RESPONSIBILITIES

The constables of the town were enjoined to be in charge of the watch, to see that all disturbances and disorders in the night were prevented or suppressed; to examine all persons walking abroad in the night after ten o'clock of their business and whither they were going, and, in case such persons gave no reasonable satisfaction, then to secure them until the next morning and to carry them before one of the nearest justices of the peace for examination.

THE WATCH AND WARD - THEIR DUTIES AND MAINTENANCE

The act also required that the watchmen should walk the rounds in and about the inhabited parts of the town to prevent any danger by fire, and to see that good order was kept. All male persons in the town of the age of sixteen years or upward, being able-bodied and having certain property qualifications, were made liable to keep watch and ward, with certain exceptions. The services of these members of the watch and ward were compulsory, and no provision was made for their compensation. It was provided, however, that if the appointing authority should judge that the watch might be kept more for the benefit and safety of the town in some other manner than as authorized by the act, and the inhabitants of a town agreed to support the charge thereof, the justices of the court of general sessions should determine how the cost should be apportioned and levied upon the inhabitants. This latter provision allowed the maintenance of a paid force of watchmen, if any town deemed it necessary.

FIRST FORMAL MOVE FOR PATROL OF STREETS

By chapter 4 of the Province Laws, passed in 1712. it was provided that when a watch was appointed in any other manner than that of the "constable watch" authorized by the act of 1699, the "number and qualifications" of persons whereof such watch should consist should be agreed upon by the town, as their pay was to be agreed upon under the earlier act; that one "sober, discreet, able-bodied householder" should be appointed to take charge and command of the watchmen and see that they did their duty; that such commanding officer should carry as a badge of his office a "quarter pike with spire on the top thereof"; and that every watchman should carry a "staff with a bill fastened thereon"; and that the watch should "walk in and about" the streets, lanes and wharves of the town at night, the first formal move toward a patrol of streets. The foregoing legislation was the first step in the establishment of a system of watchmen, paid, qualified, fixed in numbers and officered.

HEADS OF DIVISIONS OF THE WATCH APPOINTED

By chapter 5 of the Province Laws of 1761 - 62, the selectmen of Boston were authorized to choose not exceeding thirty of the inhabitants to serve as watchmen, the town "agreeing to pay the charge" and to appoint one of each division of the watch to be head or constable of that division. This act, which was originally to continue for three years, was revived from time to time until November 1, 1785, when it finally expired. Chapter 82 of the Acts of 1796-97 re-enacted substantially the provisions of the laws of 1699-1712 into a general law applying to all towns, and provided especially that the expenses incurred in the maintenance of the watch should be levied and collected as other expenses of the town. This act of 1796-97 was substantially preserved as late as chapter 31 of the Revised Laws of 1902, relative to appointment of watch and ward.

HEAD CONSTABLE OF THE WATCH APPOINTED

By chapter 26 of the Acts of 1801, the selectmen of Boston were authorized to appoint such a number of watchmen as they deemed expedient, to be paid by the town, together with a head constable to superintend the watch, and a constable for each division of the watch, the constables of divisions to report every morning to the head constable "an account of their doings and of the state of the town during the night" for the information of the selectmen. The head constable and watchmen appointed under this act were to have the same powers and be held to perform the same duties as were required of watchmen under the general law of 1796-97. From this time until the enactment of the city charter in 1822, the public officers entrusted with the preservation of the public peace consisted of constables supplemented by watchmen with the powers of constables, whose services might be paid for if the town agreed.

ESTABLISHMENT AND ADMINISTRATION OF THE POLICE

Under the city charter of 1822, the administration of the "police" was transferred from the selectmen to the mayor and aldermen of the city. The word "police" is used in this charter apparently for the first time in legislation on the subject as descriptive of constables, watchmen and other officers performing the duties of conservators of the peace. The word seems to have been applied first in England about thirty-five years before to that power of the state which occupies itself in preventing mischief. (See Bentham, Introduction to Morals and Legislation, vol. XVI, 17, note 2, 1789.) At the time of the charter of 1822 the word included officers appointed under the authority of the general act of 1796-97 and of the special act of 1801. By chapter 123 of the Acts of 1838, the mayor and aldermen were authorized to appoint such "police officers" for the city I as they might judge necessary, with all or any of the powers of the constables of said city.

It was not until chapter 354 of the Acts of 1853, however, that the creation of an organization approaching the present conception of a police department was authorized. By this act, the city council was authorized to unite by ordinance the watch and police departments of the city, and to establish regulations therefore.

The council might also authorize a chief of police, who should exercise all the powers and duties which, by the laws then in force, were exercised by the head constable of the watch; and deputy chiefs, captains and lieutenants, who should exercise all the powers and duties then exercised by the constables of the several divisions of the watch. The act further provided that the officers and policemen appointed should have and exercise all the powers and duties then exercised either by the watch or by the police of the city, by virtue of existing laws and particularly by virtue of the provisions of chapter 172 of the Revised Statutes, relative to the establishment of the watch and ward.

It was further provided that the mayor and aldermen should have all the powers and duties in relation to the officers and policemen which they had over the watchmen and the police of the city.
The appointment and control of police officers of the department continued vested in the mayor and aldermen until 1878, when a board of police commissioners, three in number, appointed by the mayor was created.

In 1885 the administration of the department was transferred to a board of three appointed by the governor.

In 1906 the administration of the department was transferred to a single police commissioner appointed by the governor.

COMMON-LAW OFFICE OF CONSTABLE GRADUALLY ADAPTED TO CHANGED CONDITIONS

It is interesting to trace these steps by which the common-law office of constable was gradually adapted to the changing conditions of society and population until it became the present office of police, filled by men specially qualified and trained for it, required to devote their whole time to it, and cooperating to a common end under the direction of a single head, appointed by the governor for this sole purpose; and to note that the transition was accomplished by assimilating the office of constable into the office of police, rather than by creating a wholly new office with specifically enumerated duties and powers. To have done otherwise would have fallen short of the purpose. The office of the common-law constable comprised duties as well as powers, the duties of conservator of the peace. These duties, rather than the powers, gave the office its importance. The powers were incidental, in order to enable the constable to better perform his duties. If, in early times when the constable received no salary, his office had consisted merely of the powers given it by the common law, without any obligation to exercise those powers, the constable would never have been called the guardian or conservator of the peace. The incentive to exercise vigilance and activity would have been wholly lacking. It was the imperative obligation to take care that the peace was preserved that made the constable an active and important agent of government. Likewise, a police officer, though paid to patrol the streets, would be of little value to society if his office did not also carry with it, as its very essence, the same obligation. Consequently, throughout the successive steps in legislation which led to the institution of the office of police, the duties, as well as the powers, of constables have been transferred from one form of office to the other, so that, while formerly it was the imperative duty of the common-law constable to preserve the "King's peace," it is no less today the imperative duty of the police officer to preserve the "peace of the commonwealth."

POLICE INDISPENSABLE IN THE MAINTENANCE OF GOOD GOVERNMENT

Without magnifying the importance of the office of police, it may still be asserted that its real dignity" and the indispensable part it plays in the maintenance of good government arc probably not yet fully appreciated either by the public at large or, perhaps, even by the officers themselves. It should be otherwise if, as has been said, peace and good order are essentially the end and foundation of civilized society. As to the public at large, it may be said that the preservation of peace and good order has been such an habitual state of being in this commonwealth that it is perhaps but natural that it should be accepted as a matter of course, without reflection upon its cause and meaning.
It is only in some rare emergency, when the protecting forces of society are crippled or paralyzed, that the importance of preserving the peace and the means by which it is accomplished are forced upon public attention. On such fortunately rare occasions, the lawless elements, ever present in a community, are released from restraint. Assaults, robbery, riot, and destruction of property almost inevitably follow. Business is suspended, stores arc closed or barricaded and even where the individual himself does not suffer personal violence, he and his family hesitate to venture far on the streets in the daytime, and at night are filled with apprehensions. When, under such circumstances, the thoughtful citizen looks out from his home at dark upon the deserted streets, reports fresh in his mind of violence going on in other parts of the city and of an influx of criminals seeking to profit by the disorder, then, for the first time probably, he is aroused to the reflection that when; he is thus thrown upon his own resources" for the protection of himself and his family, civilized government has ceased; and then, probably for the first time, he realizes the significance of the presence and uniform of the police and the indispensable part they play in the maintenance of government. As to the police themselves, it is believed that an awakening to the high dignity of their office has already set in. Certainly, their surest path to public respect and reward lies in the direction of this ideal of high and important public service. In order that, they may be guided in this path and the practical performance of their duties is the main purpose of the rules and regulations promulgated for the government of the department.