Comfort v. Commonwealth

[440] The opinion of the court was delivered by Sergeant, J. The question raised on this indictment is, whether in case of resistance by a defendant to a constable in the service of a capias ad respondendum in debt, issued by a justice of the peace under the act of assembly of the 20th March,-1810, the constable may raise the posse comitatu's or power of the county, for his assistance, in the same manner as the sheriff may in writs of mesne process to him directed; and whether a person refusing to assist the constable when required, on resistance being made, is indictable for refusal. This is a power so necessary to the peacable administration of justice, that unless there be some explicit rule to the contrary, the law ought to uphold and maintain the exercise of it, as well by the constable as by the sheriff or any other officer employed to execute process. The jurisdiction of magistrates in civil suits, has, of late years, been much extended in this state; so that controversies of considerable importance are now placed in their hands, which were formerly confined to the courts. Their ministers of justice are the constables. There is as much reason why constables, in enforcing the law, should be invested with the power necessary to put down resistance and preserve the peace, as there can be in the instance of sheriffs. Acquiescence in the laws is the duty of every citizen; and in a government of laws, such as ours emphatically is, it is the duty of every citizen to aid in their execution.. If the constable can call no aid that will overawe resistance, then any defendant who is -strong enough to defy him, may baffle thei law with impunity, or bring on a hazardous and useless conflict for personal superiority. In regard to the sheriff, the law has been long well settled. He may raise the posse comitatus or power of the county; that is, such a number of men as ar*e necessary for his assistance in the execution of the king’s writs, quelling riots, &c.; and every person above the age of fifteen, not aged or decrepid, is bound to be aiding; and if they refuse to assist, may be punished by fine and imprisonment. 6 Bac. Abr. 169. The sheriff is obliged to do this on writs of execution; and although he is not obliged to do it on writs of mesne process, yet he may take the posse to serve mesne process. Ib. This power is not confined to the sheriff himself; it is likewise given to his bailiff or other minister of justice, having the execution of the king’s writs; who being resisted in endeavouring to execute the same, may lawfully raise such a force as may effectually enable them to overpower such resistance. Now a constable is a minister of justice; and, under our system, a most important one in civil proceedings, being the only officer whose duty it is to execute the numerous writs daily and hourly issued by magistrates, for debts and claims not exceeding one hundred dollars. They fall within the words as well as within the design and meaning of the rule [441] established by law, notwithstanding, at the common law, the constable has no authority to execute writs in actions of debt, trover, and others, now given to him by our acts of asssembly; yet, when the legislature substituted him for the sheriff in the exercise of this authority, it may well be considered as having designed to confer on him all the established means and facilities which the policy of the law before vested in the sheriff'or his bailiff. By the act of 1772, section 6, protection is afforded to any constable or officer, or any person or persons acting by his or their order, and in his aid, for any thing done in obedience to any warrant under the hand and seal of any justice of the peace; which applies generally, to civil as well as criminal cases, and is somewhat of a recognition of the authority of the constable to call on the posse for assistance, in cases where it is ordinarily directed or permitted by law to the sheriff The permission given by the 13th section of the act of 15th April, 1834, to a constable to appoint a deputy in a civil suit or proceeding, at the request or risk of the plaintiff or his agent, does not supply the necessity of the power in question, since a stubborn and daring defendant might successfully defy the deputy as well as the constable. On the whole, we are of opinion that the constable possesses, in this respect, all the powers conferred by the common law on the sheriff, in cases within the authority given to the constable, and that the indictment well lay against the defendants. Judgment affirmed.