court of common pleas, shall receive any of the fees or pro. entitled to receive fits thereof, until he shall pay to the treasurer of the com- the fees of his office. monwealth, the sum of four dollars, and produce to, and lodge with, the secretary of the commonwealth, the county treasurer's certificate therefor. II. Of the special justices thereof; their appointment and power. 1 By statute it is enacted, that there shall, from time to Stat. 1783, c. 49, s. 1. time, be a suitable number of special justices of the courts Of the appointment of of common pleas, appointed by the governor, with the special justices. advice and consent of the council, as the constitution directs, each one of whom to be an inhabitant of the county for which he may be appointed. And in case of the death, absence, or legal disqualifica- Stat. 1803, c. 155, s. 2, tion of one or two of the justices of either of said courts, Power and duty of a one or two of the special justices, as the case may require, special justice. shall sit in the place of such deceased, absent, or disqualified justice or justices, and shall, for the time being, have the same powers and duties as a standing justice or justices of said court: Provided, that no such court shall be holden by a smaller number than three justices, one of whom shall, in all cases, be a standing justice thereof. III. Of the nature and extent of the jurisdiction of these courts. By the statute, 1782, c. 11, s. 1, these courts had juris- Formerly the original diction of all civil actions of the value of more than jurisdiction of these forty shillings, arising or happening within their county, triable by common or statute law, of what nature or species soever the same might be. courts extended to all civil actions of the va lue of more than forty shillings. mited to cases wherein Afterwards, by statute 1783, c. 42, power was given to Afterwards their ori ginal jurisdiction in justices of the peace to try all civil causes wherein the civil actions was lidamages demanded did not exceed four pounds; and, by the damages exceeded four pounds. sect. 8th of the same statute, the common pleas had no longer any cognizance of civil actions, wherein the damage demanded did not exceed the sum of four pounds ; unless by an appeal from a justice of the peace; saving Mas. Stat. March 11, 1808. in such cases only where the damages such actions wherein the title to real estate was concerned. And now by a recent statute the jurisdiction of justices of the peace in civil actions, is extented to cases wherein And now they have the damages demanded do not exceed twenty dollars; original jurisdiction and the jurisdiction of the common pleas is taken away exceed twenty dollars. from all actions wherein the damages demanded do not exceed that sum. To this rule however there is the same exception as formerly, in regard to appeals from justices of the peace, and such cases as involve the question of title to real estate. In criminal cases, these courts exercise formerly belonged to the sessions. So, formerly, the jurisdiction of the courts of common the jurisdiction which pleas was exclusively of a civil nature: But now, by a recent statute these courts have jurisdiction of that extensive variety of petty crimes and misdemeanors of which the sessions formerly had cognizance. The statute transfer ring this jurisdiction the common pleas. from the sessions to Decisions under this Commonwealth v. 2 Mas. Rep. 530. Fbid. by the court. By this statute, 1803, c. 155, sec. 3, it is enacted, that the said courts of common pleas shall have, exercise, and perform, all the powers, authorities, and duties, which before and until the passing of the act, the respective courts of general sessions of the peace, within the several counties in this commonwealth by law had, exercised and performed, except as to erecting and repairing jails and other county buildings, allowing and settling county accounts, estimating, apportioning, and issuing warrants for assessing county taxes, granting licenses, and laying out, altering and discontinuing highways and townways, and appointing committees, and ordering juries for that purpose. Under this statute, it has been decided, that the court of common pleas, as successor to the court of sessions,. has no jurisdiction of an offence created by statute, unless expressly given by such statute. For the court of sessions, (to whose jurisdiction in criminal causes the court of common pleas has succeeded,) was erected by the statute of 1782, c. 14, and it is empowered to hear and determine all matters relating to conservation of the peace, and such offences as are cognizable by them at common law, or by the acts of the legislature. If by common law, mentioned in this statute, be understood strictly the common law of England, these words cannot have any effect; for the sessions, being created by statute, cannot have jurisdiction, but what is given it by some statute. But if these words import the common law of the commonwealth, they have an extensive operation, and are easily understood. The common law of this commonwealth consists 1. Of so much of the common law of England as our ancestors brought with them, and of the statutes then in force, amending or altering it; 2. such of the more recent statutes as have been since adopted in practice; and 3. of certain ancient usages, originating probably from laws passed by the legislature of the colony of the Massachusetts Bay, which were annulled by the repeal of the first charter, and from the former practice of the colonial courts, accommodated to the habits and manners of the people. From these principles it may be inferred, that the sessions in England having, at the time of the emigration, jurisdiction of all trespasses (except perhaps forgery and perjury) which were offences against law, when the statute of 34 Ed. 3, c. 1. was passed, giving the sessions, (among other things) the cognizance of all trespasses; our court of common pleas, as successor of the sessions, has jurisdiction of the same trespasses by the common law of the commonwealth; and that it has jurisdiction of no other trespasses, unless derived expressly from some statute. 160 Ibid. Ibid. TITLE XXXV. Stat. 1785, c. 75, s. 3. What persons are ex in the office of constable. CONSTABLES. 1. How these officers are chosen and sworn; who are exempted from serving in such office; penalty in case a person, chosen to such office and not exempted, refuses to serve; mode of recovering such penalty. 2. In what case constables are, ex officio, collectors of taxes. 3. Power of constables relative to the service of writs and warrants. 4. Their duty to notice and inform of certain offences. I. How these officers are chosen and sworn; who are exempted from serving in such office; penalty in case a person, chosen to such office and not exempted, refuses to serve; mode of recovering such penalty. A constable is a town officer, and, in the manner of other town officers, is chosen annually in the month of March or April. It is enacted, that no person shall be obliged to serve in any town office two years successively; nor shall any empted from serving person in commission for any office, civil or military, church officer, member of the council, senate, or house of representatives, for the time being, nor any one who has served in the office of a constable or collector of any town, district, parish, or precinct, within seven years, be obliged to serve in the office of a constable. Ibid. And every person chosen to the office of constable, and not exempted as aforesaid, who shall refuse to take Penalty in case a person chosen, and not the oath to that office prescribed, and to serve therein, if exempted, refuses to serve. he be able in person to execute the same, shall forfeit and pay to the use of the town, the sum of five pounds, and if in Boston, Salem, or Newburyport, ten pounds, and shall, if present, forthwith declare his acceptance or refusal; and in case he shall not declare his acceptance, the town shall proceed to a new choice, and so from time town to proceed to a to time until one shall accept and be sworn. And any person who shall be present and declare his In such case, the new choice. Ibid. refusal to serve in the office of constable, or who shall neglect, after being summoned as aforesaid, to take the For form of oath. oath of office, for the space of seven days next after the See Append. No. 11. summons, and shall also neglect to pay the fine aforesaid, shall, upon the application of the town-treasurer, be summoned before the court of general sessions of the for the penalty, in case it be not paid. peace in the county in which such town lieth; and a certificate under the hand of the clerk, or two of the select men, certifying that such person was legally chosen to the office of constable, shall be admitted as evidence of the fact. Mode of prosecuting What shall be deemed evidence that the person was legally cho sen. Ibid. Warrant of distress to son thus chosen and And if the person summoned shall make default, or appearing, shall not shew sufficient cause to the court for his refusal, the court shall order a warrant under the issue against the perseal thereof, directed to any of the constables of the same refusing. town then in office, to levy the fine by distress and sale of the offender's goods and chattels, returning the overplus (if any there be) together with the costs arising on such prosecution; and for want of goods and chattels, to commit the delinquent to prison until the same shall be paid. II. In what case, constables are, ex officio, collectors of taxes. The qualified voters of any town or district, at the same time they choose constables, may, if they see cause, likewise choose some meet person or persons to be collector or collectors of the rates or taxes that shall be assessed upon such town or district, and agree upon what sum shall be allowed and paid unto such collector or collectors, for his or their services; but if such collector or Stat. 1785, c. 70, s. 1. |