PENNSYLVANIA FRATERNAL ORDER OF CONSTABLES

Facts of the Case

On February 20, 1870, Andrew Neil, constable of Monongahela City, included in his sworn quarterly return to the Court of Quarter Sessions of Washington County a report against Peter McCullough for keeping a tippling house, selling liquor on Sunday, and selling to minors and men of intemperate habits. The court issued a bench warrant; McCullough gave bail. The district attorney subsequently sent a bill to the grand jury charging McCullough with furnishing intoxicating drink to one Hezekiah Cooper, a person of known intemperate habits, in violation of the Act of May 8, 1854 — the “Buckalew Act.” The grand jury returned a true bill. McCullough moved to quash, arguing the indictment lacked a required foundation: no accusation before a committing magistrate supported by oath, no presentment from the grand jury’s own knowledge, and no sufficient basis for the court’s extraordinary intervention directing the grand jury to investigate. The Court of Quarter Sessions denied the motion. McCullough was convicted the same day and sentenced to a $20 fine and ten days’ imprisonment. He obtained a writ of error to the Pennsylvania Supreme Court.

Questions

1. Is a constable’s sworn quarterly return to the Court of Quarter Sessions — identifying offenses within his jurisdiction — a legally sufficient basis for the court to issue process and for the district attorney to send a bill to the grand jury, absent a prior hearing before a committing magistrate?
2. Does a constable’s sworn return carry the legal weight of an oath and charge before a magistrate, defeating a motion to quash?
3. Does the Pennsylvania Bill of Rights require all criminal prosecutions to originate before a committing magistrate, foreclosing prosecution based solely on a constable’s return?
4. Are a constable’s common law powers of presentment abrogated by the absence of an express duty to make returns in the particular charging act?

Conclusions

Justice Agnew, writing for a unanimous court, affirmed. The opinion assembled the most comprehensive catalog of constable common law powers in the Pennsylvania reports, opening with a declaration that has never been overruled: “The office of constable is ancient, his duties important and powers large.” Agnew catalogued those powers — all designated “common-law powers” — citing Blackstone (Book I, p. 356), Commonwealth v. Deacon, and Hawkins’s Pleas of the Crown: the constable may arrest, imprison, and break open doors to keep the peace; may arrest on reasonable cause of suspicion alone; may arrest for a breach of the peace in his presence and deposit the prisoner in jail with the jailer bound to receive him; and is bound to present to the court all offenses cognizable by that court. The last power was most directly at issue. Agnew held that a constable’s sworn return is “in the nature of an official information against the offenders” and “is the equivalent of an oath and charge before a magistrate.” The Court of Quarter Sessions was therefore bound to take notice. On the constitutional question, Agnew rejected McCullough’s Bill of Rights argument: the Pennsylvania Constitution had never been understood to require that all prosecutions originate before an inferior magistrate. Courts had always given charges to grand juries; district attorneys had always sent up bills; grand juries had always presented from their own knowledge. Stripping those pathways would deprive justice of powers “universally conceded.” Critically, Agnew held that common law constable powers are not negated by a charging act’s silence: because the duty to present offenses is a common law duty of the office, the absence of an express mandate in the Buckalew Act did not render the return nugatory. The conviction was affirmed.

Blackstone Compared — Floor, Not Ceiling

Justice Agnew cited “1 Black Com. 356” for the proposition that a constable may “arrest, imprison, break open doors, and the like” to keep the peace. The cited passage in Book I, p. 355, reads in full: “The general duty of all constables, both high and petty, as well as of the other officers, is to keep the king’s peace in their several districts; and to that purpose they are armed with very large powers, of arresting, and imprisoning, of breaking open houses, and the like.” Agnew quoted the power-conferring first sentence. Blackstone’s following parenthetical — that it is “perhaps very well” that constables are kept in ignorance of the extent of those powers — was a sociological aside about the class of men typically appointed to the office, not a legal narrowing of authority. Agnew correctly ignored it as doctrine. Blackstone in Book IV, p. 289, reinforced Agnew’s framework with even clearer language: the constable “hath great original and inherent authority with regard to arrests” — authority that is original, predating legislative elaboration, and inherent, belonging to the office itself. Agnew’s key methodological holding — that common law powers survive the absence of statutory reaffirmation in a particular act — flows directly from Blackstone’s “inherent” characterization. If the authority is inherent to the office, it does not require statutory renewal in each subsequent enactment to remain operative. McCullough treats Blackstone’s two-part structure correctly: the core peace-keeping and presentment powers are the common law floor; the “infinite number of other minute duties laid upon constables by a diversity of statutes” are statutory additions built atop that floor. Commonwealth v. Roose, 710 A.2d 1129 (Pa. 1998), inverted this structure by treating the statutory additions as the only permissible source of constable authority — an inversion that McCullough had foreclosed more than a century earlier.

Editorial Note: McCullough *has never been overruled, yet its core methodological holding — that common law constable powers are self-executing and not conditioned on statutory reaffirmation — has been systematically ignored in post-*Roose Pennsylvania jurisprudence. Courts narrowing constable authority must contend with Agnew’s plain declaration that those powers are “all common-law powers,” grounded in Blackstone’s “great original and inherent authority” and surviving without legislative renewal.

Syllabus
Opinion of the Court — Justice Agnew

Petitioner
Peter McCullough, Plaintiff in Error

Respondent
The Commonwealth of Pennsylvania

Docket No.
October and November Term, 1870, No. 104

Decided By
Pennsylvania Supreme Court — Thompson, C.J.; Read, Agnew, Sharswood, and Williams, JJ.

Lower Court
Court of Quarter Sessions of Washington County (Acheson, P.J.)

Citation
McCullough v. The Commonwealth, 67 Pa. 30 (1870); opinion delivered January 3, 1871

Argued
November 14, 1870

Decided
January 3, 1871

Advocates
D.F. Patterson (with T.H. Baird) — for Peter McCullough

(No paper-book or oral argument for the Commonwealth)