Magistrate

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A magistrate is a judicial officer. In common law systems a magistrate usually has limited authority to administer and enforce the law. In civil law systems a magistrate may be a judge of a superior court. In some jurisdictions, such as Australia, the term has become both Federal Magistrates and state magistrates have jurisdiction similar to a judge. A magistrate's court may have jurisdiction in civil cases, criminal cases, or both. A related, but not always equivalent, term is Chief Magistrate, which (historically) can refer to political and administrative as well as judicial officers.

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[edit] Etymology

Derived from Middle English word "magistrat" known since c.1374, "civil officer in charge of administering laws", from Old French magistrat, from Latin "magistratus", from magister "master", itself from contrastive adjective from the adverb magis "more", itself a comparative degree of magnus ("great").

[edit] Original meaning

In Roman antiquity, the word magistratus was created to indicate the highest offices of state, and analogous offices in the local authorities such as municipium, which were subordinate only to the legislature of which they generally were members, often even ex officio, and often combined judicial and executive power, together constituting one jurisdiction. In Rome itself, the highest magistrates were members of the so-called cursus honorum -'career of honors'. They held both judicial and executive power within their sphere of responsibility (hence the modern use of the term "magistrate" to denote both judicial and executive officers), and also had the power to issue ius honorarium, or magisterial law. The Praetor (the office was later divided into two, the Urban and Peregrine Praetors) was the highest judge in matters of private law between individual citizens, while the Curule Aediles, who supervised public works in the city, exercised a limited civil jurisdiction in relation to the market.[1] Roman magistrates were not lawyers, but were advised by jurists who were experts in the law.

The term was maintained in most feudal successor states to the western Roman Empire, mainly Germanic kingdoms, especially in city-states, where the term magistrate was also used as an abstract generic term, denoting the highest office, regardless of the formal titles (e.g. Consul, Mayor, Doge), even when that was actually a council. The term "chief magistrate" applied to the highest official, in sovereign entities the head of state and/or head of government.

[edit] Continental Europe and its former colonies

Under the civil law systems of European countries such as Italy, Spain, Belgium and France, "magistrate" is a generic term which comprises both prosecutors and judges (distinguished as 'standing' versus 'sitting' magistrature). It should be noted that the legal systems of these countries are not identical, and thus show some relevant differences in the judiciary organization.

As for Italy, the role of prosecutors and the role of judges is radically different; they have different powers and different responsibilities. It is true that a prosecutor can become a judge and vice versa; but this can only happen in different stages of one's career, and never in the same trial. Anti-corruption magistrates (they actually were, or are, public prosecutors) in Italy have in recent years played a key role in fighting criminal organizations such as the Mafia. Antonio di Pietro, Paolo Borsellino and Gherardo Colombo are among the most famous, as was Giovanni Falcone, who was murdered in 1992 by a Mafia bomb in Palermo. The bomb also killed his wife and three bodyguards, and galvanized Italian public opinion against the Mafia.

In Finland, a magistrate is a state-appointed local administrative officer whose responsibilities include population information, public registers, acting as a public notary and conducting civil marriages and same-sex unions.

[edit] Mexico

In Mexico a Magistrado, or magistrate, is a superior judge just below the Supreme Court Justices (Ministros de la Corte Suprema in Mexico) in the Federal Law System and the highest ranking judge of any State. They review the cases seen by a judge in a second term if any of the parties does not agree with the verdict. In some special cases, there are Superior Magistrates, that review the verdicts of other magistrates in special Courts or Tribunals.

[edit] English common law tradition

[edit] United Kingdom

In the courts of England and Wales, magistrates - also known as Justices of the Peace - hear prosecutions for and dispose of 'summary offences', by making orders in regard to and placing additional requirements on offenders. Magistrates' sentencing powers extend to shorter periods of custody (maximum of six months, or twelve months for consecutive sentences)[2], fines (maximum £5,000), community orders which can include curfews, electronic tagging, requirements to perform unpaid work up to 300 hours or supervision up to 3 years and or a miscellany of other options. Magistrates hear committal proceedings for certain offences, and establish whether sufficient evidence exists to pass the case to a higher court for trial and sentencing. In more serious cases, Magistrates have power to pass summary offenders to higher courts for sentencing when, in the opinion of the magistrate, a penalty greater than can be given in magistrates' court is warranted. A wide range of other legal matters are within the remit of magistrates. In the past, magistrates have been responsible for granting licences to sell alcohol, for instance, but this function is now exercised by local councils though there is a right of appeal to the magistrates' court. Magistrates are also responsible for granting search warrants to the police, therefore it used to be a requirement that they live within a 15-mile (24 km) radius of the area they preside over (the commission area) in case they are needed to sign a warrant out of hours. However, commission areas were replaced with Local Justice Areas by the Courts Act 2003, meaning magistrates no longer need to live within 15 miles (24 km), although, in practice, many still do. (However see section 9 of the Official Secrets Act 1911.)

There are two types of magistrate in England and Wales: lay magistrates and legal professionals permanently employed by the Ministry of Justice (United Kingdom) (until May 2007, the Department for Constitutional Affairs). The first group of about 30,000 people, known as lay Justices of the Peace, sit voluntarily. Half of them are women.

No formal qualifications are required but magistrates need intelligence, common sense, integrity and the capacity to act fairly. Membership is widely spread throughout the area covered and drawn from all walks of life. Police officers, traffic wardens and members of the armed forces, as well as their close relatives will not be appointed, nor will those convicted of certain criminal offences including recent minor offences. All magistrates receive six days training, which covers basic law and procedure, before sitting, and continue to receive training throughout their service, which is mostly made up of annual 'refresher courses.' Additional training is given to magistrates in the Youth Court, or those dealing with family matters. New magistrates sit with, and are encouraged to learn from more experienced magistrates.

Magistrates are unpaid volunteers but they may receive allowances to cover travelling expenses and subsistence. They are appointed to their local bench, (a colloquial and legal term for the local court), and are provided with advice, especially on sentencing, by a legally qualified Clerk to the Justices. They will normally sit as a panel of three. Most are members of the Magistrates' Association, which provides advice, training and sentencing guidelines and represents the 30,000 lay magistrates to the Government.

The second group, professional magistrates, are nowadays known as District Judges (Magistrates' Court), although hitherto they were known as Stipendiary Magistrates (which is to say, magistrates who received a stipend or payment). Unlike lay magistrates, District Judges (Magistrates' Court) sit alone and have the authority to sit in any magistrates' court.

In Scotland, the lowest level of law-court, the District Court, is presided over by a Justice of the Peace. The District Courts were replaced with Justice of the Peace Courts beginning in Lothian and Borders Sheriffdom in December 2007.

[edit] Australia

[edit] Federal Magistrate

A Federal Magistrate occupies an office created in 1999. The Federal Magistrates' Court of Australia deals with more minor Commonwealth law matters which had previously been heard by the Federal Court (administrative law, bankruptcy, consumer protection, trade practices, human rights and copyright) or the Family Court (divorce, residence (or custody) and contact (or access) of the children, property division upon divorce, maintenance and child support). The court's name is misleading, in that it exercises a jurisdiction well in excess of that of the state magistrates' courts, and similar to that of the District and County courts of the Australian states.

The Federal and Family Courts continue, but the Federal Magistrates hear shorter or less complex matters or matters in which the monetary sum in disputes does not exceed given amounts. For instance property divisions where the total assets are AUD $700,000 or less and consumer law matters (trade practices) where the amount claimed is less than $750,000. However, in some areas, such as bankruptcy and copyright, the court has unlimited jurisdiction.

The Federal Magistrates’ Court has assumed a significant part of the work load of the two superior courts. By 2004/05 the court was dealing with 73% of the total number of applications made in the three courts (see the Annual Report of the Federal Magistrates' Court 2004/2005).

[edit] State Magistrate

The State Magistrates in Australia derive from the English Magistrates. All Magistrates are salaried officers, and must be legally qualified and experienced to be eligible to be appointed.

The jurisdiction of the Magistrates varies from State to State. They preside over courts which are, depending on the State, called Magistrates’ Courts, Local Courts or Courts of Petty Sessions.

Magistrates hear bail applications, motor licensing applications, applications for orders restraining a given individual from approaching a specific person (“intervention orders” or “apprehended violence orders”), summary criminal matters, the least serious indictable criminal matters, and civil matters where the disputed amount does not exceed AUD $40,000 to AUD $100,000 (depending on the State).

In some states such as Queensland and NSW, the Magistrate may appear robed, although some Magistrates are known to prefer a business suit. Magistrates presiding in the Murri Court (which deals with Aboriginal defendants) were originally of a mind not to appear robed; however elders within the Indigenous community urged Magistrates to continue wearing robes to mark the solemnity of the court process to defendants. Robing is being considered for Magistrates in other states; however, neither Counsel nor solicitors appear robed in any Australian Magistrates' court. Robing in summary courts is unlikely to extend to the legal profession.

Historically Magistrates in Australia have been referred to as “Your Worship”. (From Old English weorthscipe, meaning being worthy of respect.) However, members of the magistracy are now addressed as "Your Honour" in all states. This was partly to recognise the increasing role magistrates play in the administration of justice, but also to recognise the archaic nature of "Your Worship" and the tendency for witnesses and defendants to incorrectly use "Your Honour" in any event. It is also acceptable to address a magistrate simply as Sir or Madam.

[edit] India

There are four categories of magistrates in India. This classification is given in the Criminal Procedure Code, 1973. It stipulates that in each sessions district, there shall be

  • A Chief Judicial Magistrate
  • Judicial Magistrates First Class;
  • Judicial Magistrates Second Class; and
  • Executive Magistrates

"Chief Judicial Magistrate" includes Additional Chief Judicial magistrates also. There is a Sub Divisional Judicial magistrate in every Sub Division (SDJM) although he is technically only a Judicial Mgistrate First Class (JMFC). Judicial Magistrates can try criminal cases. A judicial magistrate first class can sentence a person to jail for up to three years and impose a fine of up to Rs 5,000. A judicial magistrate second class can sentence a person to jail for up to one year and impose a fine of up to Rs 3,000.

An Executive Magistrate is an officer of the Executive branch (as opposed to the Judicial branch) who is invested with specific powers under both the CrPC and the Indian Penal Code (IPC). These powers are conferred in the main by the following sections of the CrPC: sections 107-110 and the relevant provisions; sec 133 and sec 144 and the relevant provisions, sec 145& 147 and the relevant provisions. These officers cannot try any accused nor pass verdicts. A person arrested on the orders of a court located outside the local jurisdiction should be produced before an Executive Magistrate who can also set the bail amount for the arrested individual to avoid police custody, depending on the terms of the warrant. The Executive Magistrate also can pass orders restraining persons from committing a particular act or preventing persons from entering an area (Sec 144 CrPC). There is no specific provision to order a "curfew" The Executive Magistrates alone are authorized to use force against people. In plain language, they alone can disperse an "unlawful assembly"; technically, the police is to assist the Executive Magistrate. They can direct the police about the manner of force (baton charge/ tear gas/blank fire/ firing) and also how much force should be used. They can also take the assistance of the Armed Forces to quell a riot.

There are, in each Revenue District (as opposed to a Sessions District) the following kinds of Executive Magistrates:

  • one District Magistrate (DM)
  • one or more Additional District Magistrates (ADM)
  • one or more Subdivisional District Magistrates (SDM)and
  • Executive Magistrates

All the Executive Magistrates of the district, except the ADM, are under the control of the DM; for magisterial duties, the ADM reports directly to the government and not to the DM.

These magistracies are normally conferred on the officers of the Revenue Department, although an officer can be appointed exclusively as an Executive Magistrate. Normally, the Collector of the district is appointed as the DM. Similarly, the Sub-Collectors are appointed as the SDMs. Tahsildars and Deputy/Additional Tahsildars are appointed as Executive Magistrates.

Under the old CrPC, there was no distinction between the Executive and Judicial Magistrates; some states still follow the old CrPC, eg. Nagaland; there, the Collector is also the head of the judicial branch of the district and can pass sentences, including capital punishment, under IPC.

[edit] New Zealand

The position of stipendary magistrate in New Zealand was renamed in 1980 to that of district court judge. The position was often known simply as magistrate, or the postnominal initials SM after a magistrate's name in newspapers' court reports.

In the late 1990s, a position of community magistrate was created for district courts on a trial basis; two community magistrates were initially required to sit to consider a case. Some of these community magistrates are still serving.

[edit] United States

 This article or section is missing citations or needs footnotes.
Using inline citations helps guard against copyright violations and factual inaccuracies. (February 2008)

Magistrates are somewhat less common in the United States than in Europe, but the position does exist in some jurisdictions.

The term "magistrate" is often used (chiefly in judicial opinions) as a generic term for any independent judge who is capable of issuing warrants, reviewing arrests, etc. When used in this way it does not denote a judge with a particular office. Instead, it denotes (somewhat circularly) a judge or judicial officer who is capable of hearing and deciding a particular matter. That capability is defined by statute or by common law. In Virginia, for example, the Constitution of 1971 created the office of magistrate to replace the use in cities and counties of the justice of the peace, which is common in many states for this function.

As noted above, the terms "magistrate" or "chief magistrate" was sometimes used in the early days of the republic to refer to the President of the United States, as in President John Adams's message to the U.S. Senate upon the death of George Washington: "His example is now complete, and it will teach wisdom and virtue to magistrates, citizens, and men, not only in the present age, but in future generations, as long as our history shall be read" (December 19, 1799).

[edit] Federal judicial system

In the United States federal court system, a magistrate judge is an Article I judge authorized by 28 U.S.C. § 631 et seq. Magistrate judges are appointed by the life-term federal district judges of a particular court, serving terms of eight years if full-time, or four years if part-time, and may be reappointed. Magistrate judges conduct a wide range of judicial proceedings to expedite the disposition of the civil and criminal caseloads of the United States District Courts. Congress set forth in the statute powers and responsibilities that could be delegated by district court judges to magistrate judges. To achieve maximum flexibility in meeting the needs of each court, however, it left the actual determination of which duties to assign to magistrate judges to the individual courts.

The authority that a magistrate judge exercises is the jurisdiction of the district court itself, delegated to the magistrate judge by the district judges of the court under governing statutory authority and local rules of court. In criminal proceedings, magistrate judges preside over misdemeanor and petty offense cases, and as to all criminal cases (felony and misdemeanor) may issue search warrants, arrest warrants and summonses, accept criminal complaints, conduct initial appearance proceedings and detention hearings, set bail or other conditions of release or detention, hold preliminary examinations, administer oaths, conduct extradition proceedings, and conduct evidentiary hearings on motions to suppress evidence in felony cases for issuance of reports and recommendations to the district judge. The Supreme Court has also held that federal magistrate judges may accept guilty pleas and supervise the selection of a jury in a felony trial if the parties consent.

In civil proceedings, Magistrate Judges may preside over jury or non-jury trials of civil cases of any kind with the consent of the parties. They manage pretrial discovery of civil cases scheduled to be tried before district judges, and issue rulings on discovery disputes. They may also be assigned to handle habeas corpus cases and social security appeals.

All decisions of a magistrate judge are subject to review and either approval, modification or reversal by a district judge of that court, except in civil cases where the parties consent in advance to allow the magistrate judge to exercise the jurisdiction of the district judge.

The office of United States magistrate judge was established by the Federal Magistrates Act of 1968 (Pub.L. 90-578, 82 Stat. 1107 (1968), codified as amended at 28 U.S.C. § 604, 631-631, and 18 U.S.C. § 3401–3402). Its foundation is the United States commissioner system, established in 1793. Commissoners were previously used in federal courts to try petty offense cases committed on federal property, to issue search warrants and arrest warrants, to determine bail for federal defendants and to conduct other initial proceedings in federal criminal cases. The Federal Magistrates Act of 1968, as amended, was enacted by the Congress to create a new federal judicial officer who would (1) assume all the former duties of the commissioners and (2) conduct a wide range of judicial proceedings to expedite the disposition of the civil and criminal caseloads of the United States district courts.

In 1979, Congress expanded federal magistrates' authority to include all misdemeanors recognized by the federal criminal code. Magistrates' titles changed again in 1990, when they became "magistrate judges", symbolizing the ever-increasing importance of their work. The system has worked relatively well in the last 30 years, and has tended to shift the federal courts' caseload to the desired balance. Some legal observers have criticized the increasing powers of magistrate judges, who are neither appointed by the President nor confirmed by the Senate. On the other hand, the selection of a U. S. Magistrate Judge is a merit-based process which, by statute, requires public notice of a vacancy and the appointment of a merit selection panel which includes both lawyers and at least two non-lawyers. The panel is required to consider the attributes of each candidate, including scholarship, experience, knowledge of the court system, and personal attributes such as intelligence, honesty and morality, maturity, demeanor, temperament, and ability to work with others. Applicants for the post must be personally interviewed and recommended for the position. Magistrate Judges are compensated at a slightly lower scale than their Article III counterparts and do not benefit from the full array of benefits accorded to Article III judges, so increased magistrate judge involvement in judicial matters has a cost-savings effect for the federal courts.

With the caseload of the federal courts increasing steadily, it is likely that magistrate judges will continue to wield considerable authority in the federal court system.

[edit] State judicial systems

In many state judicial systems in the United States, magistrate courts are the successor to Justice of the Peace courts, and frequently have authority to handle the trials of civil cases up to a certain dollar amount at issue, applications for bail, arrest and search warrants, and the adjudication of petty or misdemeanor criminal offenses.

[edit] Magistrates in Ohio

In Ohio, for instance, magistrates are appointed by the judges of many municipal courts, domestic relations and juvenile courts, and some courts of appeals and common pleas courts. In addition, to avoid any conflict of interest, most communities with mayor's courts have magistrates preside over sessions, rather than the mayors themselves. Ohio magistrates do virtually everything judges do. As in the federal courts, however, their actions are subject to review and either approval, modification or reversal by judges of their court. The exception is mayor's court magistrates, whose decisions are reviewed by either the county or municipal court of the county in which the community is located.

Mr. Joseph E. Quatman Jr. is the Magistrate in Van Wert county, Ohio

[edit] County Magistrates in Georgia

In Georgia, on the other hand, each county has a chief magistrate, elected by the voters of the county, who has the authority to hold preliminary hearings in criminal cases, grant bail (except as to very serious felony charges), and preside over a small claims court for cases where the amount in controversy does not exceed $15,000. In some counties the chief magistrate may be authorized to appoint one or more additional magistrates to assist in carrying out the chief magistrate's duties. Magistrates in Georgia are not required to be licensed attorneys, but they often are. Some counties have both attorneys and non-attorneys on the magistrate court bench.

[edit] County Magistrates in South Carolina

In South Carolina, magistrates are appointed to four-year terms by the Governor upon the advice and consent of the Senate. They serve the county in which they are appointed and exercise county wide jurisdiction. They preside over civil and criminal cases, issue restraining orders, search and arrest warrants and conduct bond hearings (except as to a limited number of the most serious offenses such as murder), preliminary hearings, bench and jury trials. They have jurisdiction in civil cases when the amount in controversy does not exceed $7,500 per side (example: Plaintiff sues for $7500 and Defendant counterclaims for $7500), in traffic and criminal cases that typically carry a maximum punishment of 30 days in jail (although some offenses may carry up to 6 months) and Landlord-Tenant cases with no limit on the dollar amount involved. Magistrates are referred to by the litigants and lawyers that appear before them as "Judge" or "Your Honor." The South Carolina Constitution guarantees defendants the right to a trial by jury on all criminal charges. Juries in Magistrate's Courts are composed of six citizens.

[edit] County Magistrates in Pennsylvania

In Pennsylvania, magisterial district judges are elected for six year terms by the people. They serve alone in districts apportioned by the Supreme Court of Pennsylvania and exercise statewide jurisdiction, with limitations. They conduct criminal arraignments and preliminary hearings, issue arrest warrants and search warrants in some cases, hear civil disputes involving $8,000.00 or less except not matters involving title to real estate, issue temporary Protection from Abuse Act orders, decide traffic, game law, and fish and boat code cases, conduct marriages, administer oaths and affirmations, etc. They are state employees and supervise staffs which are county employees.

[edit] County Magistrates in Kentucky

In many counties in Kentucky, Magistrates are elected every 4 years to the County's Fiscal Court. A Fiscal Court is led by an elected County Judge-Executive and is equivalent to a County Commission. A Kentucky County is separated into districts, and the citizens of each district elects a Magistrate to serve on this court. Under Kentucky's first constitution, Fiscal Courts were in charge of all judicial and legislative powers of a county. In the present constitution the Fiscal Court is only designated to carry out legislative powers, while the Judge-Executive carries out the executive powers of the county. In some counties in Kentucky, the magistrates no longer sit on the Fiscal Court, having been replaced by three at-large County Commissioners, along with the County Judge/Executive. In these counties, magistrates are still elected, however their duties are limited to the performance of marriage ceremonies.

[edit] Other traditions

[edit] People's Republic of China

Magistrate, or chief magistrate, is also a common Chinese translation of xianzhang (縣長 "county leader") the political head of a county. The translation dates from imperial China in which the county magistrate was the lowest official in the imperial Chinese bureaucracy and had judicial in addition to administrative functions.

In Mainland China, the county magistrate is technically elected by the local people's congress but in fact is appointed by the Communist Party. Although there have been some elections at the lower township level, these elections (with one exception, which was considered irregular and illegal) have not extended up to the county level. Although not an important official, county magistrates, particular in rural areas, can sometimes have a strong impact on the lives of ordinary people by enforcing central government regulations, or by turning a blind eye to their violation.

[edit] Switzerland

In Switzerland, magistrate is a designation for the persons holding the most senior executive and judicial offices. On the federal level, the members of the Federal Council, the Federal Chancellor and the judges on the Federal Supreme Court are called magistrates.[3] The designation of magistrate is not a title or style. It does not, by itself, confer any particular privileges.

[edit] Taiwan

On Taiwan, the county magistrate elections are heavily and sometimes bitterly contested, and are often a stepping-stone to higher office. County magistrate elections were first open to election in the 1960s and, before the end of martial law in 1991, were the highest elected position of any real power and hence the focus of election campaigns by the Tangwai movement.

[edit] In popular culture

  • British humourist P.G. Wodehouse wrote in one of his Jeeves and Wooster stories, "Jeeves and the Feudal Spirit" (1955), "Well, you know what magistrates are. The lowest form of pond life. When a fellow hasn't the brains and initiative to sell jellied eels, they make him a magistrate." Bertie Wooster often appeared before magistrates when he was arrested for minor offenses.
  • A plump and foolish magistrate is a key character in Amy Tan's children's book (and the related PBS television show) Sagwa, the Chinese Siamese Cat.
  • In the post-colonial novel Waiting for the Barbarians by J.M. Coetzee, the story is told from the narrative perspective of the magistrate of one of the settlements in what is presumed to be Africa.

[edit] Sources and references

(incomplete)

[edit] Footnotes

  1. ^ p4 and p18, Nicholas, Barry, An Introduction to Roman Law (Oxford University Press, 1975) ISBN 0-19-876063-9
  2. ^ [1] Judicial Profiles - Magistrates
  3. ^ See art. 1 of the Bundesgesetz über Besoldung und berufliche Vorsorge der Magistratspersonen, SR/RS 172.121.

[edit] See also