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A judge judge?

Not long ago, The Legal Genealogist wrote about the issue of privacy on Facebook and happened to mention that, after a Facebook friend of a man had given federal agents access to his friend’s Facebook postings, a federal Magistrate Judge had given the agents a warrant to search all of the defendant’s Facebook information.1

That prompted reader Larry Head to stop and wonder about the use of the term. “I wondered if you could explain the term ‘federal Magistrate Judge,’” he asked. “Until I read it in your post, I had assumed this was simply a redundancy rooted in the hubris of some long-forgotten military officer or bureaucrat…. When isn’t magistrate just another word for judge?”

Larry’s absolutely right that the word magistrate is generally understood to mean a judge. “The term is commonly used in … designating, in England, a person intrusted with the commission of the peace, and, in America, one of the class of inferior judicial officers, such as justices of the peace and police justices.”2

But, as with so much else in the law, it ain’t necessarily so. The term itself has a broader meaning: “A public officer belonging to the civil organization of the state, and invested with powers and functions which may be either judicial, legislative, or executive.”3 And at least one Missouri case expressly held that “The word ‘magistrate’ does not necessarily imply an officer exercising any judicial functions, and might very well be held to embrace notaries and commissioners of deeds.”4

So what is a federal Magistrate Judge anyway?

Today, he or she is one of three federal judicial officers serving the United States District Courts. The highest ranking federal judge in the District Courts is the United States District Judge, appointed by the President with the advice and consent of the United States Senate, with all the power and privilege of Article III of the Constitution:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.5

There are the United States Bankruptcy Judges, appointed by the judges of the U.S. Circuit Courts of Appeals for all the districts within their circuit, who serve for 14-year terms.6 Since their terms are limited, by definition they’re not Article III judges but rather adjuncts to the District Courts.

And there are the United States Magistrate Judges, appointed by the judges of each U.S. District Court, who serve for eight-year terms.7 Like their colleagues in bankruptcy, these are not Article III judges but also adjuncts to and an integral part of the District Courts. They exercise all the authority — but only the authority — given to them by the District Judges.

And today they have vastly more authority than when the position began.

The history of the federal Magistrate Judge begins in 1793, with the adoption of the Judiciary Act of 1793. That statute allowed the circuit courts and the district courts of Maine and Kentucky to appoint “discreet persons learned in the law” to take bail in federal criminal cases.8

That authority was expanded in 1812 to allow the circuit courts to appoint “such and so many discreet persons, in different parts of the district, as the court shall deem necessary, to take acknowledgments of bail and affidavits.”9

It wasn’t until 1817 that the folks so appointed were first called Commissioners by the law. In a statute passed that year, the term was used and the commissioners’ authority was expanded again to include the taking of depositions for later use at a civil trial.10

Over the years, more and more authority was given to commissioners, to act particularly in the enforcement of specific laws, such as:

     • the Fugitive Slave Act of 1850;11

     • the Civil Rights Act of 1866;12 and

     • the Chinese Exclusion Act of 1888.13

In 1896, Congress abolished the old commissioner system and created a new official position of United States Commissioner, with the appointments to the post made by the district courts, not the circuit courts.14 Fees to be charged by these Commissioners for the work done were set by law.15

So these officers were known as United States Commissioners, and you’ll see them referenced that way, in most of the older judicial records right up until 1968.

That’s when Congress completed overhauled the system:

In the mid-1960s members of the congressional judiciary committees and judges on the Judicial Conference of the United States recognized the need for revisions to the commissioner system. Commissioners were still paid by a fee system, the appointment process varied from court to court, and there were no uniform criteria for selection. Members of Congress and federal judges also wanted to relieve the congestion of the federal court dockets by expanding the judicial responsibilities of the commissioners.16

The result was the passage of the Federal Magistrates Act of 1968, changing the name and greatly expanding the role of these federal officers.17 Other statutes have added to the magistrates’ duties, and the Judicial Improvements Act of 1990 changed their official title to United States Magistrate Judge.18

So not all magistrates are judges, but all Magistrate Judges are federal judicial officers working as part of and for the United States District Courts. And if you’re looking for records before 1968, look for them as United States Commissioners.


Image: Melwe, OpenClipArt Library

  1. Judy G. Russell, “Facebook privacy and the law,” The Legal Genealogist, posted 13 Mar 2013 ( : accessed 21 Mar 2013).
  2. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 739-740, “Magistrate.”
  3. Ibid.
  4. Schultz v. Merchants’ Ins. Co., 57 Mo. 331, 336 (1874).
  5. Article III, § 1, United States Constitution.
  6. 28 U.S.C. § 152.
  7. 28 U.S.C. § 636.
  8. § 4, 1 Stat. 333 (2 Mar 1793).
  9. 2 Stat. 679, § 1 (20 Feb 1812).
  10. 3 Stat. 350 (1 Mar 1817), incorporating 1 Stat. 73, § 30 (24 Sep 1789).
  11. 9 Stat. 462 (1850).
  12. 14 Stat. 27 (1866).
  13. 25 Stat. 504 (1888).
  14. § 19, 29 Stat. 140, 184 (1896).
  15. Ibid., § 21.
  16. Federal Judicial Center, “History of the Federal Judiciary: Magistrate Judgeships” ( : accessed 21 Mar 2013).
  17. 82 Stat. 1107 (1968), codified at 28 U.S.C. § 636.
  18. 104 Stat. 5089 (1990).
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