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About British Magistrates

Posted on:2009-10-23Degree:DoctorType:Dissertation
Country:ChinaCandidate:X Y LiuFull Text:PDF
GTID:1116360242987885Subject:Legal history
Abstract/Summary:PDF Full Text Request
Magistrate, also known as Justice of the Peace, is an official position with long history. The predecessor of magistrate appeared as early in the 12th century as Keeper of the Peace in charge of keeping the peace of the local place, and it was called as Justice of the Peace in 1361 due to the promulgation of Justices of the Peace Act. This Act prescribes that the peace of each shire shall be kept by a lord and three or four men with knowledge of law. Justices of the Peace have the power to arrest, detain, seize and punish the suspected offenders based on laws, customs, and even their own discretion. They can also seize those notorious persons with insufficient surety or those on the timely need to be punished. Furthermore, they can also notify and inquire those used to be outlaws overseas and wandering in the shire now and will not work. The promulgation of the Act not only defined the judicial duties of Keeper of the Peace, and the name therein was replaced to be as Justice of the Peace as well. Thus, the year of 1361 became a milestone in the history of evolution of magistrate.The jurisdiction scope of magistrates enlarged in the following centuries. They had broad judicial and administrative powers by the 17th century, with exceptions during the English Civil War and Republic period. Their administrative power includes issuance of licenses to beer houses, appointment of poverty relief supervisors and road inspectors, levying local revenue, and conducting important business transaction in the territory of shire. Their judicial power includes presiding the trial of minor cases and the trial of cases in Quarter Sessions by two to nine magistrates. Only those indictable felonies could be excluded outside the jurisdiction of the magistrate and be tried by the assize judge; nevertheless, magistrates still have the power of preliminary hearing. However, the power of magistrates was weakened in the end of 19th century and the beginning of 20th century, and the most administrative functions of magistrate were transferred to local government elected by the people, with the only administrative power of issuance of beverage licence left. Nevertheless, their judicial function was not weakened, and on the contrary, their judicial power was more defined and became more authoritative, the role of being judges thus got accentuated. Magistrates played an important role in the implementation of the criminal laws. They conducted summary trials in magistrates'court (called Petty Session before1972); They brought suits against people below the age of 18 in the court of juvenile court; They hear the transfer process as the review judge; They played a secondary role in royal court; They could issue a writ to arrest a person who committed a crime, or issue a subpena to the suspected offenders to appear at the magistrate court to answer the alleged crime. In addition, magistrates also enjoy a jurisdiction right over a large scope of civil matters. For example, they may issue maintenance order to the parties of the marriage, and issue the"guardianship order"in the interests of children. They may establish the"affiliation order"in the process of affiliation procedure. They also may protect those children who were neglected or maltreated. They also have the administrative power to issue the licence to sell the liquor, or to permit the registered gamblers to go in with gambling in a particular premise.All in all, judicial work in England and Wales depend on magistrates to a large extent. This profession has been in existence for several centuries though the magistrates have no salary as rewards, and it survived the many challenges and finally became a foundation stone of modern British criminal trial system.The writer thinks that the way of settling disputes employed by the British Magistrates is very unique; although these people have neither law diplomas nor rich law-practicing experiences, they could keep the local order effectively in their spare time. They have no salaries and thus are not the royal officals, however, they act as bridges between the central government and the local places. They are the executors of the central government policies in local places, meanwhile, they also represent the interests of the local places. They settle disputes, establish or restore a stale and harmonious social relationship, thus to influence the rule of behavior of the parties concerned and other people in the future. Magistrates from 17th to 19th Century played various degree of role, and in one time they played enormously big role, and in another time it went to down. It is noteworthy that after the magistrates went through the local governmental reform and judicial reform, they didn't decline immediately, lost their administrative power though. However, their judicial function was further fixed, standardized, and established, and they were brought to the uniform judicial system since then. The judicial position of the magistrates was greatly elevated and laid a foundation to the English judicial system ever since.This paper, based on the perspective of legal history, using multi-disciplinary knowledge, explores the history development of British magistrates mainly from the 17th to the 19th century. The paper attempts to reveal the value of the magistrates as the grassroot judicial officers and find out the traditional dispute settlement mechanism in that period England, so as to make us know better what are the essences of modern English judicial system. Furthermore, the author also hopes to provide a reference or mirror to the Judicial reform and the Construction of rule of law in China via this research. Therefore, this is undoubtedly a topic with great significance both in theory and in practice as well. The paper consists of six chapters besides the Introduction part. The main contents are as follows:Chapter one, the origin and development of British magistrates. As the introduction part of the whole dissertation, this chapter firstly analyzes the political and historical roots of magistrate and its necessity, and also introduces the origin and development of Justice of Peace, the reasons and marks of its turning into magistrate. All these introductions enable a clear picture of British magistrate. Then the dissertation goes to the development of British magistrate in the period of Tudor. The council of Tudor continuously made the laws, strengthened and explained the judicial function of magistrates. The scope of the power of magistrates thus extended to local governmental affairs and various aspects of life, that is, the scope became far beyond the limit of the judicial power. Magistrates nearly replaced the top administrative officer and became the most important speaker of the king, and they were even nicknamed as"charwoman of Tudor Dynasty".Chapter two, ups and downs of British magistrates (1603-1688). The years from 1603 to 1688 are of a changing period for magistrates ever since they were coming into being. Due to the great leap once achieved by magistrates in Tudor Dynasty, magistrate system ran well except in the English Civil War and the Protectorate Cromwell periods. This chapter analyzes how magistrate system was implemented before or during the course of the English Civil War. This chapter also talks about the features of magistrates under the despotism system. It reveals us a rather clear picture of the evolution of magistrates, from their functions being limited by the despotism government before the War, the turmoil of the War, the re-establishment of the role of magistrates in Restoration period, till the future prosperity of magistrates after Glorious Revolution.Chapter three, the prosperity of British magistrates (1688-1832). Glorious Revolution successfully overthrew the English feudalism, and created constitutional monarchy in England. But the magistrates as a very old profession didn't disappear with the fall of feudalism; to the opposite, Glorious Revolution rendered a vital condition to the very prosperity of magistrates, who built an oligarchy in local places. This paper mainly discusses the reasons features of the oligarchy, and it also discusses the authority, candidates, and the conditions of the courts in the prosperity period. Comparing to the authority of the magistrates of different periods, the most remarkable difference is that magistrates of this period not only have the traditional judicial and administrative powers, they also embrace the lawmaking power. Meanwhile, with the development of society and economy, especially with the changes brought by Industrial Revolution, magistrates couldn't match the need of the situation at that period even though they were right in a prosper period. Stipendiary Magistrates came into being at this time. Chapter four, the further evolution of British magistrates (1832-1888). With the ending of the Industrial Revolution, the social and economic structures of England changed greatly, and the most conspicuous are the three Parliamentary Reforms and the local governmental reforms. The Parliamentary Reforms enlarged the right to vote, which brought new vigor to magistrates. Local governmental reforms freed the magistrates from the heavy administrative work, so that they could devote themselves to the judicial work. All these marked a new era for the magistrates. This chapter discusses how the administrative power of the magistrates in prison, mental hospital, subway, bridges, etc. became impaired. On the hand, their jurisdiction in handling the juvenile delinquency cases and family affairs cases are further enlarged. The appearance of the Petty Session enlarged the scope of the magistrates'jurisdiction over minor offences, which laid a foundation for the modern British Magistrates'judicial power.Chapter five, the final formation stage of British magistrates (after 1888). During the previous stage, the administrative function of the magistrates has already shrunk greatly, and the administrative power was accordingly largely decreased. After the local governmental reform in 1888, the local council took over the administrative function of the magistrates. In this chapter, what caused the loss of their administrative power is firstly discussed. The magistrates'new role in the criminal justice and civil justice is followed in the text. The author also mentions the appointment and the obligations of the magistrates. Magistrates thus took on a new image, and after the development of several centuries, modern magistrates finally came into being.Chapter six, rational reflections on magistrates. Based on the analyses of the previous five chapters, this chapter talks about the survival law, the value, and defects of the magistrates ever since Middle Ages. The author also mentions the application of such a role in China,Through these six chapters, a panorama of the evolution of the Magistrates is presented before the readers. Ups and downs of the magistrates tell us how magistrate system operated well under various contexts. The author also attempts to put forward some daring and constructive ideas on its application in China so as to make certain beneficial suggestions to the judicial reform today.
Keywords/Search Tags:England, Magistrate, From 17th to 19th Century, Evolution
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