Now will be explained in more detail who a magistrate is and what their duties are in a suit at common law. It will be shown below that in such a suit and court, the magistrate (referred to as a “judge” in a civil-law suit) does not make decisions in a common law suit, but merely acts as an executer of the court’s judgments, whether that court be the Plaintiff who is bringing the suit when the defendant raises no objections to facts, or whether it is a jury who has passed judgment. The power of the magistrate at common law is merely to execute the judgments. In the California Codes, it designates who a magistrate is:
“The following persons are magistrates: ...The judges of the superior courts....” [California Penal Code, Sec. 808.]
As shown earlier, in civil lawsuits, the judges are the courts, for they decide and enforce the law. In common law suits, in California, the judge functions in the capacity of a magistrate.
When looking at the characteristics of a court of record, it is:
"...a judicial, organized tribunal, having attributes and exercising functions independently of the person of the magistrate designated generally to hold it...." (Perry, 21)
and
"...a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it...." (Black, 426)
This means that for suits at common law, which occur in a court of record, the judges of the superior courts are to behave as magistrates and are not behave a tribunal/judge. This is further solidified by Black in his the definition of Magistrate (1103):
A magistrate is a “public civil officer” “clothed with power.” They are “inferior judicial officers,” and by the California codes have various powers, such as “to issue a warrant for an arrest.” Clearly civil law directs them, but by definition they are meant to serve as ministers to serve the tribunals of common law courts – that justice would be delivered.
In a cross reference, let us look at the definition of night magistrate (1195):
Clearly, another name for a magistrate is a constable. Cross referencing this definition’s use of “constable,” it reads (383):
So in American law, a magistrate’s duty is to “execute the process of magistrates’ courts, and of some other tribunals.” At common law, the magistrate’s duty is execution, to execute the judgments of the tribunal, not to be the tribunal. It is also worthy to note that a constable has “the custody of juries,” yet is but executor when ministering to a tribunal, be it one, or a jury of people.
The will of the court is execution of its judgment
Before courts became popular, if you had a dispute with another regarding your own life and possessions, when breaches to your freedom of life, liberty and happiness occurred, by your own common sense knowing what was right and wrong, you pulled out your fist, your sword, or your gun and being the sovereign of your own life, enforced the law. It was quoted earlier in this treaties, that “in the beginning of organized society men were much more prone to redress direct injuries to person or property with the sword than by resort to actions at law” (McKelvey, 32). In our history, as a we have evolved as a society, we now have chosen to not use such physical violence, but to use more humane forms of remedy to wrongs, by forming a government by way of a constitution, and so we use government as seen in the 7th Amendment to enforce our judgments. Violence is still practiced in some ways, such as when someone enters your property and you shoot that trespasser. As sovereign of your life and property and maker of the law, you enforce your judgment. One may be familiar with signs which have fallen out of prominent use which say, “Trespassers will be shot on sight” — that saying is a direct signal of the common law in use, but the 7th Amendment ensures that we may also use government to resolve our disputes and enforce our judgments at common law instead of personally resorting to physical violence.
So, like the kings of old, in Curia Regis, when judgments were entered, the ministers of the court signed them also, stood behind them and enforced them for the peace of the kingdom. Before its enforcement, if a defendant did not agree, they always had options before them to counter the suit against them. But the duty of the ministers was to obey the will of the sovereign.
Motion vs. Writs
At common law you do not need to make motions, because a motion is to ask the court for something, with the anticipation that it may or may not be granted. You can make motions, but it’s kind of redundant, because, if you are the Plaintiff in your sovereign court, you are the tribunal, not the magistrate. So its kind of like asking yourself for something.
In civil law, if you file a civil suit, the magistrate then functions as a judge and he/she will expect to see “Motions” for him/her to rule on, instead of necessarily high prerogative writs which are commands from your court for him/her to do things. At common law, the magistrate is not the tribunal.
For clarity, black gives several definitions of “Motion” (1164):
By what is said here, it is “an application” made “to a court or judge” “for a[n] ... order.” It is worthy to note the distinction here between “court” and “judge.”
A writ is a command (1783):
So, a writ is often in a letter form, addressed to a specific person or group, it is in the sovereign’s, a president’s, or a state’s name, it is sealed with a seal and it commands someone to do something for the progression of a suit, or, for some other reason, it can require an act or grant authority for an act to be done. Simply, it is a command from the sovereign authority.
In a common law court, a court of record, as it is the Plaintiff’s sovereign court, and if the defendants cannot counter any of the facts of the case regarding the hinderance of rights, but only to appeal to matters of bad form, then you issue the judgment and the magistrate executes it. And if the magistrate delays in execution, then you simply issue a royal writ to correct the error and have the judgment executed.
In reality, as a magistrate, his specific duty is only ministerial and not tribunal. In the interest of fulfilling justice, his duty is to carry out the will and commands of the tribunal he serves. When Lord Coke uttered “The law will, that in every case where a man is wronged and endammaged, that he shall have remedie,” it left no room for ambiguity, everyone who seeks remedy at common law receives it (Perry, 11).
“The law expands by force of its inherent elasticity” speaks of its unwritten nature – how that elasticity itself gives the law its profound power. And that power is not grounded in stiff codified law, but in history itself. It “is not confined to precedent,” but its foundation is in reason, “reason more extensive than ... this or that case” within the past (11).
And it charges all who serve such authority with the commission to dispense justice and remedy by its command.