choose qualified people for magistrates' positions and use their services imaginatively. Our bill lists several additional functions, by way of suggestion rather than requirement, that might be assigned to magistrates. These include supervision of pretrial discovery proceedings in both civil and criminal cases, preliminary review of petitions for post-conviction relief, and assignments to act as special masters in appropriate civil cases.

The subcommittee's hearings indicated that the proper role of the preliminary hearing is the aspect of the commissioner system about which confusion is greatest and the need for clear statutory standards most pressing. For this reason, we have attempted in our bill to establish uniform, rational practices with regard to preliminary hearings. This provision does not give the magistrate any functions that the commissioner does not now perform, but it clarifies the purpose and scope of the preliminary hearing.

Let me briefly review the present confused and inconsistent status of the preliminary hearing: Rule 5(c) of the Federal Rules of Criminal Procedures requires that a preliminary examination of the evidence to determine whether there is probable cause to believe that a crime has been committed and that the accused has committed it-be held within "a reasonable time" after initial presentment of the accused, unless this right is waived by the accused. In practice, in some districts, this actually occurs, and preliminary hearings are routinely held within a week or so after presentment. In other districts, grand juries are in continuous session and are able to return indictments, mooting the preliminary hearings-in most cases within several days of the presentment. In still other districts, however, preliminary hearings are not held even through the grand jury backlog is such that the delay between presentment and indictment is a month or more. This is done in at least one important district by routinely granting continuances to the prosecution, often ex parte, without any opportunity for the defendant to object. In addition, in many districts the majority of defendants waive preliminary hearing, but they do so before they have an opportunity to consult retained or appointed counsel. Some commissioners have told us that it is virtually impossible to explain to an uncounseled defendant the nature and purpose of the preliminary hearing so that he may make an intelligent choice. We think that this situation is highly unsatisfactory, and that congressional action is needed to clarify the purpose of the rule and establish a uniform procedure throughout the country. We feel that an individual's liberty should not be restrained for more than a minimum period of time in the absence of a judicial determination that his continued restraint is justified. This is particularly true when the individual is in actual custody without bail or for failure to make bail. But it is also true if the individual's liberty is restricted by bail or other conditions of release.

Our bill therefore sets outer limits within which a determination of probable cause must be made either by a magistrate at a preliminary hearing, or by a grand jury through the indictment process. These outer limits are 10 days after presentment for anyone in actual custody, and 20 days after presentment for those released under bail or other conditions. No continuance beyond these limits may be granted without the defendant's consent. Let me emphasize that these are only outer limits, and that the bill reaffirms the requirement that the preliminary hearing be held within a reasonable time. In most cases a reasonable time may be well within the outer limits.

The bill further provides that if at the end of the 10-day or 20-day period there has been neither a preliminary hearing nor a grand jury indictment or information, the accused must be discharged from custody or from bail or any other condition of release. Finally, the bill requires that any waiver of preliminary hearing and any consent to a continuance of the hearing must be made after opportunity to consult counsel.

We anticipate that the effect of the preliminary hearing provision of our bill will be to increase the use of preliminary hearings in those districts in which the grand jury meets infrequently and in those districts in which the grand jury backlog is such that no action can be expected within a short time after arrest and presentment. It will also provide something of an incentive for prompt grand jury action, in that a prosecutor who wishes to avoid a preliminary hearing can do so only by getting his case to the grand jury quickly, knowing that he cannot obtain a continuance of the preliminary hearing beyond the 10- or 20day limit. The ultimate result in our busy urban districts may be the virtual elimination of preliminary hearings, but only if the present grand jury delays are eliminated first.

At our hearings, there was a considerable amount of discussion of the preliminary hearing as a discovery device. Most witnesses concluded, however, that they would prefer that adequate discovery be provided by other means, and that the discovery question be treated separately from that of the preliminary hearing. We agree. The preliminary hearing is not well-suited for discovery for a number of reasons. First, under current doctrines it will always be possible to bypass the preliminary hearing-and therefore discovery-by proceeding rapidly to indictment after arrest, or by arresting the defendant only after an indictment has been returned, in which case the Rule 5 preliminary hearing process is not invoked at all. Second, it is possible to hold a preliminary hearing on only one of several charges, and later to indict and try the defendant on other charges. Third, the amount of discovery that a defendant receives in a preliminary hearing depends on the amount of proof the commissioner requires the Government to bring forward to establish probable cause; this may be quite a bit, or it may be very little, but in either event it need not be all the evidence within the possession of the Government that should be subject to discovery. Moreover, the preliminary hearing should be conducted promptly after arrest, but a discovery proceeding is probably more efficiently conducted at a later stage, closer to trial, after counsel has had an opportunity to reflect at leisure about the defense, and when the evidence against the accused is likely to be more complete.

We believe that discovery in criminal cases should stand on its own feet. It should not be inextricably entwined in the process of establishing probable cause, but should be designed to facilitate an exchange of information making the trial a more rational method of determining the truth. As such, discovery should be available to all defendants, including those whose arrest following indictment takes them out of the Rule 5 preliminary hearing process, and including those who for one reason or another do not get a preliminary hearing.

Therefore, we feel that discovery, apart from the preliminary hearing should be handled in the Federal Rules of Criminal Procedure. A new Rule 16, which liberalizes somewhat criminal discovery procedures, will take effect on July 1. Some people feel that this new rule does not go far enough, particularly in that it does not cover statements of witnesses and does not contemplate the possibility of the taking of depositions. We hope that the Supreme Court and the Judicial Conference and its committees will carefully scrutinize the operation of the new Rule 16 and will give consideration to further liberalization of the criminal discovery procedures in the Federal courts, so that the Congress does not have to act. This is one area in which we have lagged behind a number of our more progressive State court systems.

Senator Scott and I believe that the Federal Magistrates Act, if enacted, can be a great boon to the effective operation of the Federal judicial system. Before introducing this bill, the subcommittee staff circulated a draft to almost one hundred people whose familiarity with the administration of Federal justice makes them eminently qualified to render expert advice. I am happy to report that their reaction to our basic approach was favorable. We will hold hearings on this bill on July 11, 12, and 13, and I hope that, with suitable amendments in the light of comments made at that time, this bill can be reported out of our Subcommittee before the end of the summer.

THE CONSTITUTIONALITY OF TRIAL OF MINOR OFFENSES BY U.S. MAGISTRATES * S. 3475 authorizes United States magistrates and deputy United States magistrates to try and sentence persons accused of minor offenses-misdemeanors punishable under the laws of the United States, the penalty for which does not exceed imprisonment for a period of one year, or a fine of not more than $1,000, or both. The defendant must knowingly and intelligently consent to trial before the magistrate, and if he does not do so the trial must take place before the district court. Appeal from a judgment of conviction entered by the magistrate will lie to the district court. It has been suggested that there are constitutional objections to this provision. This paper is a discussion of the relevant precedents and authorities which tend to show that these objections are not valid.

Article III of the Constitution provides that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts

* Prepared by staff of Subcommittee on Improvements in Judicial Machinery.

as Congress may from time to time ordain and establish." U.S. Const., Art. III, § 1. It further requires that judges of these courts hold office during good behavior. But it does not establish any unwavering rule that the judicial power conferred by the first sentence of the Article shall, at every stage of a proceeding, be exercised by the good-behavior tenure judges created under the second sentence. Thus, S. 3475, which permits a defendant to consent to trial by an officer of an Article I court, with appeal guaranteed to such a court, does not conflict with Article III.

In fact, today Article III judicial power is often exercised in the first instance through court officers who do not have good-behavior tenure. This exercise derives its justification either from the officers status as a court appointee, the consent of the litigants, the availability of appeal to an Article III court, or a combination of these factors. The trial of minor offenses by U.S. magistrates under S. 3475 is, therefore, no departure in principle from established practice. The magistrates status as an officer of an Article III court, trying cases only with the consent of a defendant who may appeal to that court, places his function within familiar constitutional guidelines.

I. EXERCISE OF JUDICIAL POWER THROUGH COURT OFFICERS

Referees in bankruptcy

The most striking example of a court officer exercising Article III judicial power is the referee in bankruptcy. He is a subordinate officer of the court of bankruptcy, appointed by the court for a six-year term. 11 U.S.C. § 62 (a) (Supp. 1965). Yet he can exercise most of the judicial functions of that court. 11 U.S.C. § 66 (1964).

The court of bankruptcy is an Article III tribunal. It is, in fact, the United States District Court in each judicial district. 11 U.S.C. § 1(10) (1964). In exercising its power in bankruptcy matters the district court is assuming a traditional function of equity tribunals. In England bankruptcy jurisdiction has always been vested in judicial tribunals. See 20 Va. L. Rev. 698 (1934). Originally, a special judicial tribunal including the Chancellor, the Chief Justices, members of the Privy Council, the Lord Treasurer and Lord President, adjudicated bankruptcy questions, 34 & 35 Hen. VII c. 4 (1542). Later the Chancellor alone was given authority, through commissioners he could appoint, to hear bankruptcy cases. 13 Eliz. I c. 7 (1571); I James I c. 15 (1603). This background indicates that, once Congress has passed a bankruptcy law under the authority of Article I, Section 8, clause 4, cases arising under that law become "cases, in Law and Equity, arising under * * * the Laws of the United States" to which the judicial power of the United States extends. U.S. Const., Art. III, § 2. As Justice Frankfurter said, "What proceedings are 'cases' and 'controversies' within the 'Judicial Power' is to be determined, at the least, by what proceedings were recognized at the time of the Constitution to be traditionally within the power of the courts in the English and American judicial systems." United Steelworkers of America v. United States, 361 U.S. 39, 60 (1959) (concurring opinion); see Glidden Co. v. Zdanok, 370 U.S. 530, 563, (1962).

The language of the Bankruptcy Act itself confirms the judicial nature of the bankruptcy court's functions. It confers "jurisdiction at law and in equity" to decide cases arising under the act, 11 U.S.C. § 11 (a) (1964), a grant which would seem proper only if made to a court created under Article III. See In re Conciliation Commissioner, 5 F. Supp. 131 (D. Mont. 1933). In addition, since the bankruptcy court is the United States District Court, to call it a legislative tribunal is to say that Congress can disregard the limitations of Article III and confer upon an Article III court powers which are not judicial in nature. As six justices said in National Mutual Ins. Co. v. Tidewater Co., 337 U.S. 582 (1949) (opinion of Rutledge, J., at 607, of Vinson, C.J., at 639–641, and of Frankfurter, J., at 652), with the exception of courts in the District of Columbia, the jurisdiction of constitutional courts must be limited to Article III "cases and controversies." "To find a source for 'the judicial Power * * * which may be exercised by courts established under Article III of the Constitution outside that Article would be to disregard the distribution of powers made by the Constitution." National Mutual Ins. Co. v. Tidewater Co., supra at p. 652 (dissenting opinion of Frankfurter, J.). As Mr. Chief Justice Vinson put it, “[T]he strict dichotomy between legislative and constitutional courts still exists-except in the District of Columbia." National Mutual Ins. Co. v. Tidewater Co., supra at p. 639 (dissenting opinion). Thus the district court, when acting as a court of bankruptcy, must be exercising Article III power.

The summary nature of many bankruptcy proceedings does not make them any less an exercise of Article III power. Some bankruptcy proceedings must be plenary in nature with all the procedural guarantees of a full trial at law or in equity. In re Prima Co., 98 F. 2d 952, 957 (7th Cir. 1938); see McDonald v. Plymouth County Trust Co., 286 U.S. 203 (1932). Those that can be conducted summarily (without formal pleadings, with notice to rather than service upon interested parties, and upon affidavits rather than examination of witnesses) are generally proceedings in rem concerning property actually or constructively in the possession of the court, and this in rem nature of the proceedings permits certain procedural shortcuts. Hanover National Bank v. Moyses, 186 U.S. 181 (1902). The Bankruptcy Act is designed to provide a speedy settlement of the bankrupt's estate, Bailey v. Glover, 88 U.S. (21 Wall.) 342 (1874), and this congressional policy, rather than any constitutional distinction between bankruptcy cases and other cases at law or in equity, justifies the resort to summary procedures. In fact, naturalization proceedings, equally summary in nature, which derive their justification from the same clause of the Constitution, U.S. CONST. Art. I, § 8, cl. 4, have been held to involve an exercise of Article III power. Tutun v. United States, 270 U.S. 568 (1926) (Brandeis, J.).

Despite his non-Article III status, the referee can exercise all of the powers of the bankruptcy court, except those specifically denied him by the Bankruptcy Act, In re Swartz, 130 F. 2d 29 (7th Cir. 1942), such as enjoining another court. 11 U.S.C. § 11(a)(15) (1964), holding a party in contempt, 11 U.S.C. § 69(b) (1964), or appointing receivers, 11 U.S.C. § 517 (1964). Petitioners for voluntary or involuntary bankruptcy are automatically referred to a referee by the clerk of the court, 11 U.S.C. § 45 (1964). But a bankrupt has a right to trial by jury in involuntary bankruptcy cases. 11 U.S.C. § 42 (1964). If he demands a jury trial, the district court must try the case. All other duties of the court, except those denied by law, may be delegated to him by rule or special order, 11 U.S.C. § 66(6) (1964). After a general reference, the referee rules on the petition and grants or denies a discharge in bankruptcy. 11 U.S.C. § 66(4) (1964). His decisions are reviewable by the judge of the bankruptcy court, 11 U.S.C. § 67 (c) (1964), but cannot be disturbed unless clearly erroneous. In re Northern Illinois Development Corp., 324 F.2d 104 (6th Cir.), cert. denied, 376 U.S. 938 (1963); In re Rosenberg, 145 F.2d 896 (2d Cir. 1944). Within 10 days after the referee's order is entered, a party can petition for review of the order by the judge of the bankruptcy court. If no petition is filed within that period, the referee's order becomes final. Bookey v. King, 236 F.2d 871 (9th Cir. 1956); In re San Francisco Bay Exposition, 50 F. Supp. 344 (N.D. Cal. 1943).

The referee is not a separate court; he has no independent judicial authority. He is merely an officer of the court of bankruptcy, having no power except as conferred by the order of reference. ***" Weidhorn v. Levy, 253 U.S. 268, 271 (1920). But the judicial power of the court can be conferred upon him. "The office of referee, created by the act as an arm of the bankruptcy court, is invested with certain judicial powers ***, ‘subject always to a review by the judge,' and his proceedings, after the court acquires jurisdiction, are those of the court." Gilbertson v. United States, 168 Fed. 672, 674 (7th Cir. 1909). (Emphasis added.) In summary, Article III judicial power can be conferred in bankruptcy cases on court officers who do not hold office during good behavior. Special masters

The practice of referring controversies to a special master is another instance in which the judicial power of the United States is exercised through officers of an Article III court who do not have good-behavior tenure. Since the district court has jurisdiction over a case only if the case falls within one of the Article III heads of jurisdiction, it follows that the same controversy, when referred by the court to a special master, must also involve the exercise of Article III power. For random examples of proceedings before special masters which have involved cases or controversies under Article III, see, e.g., Arizona v. California, 373 U.S. 546 (1963) (original jurisdiction of the Supreme Court); Burgess v. Williams, 302 F. 2d 91 (4th Cir. 1962); Rodgers v. Societe Internationale, 278 F. 2d 268 (D.C. Cir. 1960).

The report of the master is considered only an advisory opinion which the court may accept or disregard in whole or in part, according to its own judgment as to the weight of the evidence. But in practice it is not usual for the court to reject the master's report unless the findings are unsupported or defective in some essential particular. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946); Leader Clothing Co. v. Fidelity & Cas. Co., 237 F. 2d 7 (10th Cir. 1956).

The weight given to these findings coupled with the fact that a master's duties are normally performed by a judge suggests that the judicial power of the court is being exercised to some extent through a person other than an Article III judge. Rule 53(b) of the Federal Rules of Civil Procedure does state that a reference to a master shall be the exception and not the rule, and the Supreme Court has narrowly defined the conditions that justify a reference. See LaBuy v. Howes Leather Co., 352 U.S. 249 (1957). But the requirements of Article III have never been used to justify restricting the use of special masters. The courts have decided they should not, rather than cannot, routinely divest themselves of their duty to make the initial determination of the controversy. What can be considered an exceptional condition which, under the LaBuy rule, permits a reference is unclear. But pragmatic considerations rather than exceptions to Article III requirements have been relied upon when the courts have approved a reference. See, e.g., Rodgers v. Societe Internationale, supra. Consequently there is little doubt that where a case is initially referred to a special master, the result is an exercise of the judicial power of the United States through a court officer who is not possessed of good-behavior tenure.

U.S. Commissioners

Certain functions presently performed by United States Commissioners are additional examples of the exercise of judicial power through an officer of an Article III court. Commissioners are authorized to conduct preliminary hearings to determine whether there is probable cause to believe that an offense against the laws of the United States has been committed and that the defendant has committed it. Rule 5(c). Fed. R. Crim. P. They are also authorized to admit a defendant to bail. Rule 5 (b), Fed. R. Crim. P.

Commencement of these proceedings before the Commissioner gives jurisdiction over the case to the district court which appointed the Commissioner, and he conducts the hearings as an officer of that court. Go-Bart Importing Co. v. United States, 282 U.S. 344, 354 (1931). Although, as a matter of statutory construction, proceedings before the Commissioner has not been characterized as proceedings before a court of the United States, Todd v. United States, 158 U.S. 278 (1895), the findings made by the Commissioner are difficult to assess as anything other than an exercise of the judicial power of the United States. See Grin v. Shine, 187 U.S. 181, 187 (1902). In fact, as the Supreme Court has recently pointed out, bail proceedings and preliminary hearings are an integral part of the criminal process which culminates in a determination of guilt or innocence. DiBella v. United States, 369 U.S. 121 (1962). They are so closely associated with the functions of the court that misconduct of a party to such proceedings is considered contempt of the district court itself. Although the Commissioner cannot himself punish an individual for contempt, Ex Parte Perkins, 29 Fed. 900 (C.C. D. Ind. 1887), the district court can punish as contempt of the court misbehavior before a Commissioner. United States v. Tom Wah, 160 Fed. 207 (N.D.N.Y.), affirmed, 163 Fed. 1008 (2d Cir. 1908). This illustrates the proposition that the Commissioner is in such cases exercising the jurisdiction of the district court itself and, consequently, is also exercising the judicial power of the United States.

Further proof of this is found in the fact that the ruling of the Commissioner in bail proceedings and preliminary hearings can result in the imprisonment of the defendant. Accordingly, the courts have concluded that a decision by a United States Commissioner on a motion for bail is a judicial determination. United States v. Jones, 134 U.S. 483 (1890); Danaher v. United States, 39 F. 2d 325 (8th Cir. 1930). Determining the existence of probable cause has also been considered as an exercise of discretion which is judicial in its nature. United States ex rel. Finch v. Elliott, 5, F. 2d 292 (9th Cir. 1928); see Todd v. United States, supra. Moreover, many of the Commissioner's functions are frequently performed by Article III judges. Since these judges are constitutionally prohibited from performing non-judicial functions, except in the District of Columbia, see National Mutual Ins. Co. v. Tidewater Co., supra, their performance of these functions must involve the exercise of the judicial power of the United States. It seems unreasonable to contend that the discharge of these functions through the medium of the United States Commissioner is any less an exercise of the judicial power of the United States.

Commissioner's petty offense jurisdiction

Trial of petty offenses by United States Commissioners is an additional example of the exercise of judicial power through officers other than Article III judges. The Commissioners presently have the power to try petty offenses com