Supreme Court has also traced the origins of modern habeas corpus law to chapter 39 of the Magna Carta Murray v.. 2d 836 1991, the Supreme Court also pointed to the Magna Carta as an ear
Trang 1It is not surprising, then, that the barons renounced loyalty to the king, plotted his ass-assination, and ultimately compelled his capitula-tion to the Magna Carta
The grievances King John promised to redress in the Magna Carta represent both the substance of the Great Charter’s original meaning and its later symbolic import The document’s immediate purpose was to appease the baronial leadership In this vein, it provided that justice would not be sold, denied, or delayed (ch 40), and ensured that certain rights and procedures would be “granted freely”
without risk of “life or limb” (ch 36) It guaranteed the safe return of hostages, lands, castles, and family members that had been held
as security by the Crown for military service and loan agreements The Magna Carta mandated the investigation and ABOLITION of any “ill customs” established by King John (ch 48), and required that no “justices, constables, sheriffs, or bailiffs” be appointed unless they
“know the law of the land, and are willing to keep it” (ch 45)
The phrase“law of the land” is interspersed throughout the Magna Carta, and is emblematic
of other abstract legal concepts contained in the Great Charter that outlasted the exigencies of
1215 Nowhere in the Great Charter is“law of the land” defined, but a number of sections offer an early glimpse of certain constitutional liberties in embryonic form
For example, the American colonies equated
“law of the land” with “due process of law,” a legal principle that has been the cornerstone of procedural fairness in U.S civil and criminal trials since the late 1700s The DUE PROCESS CLAUSEof the Fifth and Fourteenth Amendments has been relied on by the U.S Supreme Court as
a source for substantive rights as well, including the right to privacy
Chapter 39 of the Magna Carta linked the law-of-the-land principle with another important protection It provided, “No free man shall be seized, or imprisoned, or disseised, or outlawed,
or exiled or injured in any way, nor will we enter
on him or send against him except by the lawful judgment of his peers, or by the law of the land.”
In 1215, a person obtained “lawful judgment
of his peers” through a communal inquest in which 12 knights or landowners familiar with the subject matter of the dispute took an oath, and swore to testify truthfully based on their own
knowledge or on knowledge gained from an
EYEWITNESSor other credible source
This primitive form of fact-finding replaced even cruder methods—such as trial by battle, where the disputants fought savagely until one party begged for mercy or died, and the victorious party was presumed to have God and Right on his side The process of one’s peers in the community rendering judgment also pre-saged the modern trial by jury recognized by the
SEVENTH AMENDMENT to the U.S Constitution, which similarly entitles a defendant to be tried
by a body of jurors that is a “truly representa-tive” cross section of the community (Glasser v United States, 315 U.S 60, 62 S Ct 457, 86
L Ed 680 [1942])
The U.S Supreme Court has also traced the origins of modern habeas corpus law to chapter
39 of the Magna Carta (Murray v Carrier, 477 U.S 478, 106 S Ct 2639, 91 L Ed 2d 397 [1986]) Habeas corpus is a procedure that authorizes a court to determine the legality under which a person is jailed, imprisoned, or otherwise detained by the government If the court finds that the person was deprived of liberty through“due process of law,” continued detention is permissible until trial, where guilt and innocence are placed in issue Similarly, the Magna Carta validated the continued imprison-ment of persons who had been originally incarcerated by the“law of the land.”
In Harmelin v Michigan, 501 U.S 957, 111 S
Ct 2680, 115 L Ed 2d 836 (1991), the Supreme Court also pointed to the Magna Carta as an early source of its EIGHTH AMENDMENTproportionality analysis Chapter 20 of the Great Charter prohibited the monarch from imposing a fine
“unless according to the measure of the offense.”
It further provided that“for a great offense [a free man] shall be [punished] according to the greatness of the offense.” Under the Eighth Amendment to the Constitution, the Supreme Court has echoed this principle by prohibiting state and federal governments from imposing fines and other forms of punishment that are disproportionate to the seriousness of the offense for which the defendant was convicted
The contemporary significance of the Magna Carta is not confined to the areas of civil and
CRIMINAL PROCEDURE The Great Charter prohib-ited the government from assessing any military tax such as scutage “except by the common counsel of [the] realm” (ch 12) The common
428 MAGNA CARTA
Trang 2counsel comprised persons from various classes
of English society, including bishops, abbots,
earls, and barons The common counsel was a
forerunner to Parliament and Congress as a
representative body limiting the power of the
government to pass legislation, particularly tax
legislation, without popular consent
The common counsel also proclaimed what
would become a battle cry of the American
colonists: No Taxation without Representation
Indeed, some colonists decried theSTAMP ACT, a
statute passed by Parliament that taxed
every-thing from newspapers to playing cards, as an
illegal attempt to raise revenue in violation of
the Magna Carta Other colonists cited “the
assembly of barons at Runnymede, when
Magna Carta was signed” as precedent for the
Continental Congress (Bailyn 1992, 173 n 13)
The achievement of the Magna Carta, then,
is found not only in the original meaning
understood by Englanders of the thirteenth
century, but also in the subsequent application
of the document’s principles The Magna Carta
began as a peace treaty between the baronial
class and the king, but later symbolized a
written contract between the governed and the
government, a contract that included the right
of rebellion when the government grew despotic
or ruled without popular consent
The Magna Carta also came to represent the
notion of government bound by the law,
sometimes referred to as the rule of law The
distinction between government according to
law and government according to the will of the
sovereign has been drawn by legal and political
philosophers for thousands of years This
distinction was also made during the reign of
King John For example, Peter Fitz Herbert, an
important landowner, complained that his
father had been“disseised” of land “by the will
of the king” despite evidence that the land
belonged to his family as a matter of“right.”
In another case, jurors returned a verdict
against the Crown because the king had acted“by
his will and without judgment” (Holt 1965, 91)
For subsequent generations, in both England
and the United States, the Magna Carta signified
the contrast between tyrannical government
unfettered by anything but the personal whims
of its political leadership, and representative
government limited by the letter and spirit of
the law The Magna Carta implied that no
government official, not even an autocratic
monarch asserting absolute power, is above the law
Finally, the Magna Carta has come to symbolize equality under the law Although the baronial leadership of 1215 represented a privileged class of male landowners, many provisions of the Magna Carta safeguarded the interests of women as well For example, the Magna Carta granted women the right to refuse marriage and the option to remarry It also protected a widow’sDOWERinterest in one-third
of her husband’s property
Some provisions of the Magna Carta applied more broadly to all“free” individuals (ch 39), whereas other provisions seemingly applied to every person in the realm, free or not Chapter
16, for example, stated that “no one” shall be compelled to perform service for a knight’s fee, and chapter 42 guaranteed a safe return to
“anyone” who left the realm
The most telling provision in this regard was chapter 40, which provided that “justice”
will be sold to“no one.” This provision embodies more than the idea that justice is cheapened when bought and sold It also underscores the principle that all persons, rich and poor, must
be treated the same under the law An extension
of this principle was captured by the EQUAL PROTECTION CLAUSEof theFOURTEENTH AMENDMENT
to the U.S Constitution, which, as interpreted by the Supreme Court, invalidates laws that dis-criminate on the basis of, among other things, race, gender, national origin, andILLEGITIMACY
FURTHER READINGS Bailyn, Bernard 1992 Ideological Origins of the American Revolution Enl ed Boston: Belknap.
Caher, John 2002 “Rosenblatt Reflects on Impact of Magna Carta.” New York Law Journal 228 (July 11).
Holt, J.C 1992 Magna Carta Cambridge, U.K.: Cambridge Univ Press.
Irvine, Alexander Andrew Mackay 2003 “The Spirit of Magna Carta Continues to Resonate in Modern Law ” Law Quarterly Review 119 (April) Available online at http://www.aph.gov.au/Senate/pubs/pops/pop39/c07.
pdf; website home page: http://www.a McKechnie, William Sharp 2000 Magna Carta: A Com-mentary on the Great Charter of King John: With an Historical Introduction Clark, NJ: Lawbook Exchange.
Available online at http://oll.libertyfund.org/title/338;
website home page: http://oll.libertyfund.
Plucknett, Theodore F.T 2001 A Concise History of the Common Law Clark, NJ: Lawbook Exchange.
Siegan, Bernard H 2001 Property Rights: From Magna Carta
to the Fourteenth Amendment New Brunswick, NJ:
Transaction.
Trevelyan, George M., and Anthony Gatrell 1982 A Shortened History of England New York: Penguin.
MAGNA CARTA 429
Trang 3Wells, J.C 2002 Magna Carta, or, The Rise and Progress of Constitutional Civil Liberty in England and America:
Embracing the Period from the Norman Conquest to the Centennial Year of American Independence Buffalo, NY:
Hein.
Wormald, Patrick 1999 The Making of English Law.
Malden, MA: Blackwell.
CROSS REFERENCES Common Law; English Law; Feudalism; Magna Carta (Appendix, Primary Document).
MAGNUSON-MOSS WARRANTY ACT The Magnuson-Moss Warranty–Federal Trade Commission Improvement Act was the first federal statute to address the law of WARRANTY The act (15 U.S.C.A § 2301 et seq.) mandates that a written warranty on any consumer product that costs more than $5 must completely and conspicuously disclose, in easily understood words, the terms and conditions of the
warran-ty A warranty may guarantee several things, such as that the item will perform in a certain way or that the manufacturer will repair or replace the item if it is defective
The act was sponsored by Senators Warren
G Magnuson and Frank E Moss Congress passed the act in 1975 Its purpose was to improve the information available to consu-mers, prevent deception, and improve competi-tion in the marketing of consumer products, which are defined as property distributed in commerce and actually used for personal, family, or household purposes The act provides
a federal CAUSE OF ACTION for consumers who experience problems with warranted durable goods If a plaintiff prevails against a seller in
a lawsuit brought under the act, the plaintiff
is entitled to recover all litigation expenses, including attorney’s fees based on actual time expended, as determined by the court
The Act does not require that manufac-turers or sellers of consumer products provide written warranties Instead, the act requires that manufacturers and sellers who do warrant their products to clearly disclose the terms of the warranty so that the consumer understands his or her rights under the warranty
In addition, according to the act, a written warranty on a consumer product that costs more than $10 must be clearly labeled as“full”
or “limited.” A full warranty means that whoever promises to fix the item must do so
in cases of defect or where the item does not
conform to the warranty This action must be done within a reasonable time and without charge A limited warranty can contain reason-able restrictions regarding the responsibilities
of the manufacturer or seller for the repair or replacement of the item
FURTHER READINGS
“A Businessperson’s Guide to federal Warranty Law.” 2006 Federal Trade Commission Available online at http:// www.ftc.gov/bcp/edu/pubs/business/adv/bus01.shtm; website home page: http://www.ftc.gov (accessed September 6, 2009).
Moore, Ellen M., and F Kelly Shuptrine 1993 “Warranties: Continued Readability Problems After the 1975 Mag-nuson-Moss Warranty Act.” Journal of Consumer Affairs
27 (June 22).
Schaefer, David T 1996 “Attorney’s Fees for Consumers in Warranty Actions —An Expanding Role for the UCC?” Indiana Law Journals 61 (summer).
CROSS REFERENCE Consumer Protection.
MAIL COVER The process governed by the U.S Postal Regulations (39 C.F.R § 233.3) that allows the recording of all the information that appears on the outside cover of mail in any class, and also allows the recording of the contents of second-, third-, and fourth-class mail, international parcel post mail, and mail on which the appropriate postage has not been paid Mail covers may be granted by the chief postal inspector, or a delegate of the inspector's, and are allowed upon the request of a law enforcement agency The law enforcement agency’s purpose must be to protect national security, locate a fugitive, obtain evidence of the commission or attempted commission of a crime, or help identify property, proceeds or assets forfeitable under law
To obtain a mail cover, the law enforcement agency must make a request in writing to the chief postal inspector, and must specify reason-able grounds demonstrating the necessity of the mail cover The regulations do not define reasonable grounds, but in Vreeken v Davis,
718 F.2d 343 (1983), the Tenth Circuit Court of Appeals held that a statement as to why the mail cover was necessary to an investigation, and that the subjects of the mail cover were underGRAND JURYinvestigation, was sufficient In Vreeken the court held that a letter stating that the plaintiffs were subjects of a grand jury investigation for taxFRAUD, and that the mail cover was necessary
430 MAGNUSON-MOSS WARRANTY ACT
Trang 4to identify promoters, finders, and investors
involved in the alleged scheme, was enough to
meet the requirements of the mail cover
regulations The court stated that the
regula-tions do not include a requirement that the
request contain “the factual predicate upon
which it concludes that the subject of the mail
cover is involved in the commission of a crime.”
The constitutionality of mail cover has been
challenged primarily as a violation of theFOURTH
AMENDMENT right against unreasonable SEARCHES
AND SEIZURES Although the U.S Supreme Court
has not addressed this issue directly, lower courts
have held that such a violation does not exist
Mail cover has been compared to the use of aPEN
REGISTER, which is a mechanical device that
records the numbers dialed on a telephone
without monitoring the conversation The
Su-preme Court, in Smith v Maryland, 442 U.S 735,
99 S Ct 2577, 61 L Ed 2d 220 (1979), held that
pen registers do not violate an individual’s Fourth
Amendment right to privacy The Court
con-cluded that there is no reasonable expectation of
privacy regarding the numbers dialed on a
telephone because the user knows that the phone
company receives those numbers The court in
Vreeken compared mail covers to pen registers
in that the contents of mail are not examined,
and that a person sending or receiving mail
should know that the information first goes to
the post office and that the outside of the mail
must be examined by employees of the post
office before it can be delivered
Mail covers also have been held not to
violate the FIRST AMENDMENT, the NINTH
AMEND-MENT, or postal regulations
FURTHER READINGS
Feld, Daniel E 1982 “Validity, under Fourth Amendment,
of ‘Mail Cover’.” American Law Reports 57.
Kerr, Orin 2009 “Applying the Fourth Amendment to the
Internet, Part II ” The Volokh Conspiracy (March 30).
Available online at http://www.volokh.com/posts/
1238441460.shtml; website home page: http://www.
volokh.com (accessed September 6, 2009).
Lichtblau, Eric 2005 “Plan to Let f.B.I Track Mail in
Terrorism Inquiries ” The New York Times (May 21).
Available online at http://www.nytimes.com/2005/05/
21/politics/21terror.html?_r=1; website home page:
http://www.nytimes.com (accessed September 6, 2009).
MAIL FRAUD
A crime in which the perpetrator develops a
scheme using the mails to defraud another of
money or property This crime specifically requires
the intent to defraud, and is a federal offense governed by section 1341 of title 18 of the U.S
Code The mail fraud statute was first enacted in
1872 to prohibit illicit mailings with the Postal Service (formerly the Post Office) for the purpose
of executing a fraudulent scheme
Initially, courts strictly followed the mail
FRAUD statute’s language and interpreted it narrowly The early decisions required a con-nection between the fraudulent scheme and the misuse of the mails for a violation of the mail fraud statute Since its enactment, application
of the statute has evolved to include dishonest and fraudulent activities with only a tangential relationship to the mails
Punishment for a conviction under the mail fraud statute is a fine or imprisonment for not more than five years, or both If, however, the violation affects a financial institution, the punishment is more severe: The statute pro-vides that“the person shall be fined not more than $1,000,000 or imprisoned not more than
30 years, or both.”
Both the Supreme Court and Congress have consistently broadened the mail fraud statute since its enactment Prior to a 1909 amendment, a violation of the mail fraud statute required proof, among other requirements, of either opening or intending to open correspondence or communi-cation with another person In 1909 Congress eliminated this requirement and replaced it with the language that the mails be used “for the purpose of executing such scheme or artifice or attempting so to do.” This amendment followed the Supreme Court’s decision in Durland v
United States, 161 U.S 306, 16 S Ct 508, 40 L Ed
709 (1896), which held that the mailing only needed to“assist” in the completion of the fraud
Although this amendment was the last significant change until 1988, the Supreme Court has struggled with the relationship between the mailing element and the execution of the fraud
The Court’s struggle with this relationship is illustrated by two of its decisions: United States v
Maze, 414 U.S 395, 94 S Ct 645, 38 L Ed 2d 603 (1974), and Schmuck v United States, 489 U.S
705, 109 S Ct 1443, 103 L Ed 2d 734 (1989) In Maze, the defendant stole his roommate’s credit card and car and signed his roommate’s name to the chargeVOUCHERSto obtain food and lodging
The merchants mailed the invoices to a bank in Louisville, Kentucky The Supreme Court held that this did not fall within the scope of the mail
MAIL FRAUD 431
Trang 5fraud statute because the mailings did not perpetuate the fraud The Court held that the scheme did not depend on the mailings and that the fraud was completed once the defendant signed the vouchers The Court refused to interpret the statute as merely a jurisdictional requirement and stated that “Congress could have drafted the mail fraud statute so as to require only that the mails be in fact used as a result of the fraudulent scheme.”
However, in Schmuck, the Court did expand the mail fraud statute In Schmuck, the defen-dant sold used cars to auto dealers in which he had rolled back the odometers to inflate the vehicles’ value The dealers sent title application forms to the state department of transportation
to register the cars after the dealers sold them to individual purchasers The Court held that the sale of the vehicles depended on the transfer
of title and that, although the mailing of the registration may not have contributed directly
to the scheme, it was necessary for the passage
of title and perpetuation of the scheme
Since the mid-1980s Congress has amended the mail fraud statute twice In 1988 Congress added section 1346, which states that the term
“scheme to defraud” includes a scheme to deprive another of the intangible right of honest services In 1994 Congress expanded the use
of the mails to include any parcel that is“sent or delivered by a private or commercial interstate carrier.” As a result of these amendments, the mail fraud statute has become a broad act for prosecution of dishonest and fraudulent activi-ties, as long as those crimes involve the mails
or an interstate carrier
FURTHER READINGS Brogan-Johnson, Rebecca L 2001 “Defining ‘Property’
under the Mail Fraud Statute ” Loyola Law Review 47 (summer).
Henning, Peter J 1995 “Maybe It Should Just Be Called Federal Fraud: The Changing Nature of the Mail Fraud Statute ” Boston College Law Review 26.
Hurson, Daniel W 2001 “Mail Fraud, the Intangible Rights Doctrine, and the Infusion of State Law: A Bermuda Triangle of Sorts ” Houston Law Review 38 (spring).
Podgor, Ellen S 1992 “Mail Fraud: Opening Letters.” South Carolina Law Review 43 Available online at http://
papers.ssrn.com/sol3/papers.cfm?abstract_id=1311868;
website home page: http://papers.ssrn.com (accessed August 9, 2009).
vMAINE, HENRY JAMES SUMNER Sir Henry James Sumner Maine was a lead-ing nineteenth-century English jurist Maine’s writings on the social and historical bases of
all legal systems have been recognized for their clarity of thought and style, although modern commentators have criticized Maine for overgeneralization
Maine was born August 15, 1822, in Kelso, Scotland In 1844 he graduated from Cam-bridge University, where he tutored until he was appointed to be a professor ofCIVIL LAWin 1847
He criticized LEGAL EDUCATION for teaching practical skills rather than the analysis of law
as a science His legal practice was limited, as he concentrated on publishing legal and political writings
Maine first achieved prominence with the publication of Ancient Law in 1860 Ancient Law traced the historical development of law in the ancient world Maine argued in it that there are two types of societies: static and progressive Static societies include most of the non-Western world He believed that countries such as India and China were locked in an unchanging world, bound by a fixed legal condition dominated
by family dependency In those societies, laws had very limited application and were binding not on individuals but on families The rule of conduct for the individual was the law of the home, as distinguished from civil law
In contrast, Maine proposed, European societies were progressive, characterized by a
Henry Maine.
LIBRARY OF CONGRESS
EXCEPT THE BLIND
FORCES OFNATURE,
NOTHING MOVES ON
THIS WORLD WHICH IS
NOTGREEK IN
ITS ORIGIN
432 MAINE, HENRY JAMES SUMNER
Trang 6desire to improve and to develop In progressive
societies, civil law grew as a greater number of
personal and property rights were removed
from the domestic forum to the public tribunal
Maine saw the distinguishing feature in this
movement as the gradual dissolution of family
dependency and its replacement by individual
obligation—as a movement from personal
con-ditions to agreement, from status to contract
Maine believed that the modern legal order
would make talent and ability more important
than race, sex, or family in shaping personal
status His beliefs in the evolution of Western law,
and progress in general, struck a chord in the
Anglo-American legal community His theories
were attractive to those in the United States
who saw a powerful national economy reshaping
society and creating opportunity for those who
were willing to take risks and to work hard
Maine took a hiatus from his professorship
in 1863, to serve as a legal member of the
Viceroy’s Council in India for six years Upon
his return to England in 1869, he resumed his
legal scholarship, publishing Village
Communi-ties in 1871, The Early History of Institutions in
1875, and Early Law and Custom in 1883
Maine’s conclusions have been challenged
over the past century Historians and social
scientists have pointed out that many of his
interpretations are false and based on limited
information Despite these perceived
short-comings, Maine is still regarded as a seminal
figure in JURISPRUDENCE His use of historical
and anthropological methods was
groundbreak-ing, and his strong conceptual framework helped
to reshape the way in which legal developments
are analyzed
Maine died February 3, 1888, in Cannes,
France
FURTHER READINGS Cocks, Raymond 2004 Sir Henry Maine: A Study in Victorian Jurisprudence Cambridge, U.K.: Cambridge Univ Press.
Landauer, Carl 2003 “Henry Sumner Maine’s Grad Tour:
Roman Law and Ancient Law ” Current Legal Issues 6.
Maine, Henry James Sumner Village Communities in the East and West: Six Lectures Delivered at Oxford 1876.
New York: Henry Hold.
MAINTENANCE Unauthorized intervention by a nonparty in a lawsuit, in the form of financial or other support and assistance to prosecute or defend the litigation
The preservation of an asset or of a condition of property by upkeep and necessary repairs
A periodic monetary sum paid by one spouse for the benefit of the other upon separation or the dissolution of marriage; also called ALIMONY or spousal support
At COMMON LAW the offense of CHAMPERTY AND MAINTENANCE arose when a stranger bar-gained with a party to a legal action, undertak-ing to pay for the litigation in exchange for a promise of a portion of the recovery The common-law doctrines of champerty and main-tenance were designed to stop vexatious and speculative litigation supported by officious inter-meddlers (nonparties with improper motives)
These common-law principles have been adop-ted in varying degrees in the Uniadop-ted States, depending on the particular state
The term maintenance is also used to describe the expenses of preserving property, which may be deductible according to the applicable state or federal tax laws Maintenance expenses are typically recurring, with the goal of preserving the particular asset in its original condition, to prolong its useful life Mainte-nance differs from a repair because a repair is
Henry James Sumner Maine 1822–1888
❖
1822 Born, Kelso, Scotland
◆
1847 Appointed professor of civil law at Cambridge University
1857–58 Sepoy rebellion led to removal of East India Co.'s control on India and centralization of English administration there
◆
1860 Ancient Law published
1861–65 U.S Civil War
1863–69 Shaped plans for codification of Indian law while serving as a legal member of the Viceroy's Council in India
◆
1875 Early
History of Institutions
published
◆
1869–78 Held chair of comparative jurisprudence at Oxford
1871 Village Communities published
1888 Died, Cannes, France
1877–88 Served as master of Trinity College, Cambridge
1883 Early Law and Custom published
MAINTENANCE 433
Trang 7an expenditure designed to return an asset to its normal operating condition
In FAMILY LAW maintenance is often used as
a synonym for spousal support or alimony, and the term is in fact replacing alimony Tradition-ally, alimony was solely the right of the wife to
be supported by the husband In Orr v Orr, 440 U.S 268, 99 S Ct 1102, 59 L Ed 2d 306 (1979), the U.S Supreme Court held that an Alabama statute (Ala Code § 51 to
30-2-53 [1975]) that provided that only husbands could be required to pay alimony violated the
EQUAL PROTECTION CLAUSE of the FOURTEENTH AMENDMENT Under current law alimony may
be payment by either the wife or the husband
in support of the other
The award of spousal maintenance is generally determined based on all or some of the following guidelines: the recipient’s financial needs; the payer’s ability to pay; the age and health of the parties; the standard of living the recipient became accustomed to during the marriage; the length of the marriage; each party’s ability to earn and be self-supporting;
and the recipient’s nonmonetary contributions
to the marriage
The amount and length of spousal mainte-nance payments may be agreed to by the parties and approved of by the court, or may be set by the court when the issue is contested Some states have adopted financial schedules to help judges determine the appropriate level of support Although maintenance generally takes the form of periodic payments of money directly to the recipient, it can also constitute
a payment to a third party to satisfy an obligation of the receiving spouse Maintenance may be set in a predetermined amount, such as
$1,000 a month, or it may be a fluctuating percentage, such as 25 percent of the payer’s gross income
Spousal maintenance may be temporary or permanent The parties generally may adjust its amount at a future date by returning to court and reassessing the relevant criteria at that time
In some states the parties may forever waive their right to spousal maintenance by written agreement
Spousal maintenance payments always cease upon the death or remarriage of the recipient
Some states have adopted laws that provide for the termination of maintenance when the payer can show that the recipient is living with another person as if married, but has not remarried because he or she wants to continue
to receive maintenance payments Maintenance also generally terminates upon the death of the payer, although a minority of states will grant the receiving spouse a claim on the estate of the paying spouse Alternatively, many states require the paying spouse to carry insurance on his or her life, payable to the recipient spouse,
in lieu of granting the recipient the right to make a claim on the payer’s estate
Spousal maintenance that is periodic and made in discharge of a legal obligation is included in the gross income of the recipient and is deductible by the payer Other voluntary payments, made by one spouse to the other, are not treated the same way by the tax code
RESOURCES Cornick, Matthew S 1995 A Practical Guide to Family Law Eagan, MN: West.
“Maintenance Law &Legal Definition.” US Legal Definitions Web site Available online at http://definitions.uslegal com/m/maintenance/; website home page: http://defini tions.uslegal.com (accessed September 6, 2009) Meakin, Robert 2008 The Law of Charitable Status: Mainte-nance and Removal New York: Cambridge Univ Press CROSS REFERENCE
Divorce.
vMAITLAND, FREDERIC WILLIAM Frederic William Maitland pioneered the study
of early English LEGAL HISTORY A talented and prolific scholar, Maitland imaginatively recon-structed the world of Anglo-Saxon law Maitland was born May 28, 1850, in London, England He graduated from Cam-bridge University and then studied law at Lincoln’s Inn He joined the bar in 1876 and soon proved himself a skilled attorney Mait-land’s interests subsequently shifted to the history of ENGLISH LAW He set as his goal the writing of a scientific and philosophical history
of English law that took into account its interaction with the social, economic, and cultural life of the English people His first book, Pleas of the Crown for the County of Gloucester, was published to acclaim in 1884 In that year he left his law practice and became a reader in English law at Cambridge In 1888 he was named a professor of law at Cambridge Between 1885 and 1906 Maitland published many volumes of English history, including Justice and Police (1885), The History of English Law before the Time of Edward I (with SIR FREDERICK POLLOCK, 1895), and Domesday Book and Beyond (1897) He also helped form the
434 MAITLAND, FREDERIC WILLIAM
Trang 8SELDEN SOCIETY, an association devoted to the
preservation and analysis of Old English legal
history Maitland contributed many
introduc-tions to society publicaintroduc-tions, which mainly
consisted of reprints of primary legal
docu-ments Finally, Maitland was a popular lecturer
His published lectures include Constitutional
History of England (1908), Equity (1909), and
The Forms of Action (1909)
As a historian, Maitland has been praised
for his ability to grasp and articulate the great
central themes underlying the development of
the COMMON LAW, and his ability to penetrate
and render the inner meaning of words He
enjoyed being a historical detective, sifting
through masses of often contradictory and
confusing sources to find historical truth
Despite his respect for the English
common-law tradition, Maitland was not an antiquarian
He actively supported the major law reform
efforts of his day
Maitland’s historiography was not based on
ideology or theory History, to Maitland, was
not the product of impersonal social or
econom-ic forces, but something more complex
There-fore, in the world described in his writings,
individual personalities, particular events,
cultur-al traditions, and the peculiarity of language play
significant roles Running through his work is a
deep respect for the toughness, resiliency, and
vitality of English common law Common-law
lawyers and judges are intellectual and moral
heroes in his evocation of medieval England
Though many of Maitland’s claims have
been qualified or refuted by later research and
scholarship, he is recognized as a seminal figure
in the study of English legal history Maitland
died December 19, 1906, at Las Palmas, Canary
Islands
MAJORITY Full age; legal age; age at which a person is no longer a minor The age at which, by law, a person
is capable of being legally responsible for all of his
or her acts (e.g contractual obligations), and is entitled to the management of his or her own affairs and to the enjoyment of civic rights (e.g
right to vote) The opposite of minority Also the status of a person who is a major in age
The greater number The number greater than half of any total
The common-law age of majority is 21 although state legislatures may change this age
by statute.INFANTSreach the age of majority on the first moment of the day preceding their 21st birthday Minority is the period of time when a child is an infant
MAKER One who makes, frames, executes, or ordains; as a lawmaker, or the maker of a promissory note
One who signs a note to borrow and, as such, assumes the obligation to pay the note when due
The person who creates or executes a note, that is, issues it, and in signing the instrument makes the promise of payment contained therein One who signs a check; in this context, synonymous with drawer One who issues a promissory note or certificate of deposit
MALA FIDES [Latin, Bad faith.]
A mala fide purchaser is one who buys property from another with the knowledge that it has been stolen In contrast, a bona fide purchaser is one who does so with no knowledge that the seller lacks good title to the property
Frederic William Maitland 1850–1906
❖
1850 Born,
London,
England
1861–65
U.S Civil War
◆
1876 Joined bar
◆
◆
1884
Pleas of the Crown for the County of Gloucester
published
1885 Justice and Police published
◆
1888 Named professor of law
at Cambridge University
◆ ◆
1897 Domesday
Book and Beyond
published
1895 The History of English Law before
the Time of Edward I published
❖
1906 Died, Las Palmas, Canary Islands
1914–18 World War I
◆◆
1909 Equity and The Forms of
Action published
1908 Constitutional History
of England published
THE HISTORY OF LAW MUST BE A HISTORY
OF IDEAS
—F REDERIC M AITLAND MALA FIDES 435
Trang 9MALA IN SE Wrongs in themselves; acts morally wrong; offenses against conscience
In CRIMINAL LAW, crimes are categorized as either mala in se or mala prohibita, a term that describes conduct that is specifically forbidden
by laws Although the distinction between the two classifications is not always clear, crimes mala in se are usually common-law crimes or those dangerous to life or limb
BATTERY and grand larceny or petit larceny are examples of offenses that courts have held to
be mala in se
MALA PROHIBITA [Latin, Wrongs prohibited.] A term used to describe conduct that is prohibited by laws, although not inherently evil
Courts commonly classify statutory crimes
as mala prohibita This, however, is not a fixed rule because not all statutory crimes are classified as such
Examples of mala prohibita include public intoxication and carrying a concealed weapon
Malcolm X was aNATION OF ISLAMminister and
a black nationalist leader in the United States during the 1950s and 1960s Since his assassi-nation in 1965, his status as a political figure has grown considerably, and he has become an internationally recognized political and cultural icon The changes in Malcolm X’s personal beliefs can be followed somewhat by the changes in his name, from Malcolm Little when
he was a young man to Malcolm X when he was
a member of the Nation of Islam to El-Hajj Malik El-Shabazz-Al-Sabann after he returned
to the United States from a spiritual pilgrimage
to Mecca in 1964 He was a ward of the state, a shoe shine boy in Boston, a street hustler and pimp in New York, and a convicted felon at the age of 20 After embracing Islam in prison and directing his grassroots leadership and speaking skills to recruit members to the Nation
of Islam, he ultimately became an influential black nationalist during the CIVIL RIGHTS MOVE-MENT of the 1960s
The fifth child in a family of eight children, Malcolm was born May 19, 1925, in Omaha, Nebraska His father, Earl Little, was a Baptist minister and a local organizer for the Universal Negro Improvement Association, a black na-tionalist organization founded by Marcus
M Garvey in the early twentieth century His mother, Louise Little, was of West Indian heritage Malcom’s father was killed under suspicious circumstances in 1931 and his mother had a breakdown in 1937
After his father’s death and his mother’s commitment to a mental hospital, Malcolm was first placed with family friends, but the state
WELFARE agency ultimately situated him in a juvenile home in Mason, Michigan, where he did well Malcolm was an excellent student in junior high school, earning high grades as well
as praise from his teachers Despite his obvious talent, his status as an African American in the 1930s prompted his English teacher to discour-age Malcolm from pursuing a professional career The teacher instead encouraged him to work with his hands, perhaps as a carpenter
Malcolm X 1925–1965
❖
1925 Born,
Malcolm Little, in
Omaha, Neb.
◆
1931 Father, Earl Little, died
1939–45 World War II
◆
1941 Moved
to Roxbury
in Boston
1946–52 Served prison sentence for burglary;
converted to Islam
1950–53 Korean War
◆
1952 Paroled, moved to Detroit to join Elijah Muhammad's Detroit temple, changed his name to Malcolm X
◆
1954 Became minister of Nation of Islam's New York temple
◆
1959 Television
program The
Hate That Hate Produced aired
◆
1963 Suspended
as Nation
of Islam minister
1961–73 Vietnam War
◆
1968 Martin Luther King Jr assassinated in Memphis, Tenn.
❖
1965 Assassinated; Autobiography of
Malcolm X (with Alex Haley) published
◆
1964 Left the Nation of Islam; met with Martin Luther King; made Hajj to Mecca; founded Organization of Afro-American Unity (OAAU)
436 MALA IN SE
Trang 10In 1941, shortly after finishing eighth grade,
Malcolm moved to Roxbury, a predominantly
African American neighborhood in Boston
From 1941 to 1943 he lived in Roxbury with
his half-sisterELLA LEE LITTLE-COLLINS He worked
at several jobs, including one as the shoe shine
boy at the Roseland State Ballroom He became
what he later described as a Roxbury hipster,
wearing outrageous zoot suits and dancing at
local ballrooms
Malcolm moved to Harlem in 1943, at the
age of 18 Here he earned the nickname Detroit
Red, because of his Michigan background and
the reddish hue to his skin and hair In his early
Harlem experience, Malcolm was a hustler,
dope dealer, gambler, pimp, and numbers
runner for mobsters
In 1945, when his life was threatened by a
Harlem mob figure named West Indian Archie,
Malcolm returned to Boston, where he became
involved in aBURGLARYring with an old Roxbury
acquaintance In 1946 he was caught attempting
to reclaim a stolen watch he had left for repairs,
and the police raided his apartment and arrested
him and his accomplices, including two white
women He was charged with LARCENY and
breaking and entering, to which he pleaded
guilty at trial On February 27, 1946, he entered
Charlestown State Prison to begin an eight- to
ten-year sentence; he was 20 years old
Malcolm was transferred in 1948 to an
experimental and progressive prison program in
Norfolk, Massachusetts The Norfolk Prison
Colony gave greater freedom to its inmates It
also had an excellent library, and Malcolm
began to read voraciously Prompted by his
brother, Reginald Little, Malcolm converted to
Islam while in prison and became a follower of
Elijah Muhammad, the leader of the Nation of
Islam The Nation of Islam, founded by Wallace
D Fard in the 1930s, advocated racial
separat-ism and enforced a strict moral code for its
followers, all of whom were African American
Malcolm was paroled from prison in 1952
He immediately moved to Detroit, where he
worked in a furniture store and attended the
Nation of Islam Detroit temple Malcolm soon
abandoned the surname Little in favor of X,
which represented the African surname he had
never known With his oratory skill, Malcolm X
quickly became a national minister for the
Nation of Islam As a devout follower of Elijah
Muhammad, he helped to establish numerous
temples across the United States He became the
minister for temples in Boston and Philadel-phia, and in 1954 he became minister of the New York temple In 1958 he married Sister Betty X, who had earlier joined the Nation of Islam as Betty Sanders Together they had six children, including twins who were born after Malcolm’s assassination
During his early years with the Nation of Islam, Malcolm’s primary role was as spokes-man for Elijah Muhammad He was a highly effective grassroots activist and successfully recruited thousands of urban blacks to join the organization In 1959 a television program entitled The Hate That Hate Produced resulted
in a focused public scrutiny of the Nation of Islam and its followers, who became known to many U.S citizens as Black Muslims Increas-ingly Malcolm was seen as the national spokesman for the Black Muslims, and he was often sought out for his opinion on public issues In vitriolic public speeches on behalf of the Nation of Islam, he described whites in the United States as devils and called for African Americans to reject any attempt to integrate them into a white racist society As a Nation of Islam minister, he denounced Jews and criti-cized the more cautious mainstreamCIVIL RIGHTS
leaders as traitors who had been brainwashed by
a white society He further challenged the so-called integrationist principles of recognized civil rights leaders such asMARTIN LUTHER KING JR
Malcolm X.
AP IMAGES