Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P4 pps

His REAL ESTATE purchases were made possible by a growing and successful law practice. By 1834 he had secured his place in the local legal community through a joint publishing venture with Thomas Slidell. Their Digest of the Reported Decisions of the Superior Court of the Late Territory of Orleans and of the Supreme Court of Louisiana was widely used. Benjamin’s national reputation as a lawyer was established by his participation in a case involving the brig Creole. His brief—which reviewed the status of SLAVERY under both INTERNATIONAL LAW and U.S. domestic law—was printed as a pamphlet and widely circulated. In this more liberal period of his life, he believed and argued that slavery was against the laws of humans and nature. He would later reverse his position. Benjamin began his political career in 1842 when he was elected as the Whig candidate to the lower house of the Louisiana Legislature. He attended the Louisiana Constitutional Conven- tion from 1844 to 1845. Benjamin’s wife was not supportive of his interest in politics, or tolerant of his abs ences. In 1845, after eleven years of MARRIAGE, she moved to Paris. The couple rarely lived together again as HUSBAND AND WIFE , but they never divorced—and Benja- min’s lifelong devotion to his wife has been well documented. After his wife’s departure, Benjamin retreated to his plantation, from 1845 to 1848, and began to experiment with sugar chemistry and processing. Ultimately, he lost the planta- tion when a friend defaulted on a note that Benjamin had signed. Despite his business reversals, Benjamin had “great dreams about the future development of American commerce ” and found himself with a renewed commitment to political service. He shared a growing belief in the South that foreign commerce would strengthen the region and restore the balance of power lost by the COMPROMISE OF 1850. In 1852 Benjamin ran as a WHIG PARTY candidate for one of Louisiana’s U.S. Senate seats. His successful bid for office made him the nation’s first Jewish U.S. senator. Also in 1852, Benjamin was nominated to the U.S. Supreme Court by President MILLARD FILLMORE. Preferring to take his seat in the Senate, Benjamin declined Fillmore’s offer and thereby missed the oppor- tunity to be the first Jewish Supreme Court justice. Benjamin also turned down an appoint- ment as ambassador to Spain, in 1853. Mindful of the escalating national conflict between North and South, he wanted to stay in the United States. In 1854 he wrote, “[A] gulf is already opened between the Northern and Southern Whigs. God knows what awaits us. The future looks full of gloom to me.” Judah Philip Benjamin. PUBLIC DOMAIN. Judah Philip Benjamin 1811–1884 ◆◆◆◆◆◆◆◆◆ ❖❖ 1811 Born, St. Croix, British West Indies 1813 Family immigrated to Charleston, S.C. 1827 Moved to Louisiana 1842 Elected to Louisiana Legislature 1852 Elected first Jewish U.S. senator 1861 Appointed attorney general of the Confederacy 1861–65 U.S. Civil War 1862–65 Served as secretary of state of the Confederacy 1865 Fled to England to avoid post-war proscecution 1872 Selected as Queen's counsel 1866 Admitted to English bar at Lincoln's Inn 1883 Retired to France 1884 Died, Paris, France ▼▼ ▼▼ 1825 1800 1850 1875 1900 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 18 BENJAMIN, JUDAH PHILIP In 1856 Benjamin left the Whig party and joined the more conservativ e southern Demo- crats. He was reelected to the Senate and continued to serve Louisiana there until the CIVIL WAR. Following the election of ABRAHAM LINCOLN in 1860, Benjamin advised secession; he resigned his Senate seat when Louisiana voted to leave the Union. Benjamin was named attorney general of the Confederate States of America in early 1861. He served as attorney general until November 21, 1861, when he became secretary of war. He inherited a war department that was disorga- nized and deeply in debt. Throughout 1862, the Confederacy suffered both human resource and equipment shortages, and severe casualties. A plan by Benjamin to build troop strength by drafting slaves—with the promise of emancipa- tion for service—was prepared and sent to the Confederate congress. Seeing the initiative as a threat to the principle of slavery, the congress failed to pass the measure. Benjamin was eventu- ally charged with inefficiency, and a motion to remove him from his post was drafted. President Davis, still confident in Benja- min’s abilities, stepped in and appointed him SECRETARY OF STATE on March 18, 1862. Benjamin served in that capacity until the fall of the Confederacy, but he never fully regained his popularity with the Southern people. Viewed in an historical context, Benjamin’s service and loyalty to the Confederacy are extraordinary and commendable—especially in light of the ex- treme anti-Semitism and hatred that pervaded the South throughout the war years. After Robert E. Lee’s surrender to ULYSSES S. GRANT at Appomattox Courthouse on April 9, 1865, U.S. agents targeted Benjamin for capture because it was assumed, falsely, that he knew the location of la rge sums of money. After a brief stop in North Carolina, Benjamin headed south to Florida. Garbed as a Frenchman and speaking fluent French, he passed himself off as a journalist, Monsieur Bonfals (which translates as Mr. Good Disguise). Because Benjamin was too fat to ride a horse, he traveled by cart in the company of a former Confederate officer from New Orleans who pretended to be his interpreter. On May 1, 1865, federal agents increased their efforts to locate all Confederate fugitives, and the New York Times called for Jefferson Davis, Judah Benjamin, and Confederate secretary of war John C. Breckenridge to die “the most disgraceful death on the gallows.” The price on Benjamin’sheadwas $40,000, dead or alive. But by May, Benjamin had already made it to Tampa. With the help of Confederate sympathizers and former Confederate soldiers, Benjamin traveled from Tampa to the Gamble Mansion on Florida’s southwest coast. En route, he presented himself as Mr. Howard, a farmer and cattle buyer. With federal troops closing in, he was twice forced to hide in a canebrake near the mansion to avoid capture. Eventually, Benjamin was moved to Sarasota Bay, where he sailed down the coast to Knight’s Key with Captain Frederick Tresca, a former blockade runner, and H. A. McLeod, an experienced sailor for hire. The trio reached Knight’s Key on July 7, 1865. From there, Benjamin boarded a boat for Bimini, in the Bahamas. After this vessel was shipwrecked, he was rescued and returned to Florid a, where he again faced capture by federal agents. Benjamin eventually reached Bimini, and then set sail for England. He arrived in England on August 30, 1865, after almost five months of dangerous and grueling travel. Without funds, Benjamin made the neces- sary arrangements to practice law in England. He was admi tted to the bar at Lincoln’s Inn in 1866, and he was soon a respected member of the British bar. Most of his cases focused on corporate law. He also wrote about matters pertaining to business and corporate law. His Treatise on the Law and Sale of PERSONAL PROPERTY : With Special Reference to the American Decisions and the French Code and Civil Law was published in 1868. Commonly known as Benjamin on Sales, the book was a definitive source on commercial matters on both sides of the Atlantic for the next twenty-five years. In 1872, Benjamin was selected Queen’s Counsel. He practiced law in England until 1883, when he retired to France. He is credited with making major contributions to the British Empire’s dominance of world trade in the last half of the nineteenth century. Benjamin died May 6, 1884, in Paris. He was buried at the Pere Lachaise Cemetery under a headstone marked Philippe Benjamin. FURTHER READINGS Curran, Charles. “The Three Lives of Judah P. Benjamin.” 1967. History Today 17, no. 9. THE NATION WHICH PRESENTS ITSELF WITH AN ORGANIZED GOVERNMENT AND INSTITUTIONS CREATED BY THE FREE WILL OF THE CITIZENS [MAY] DEMAND ITS RIGHT RECOGNITION . —JUDAH BENJAMIN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BENJAMIN, JUDAH PHILIP 19 Evans, Eli N., and Robert Weinberg. 1988. Judah P. Benjamin: The Jewish Confederate. New York: Free Press. Field, Martha A. “The Differing Federalisms of Canada and the United States.” Law and Contemporary Problems 55. Ginsburg, Ruth Bader. “From Benjamin to Brandeis to Breyer: Is There a Jewish seat?” 2002. Brandeis Law Journal 41 (winter). “Journey to Asylum.” 1987. Civil War Times Illustrated 26, vol. 8 (December). “Judah P. Benjamin’s Loyalty to Jefferson Davis.” 1966. Georgia Review 20, vol. 3. Krause, Allen. “The Enigmatic Judah Benjamin.” 1978. Midstream 24, no. 8. “Meeting Mr. Benjamin.” 1986. Queen City Heritage 44, vol. 3 (fall). Naresh, Suman. 1996. “Judah Philip Benjamin at the English Bar.” Tulane Law Review 70 (June). Patrick, Rembert W. 1950. The Opinions of the Confederate Attorneys General, 1861–1865. Buffalo: Dennis. Preisser, Thomas M. “The Virginia Decision to Use Negro Soldiers in the Civil War, 1864–1865.” 1975. Virginia Magazine of History and Biography 83, no. 1. Available online at http://www.jstor.org/stable/4247927; website home page: http://www.jstor.org (accessed July 7, 2009). Sanchez, John E. 1991. “Religious Affirmative Action in Employment: Fearful Symmetry.” Detroit College of Law Review. Sarna, Jonathan D. “The Spectrum of Jewish Leadership in Ante-Bellum America.” 1982. Journal of American Ethnic History 1, no. 2. Schene, Michael G. 1982. The Daring Escape of Judah P. Benjamin. Tampa, FL: Tampa Bay History. Wacholder, Ben Zion. “Some Legal and Political Views of Judah P. Benjamin. ” 1956. Historica Judaica 18, no. 1. v BENJAMIN, PARK Park Benjamin was an eminent patent lawyer and author. Benjamin was born May 11, 1849. A graduate of the U.S. Naval Academy in 1867, he left the Navy in 1869 and earned a bachelor of laws degre e from Albany Law School in 1870. From 1872 to 1878, Benjamin was associate editor of the Scientific American and became editor in chief of Appleton’s Cyclopædia of Applied Mechanics in 1893. Benjamin wrote The United States Naval Academy (1900) and numerous essays and naval articles for various periodicals. He died August 21, 1922, in New York City. v BENTHAM, JEREMY Described as a philosopher, jurist, and reformer, Jeremy Bentham is possibly best known as one of the leading proponents of utilitarianism. Although he was a devoted scholar who spent much of his life writing about legal reform, he published little. Regardless, Bentham had a profound effect on the politics of his day, influenced many of his contemporaries (includ- ing eminent British philosopher JOHN STUART MILL ), and introduced a number of terms and definitions, which are still used today in the study of philosophy, economics, and politics. Bentham was born February 15, 1748, in Houndsditch, near London, into a family of attorneys. He was educated at Oxford and admitted to the bar, but decided not to follow in the footsteps of his father and grandfather. Instead of practicing law, Bentham chose to pursue a career in legal, political, and social reform, applying principles of ethical philoso- phy to these endeavors. He was greatly influenced by the work of Claude-Adrien Helvétius, a French philosopher who believed t hat a ll pe rsons are intellectua lly Park Benjamin 1849–1922 ◆ ◆◆ ◆ ◆ ◆ ◆ ◆ ❖ ❖ 1849 Born, New York City 1860 Lenoir constructed the first internal combustion engine 1861–65 U.S. Civil War 1867 Graduated from U.S. Naval Academy 1870 Received bachelor of laws from Albany Law School (NY) 1872–78 Worked as associate editor at Scientific American 1879 Edison invented the incandescent light bulb 1893 Became editor in chief at Appleton's Cyclopaedia of Applied Mechanics 1898 A History of Electricity published 1888 Eastman introduced the "Kodak" box camera 1908 Henry Ford introduced the Model T 1922 Died, New York City 1914–18 World War I ▼▼ ▼▼ 1850 1925 1900 1875 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 20 BENJAMIN, PARK equal and that differences arise solely from e duca- tional opportunities. Helvetius also formulated a theory t hat good is measured by the degree of self-contentment experienced by a person, and that self-interest is the compelling force for all action. This l atter belief had a profound effect on Bentham, who incorporated the idea in the formulation of the basic principles of utilitarianism. In 1789 Bentham gained public attention with the publication of his Introduction to the Principles of Morals and Legislation, which set forth his fundamental principles. He believed that the greatest happiness for the greatest number is the basis of morality. Happiness and pleasure were the same, and included social, intellectual, and moral as well as physical pleasures. According to Bentham, each pleasure has certain characteristics, including intensity and duration, and he established a scale of measurement to judge the worth of a plea sure or a pain. Bentham further opined that each person strives to do what makes him or her happiest. The happiness of an individual and the GENERAL WELFARE are complementary; the achievement of the greate st amount of happi- ness is the goal of morality. Bentham applied his views to reform legisla- tion, feeling that the purpose of the law was to maximize total happiness within the limitations of government. As a result, he achieved great advances in prison reform, CRIMINAL LAW, CIVIL SERVICE , and insurance and was active in the compilation of laws into comprehensible text. Bentham is particularly noted for his theories of punishment. He claimed that all punishment required justification, because he believed that all punishment is inherently evil. Bentham also believed that to a utilitarian such as himself, real justice is less important than apparent justice. In other words, Bentham believed that seeing justice done is more important than justice actually being done. Influenced by the work of Italian philosopher Cesare Beccaria, Bentham formed some harsh notions of punishment, such as his belief that in certain cases torture could be justified. He wrote that punishment was a relatively weak disincentive against recidivism, and that there is always a risk that an offender will commit another offense. He suggested that torture removes this risk because torture ceases immediately when a subject com- plies with the demands of authority. Of course, this idea discounts the question of whether the subject can in fact comply. Jeremy Bentham 1748–1832 ◆◆◆◆◆◆◆ ❖ ❖ 1748 Born, London, England 1760 Admitted to Queen's College, Oxford 1766 Received M.S. from Queen's College 1776 Fragment on Government published anonymously 1775–83 American Revolution 1789 Introduction to the Principles of Morals and Legislation published; French Revolution began 1809 Completed criticism on working of English libel law 1817 Became a member of Lincoln's Inn, Oxford 1823 Helped establish Westminster Review 1832 Died, London, England ▼▼ ▼▼ 1750 1825 1800 1775 Jeremy Bentham. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BENTHAM, JEREMY 21 As a theorist of punishment, Bentham was naturally interested in the English penal system. His studies led him to develop a model of an English prison that applied his theories of punishment to incarceration. He called his model the “Panopticon.” The Panopticon was a prison building—and a whole system of incarceration—that allowed guards total sur- veillance and physical contro l over prison inmates. Writing of the Panopticon, Bentham claimed that hard labor, constant surveillance and monitoring, and solitary confinement (for purposes of reflection and repentance) were fundamental requirements needed to reform and rehabilitate criminal offenders. This theory builds upon the notion that punishment can be the means to make an offender lead a life of moral and civil rectitude. Bentham attempted to persuade President JAMES MADISON to adopt a code of laws that he himself had devised. The philosopher was careful to cite existing rules and previous cases to illustrate that his legal theories were sound. Madison rejected Bentham’s idea in 1811, but in the 1830s a group of U.S. reformers adopted several of his policies with the objective of formulating a simplified code of law. Although Bentham is often credi ted with founding University College, London, this belief is erroneous. However, Bentham’s views on unbiased access to education were instrumental in the school’s development. When Bentham died June 6, 1832, per his instruc tions, his body was dissected, embalmed, dressed, and seated in a chair. The seated Bentham is housed in a cabinet in the main building of University College, along with his manuscripts, which are preserved in the school’s library. FURTHER READINGS Ben-Dor, Oren. 2000. Constitutional Limits and the Public Sphere: A Critical Study of Bentham’s Constitutionalism. Oxford; Portland, OR: Hart. Bentham, Jeremy. 1996. An Introduction to the Principles of Morals and Legislation. New York: Oxford Univ. Press. Engelmann, Stephen G. 2003. Imagining Interest in Political Thought: Origins of Economic Rationality. Durham, NC: Duke Univ. Press. Kelly, Paul Joseph. 1990. Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law. Oxford: Oxford Univ. Press. Sweet, William. “Bentham, Jeremy (1748–1832).” The Internet Encyclopedia of Philosophy Web site. Available online at http://www.utm.edu/research/iep/b/bentham. htm; website home page: http://www.utm.edu (accessed July 7, 2009). BEQUEATH To dispose of personal property owned by a decedent at the time of death as a gift under the provisions of the decedent ’s will. The term bequeath applies only to PERSONAL PROPERTY . A testator, to give real property to someone in a testamen tary provision, devises it. Bequeath is sometimes used as a synonym for devise. BEQUEST A gift of personal property, such as money, stock, bonds, or jewelr y, owned by a decedent at the time of death which is directed by the provisions of the decedent’s will; a legacy. A bequest is not the same as a devise (a testamentary gift of real property) although the terms are often used interchang eably. When this occurs, a bequest can be a gift of real property if the testator’s intention to dispose of real property is clearly demonstrated in the will. There are different types of bequests. A charitable bequest is a gift intended to serve a religious, educational, political, or general social purpose to benefit mankind, aimed at the com- munity or a particular segment of it. Charitable bequests also reduce the estate taxes that might be owed on the estate left by a decedent. A demonstrative bequest is a gift of money that must be paid from a particular source, such as a designated bank account or the sale of stock in a designated corporation. A general bequest is a gift of money or other property that can be paid or taken from the decedent’s general assets and not from a specific fund designated by the terms of the will. BERING SEA DISPUTE The Bering Sea Dispute involved a late nine- teenth-century contro versy between the United States on one side and Great Britain and Canada on the other side over the international status of the Bering Sea. The dispute was generated over the U.S. assertion that it controlled the Bering Sea and all seal hunting off the coast of Alaska. The dispute, which led to the seizure of a number of Canadian ships by the United States, was finally resolved by an international ARBITRATION in 18 93. The Bering Sea is the northernmost part of the Pacific Ocean. After the United States EVERY LAW IS AN INFRACTION OF LIBERTY . —JEREMY BENTHAM GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 22 BEQUEATH purchased Alaska from Russia in 1867, it assumed the right of control over the Bering Sea that had been held by Russia. The dispute arose after the Alaska Commercial Company, a U.S. business that had a monopoly on killing seals for their furs, found that Canadian hunters were killing seals as they swam through the ocean each spring toward their summer homes in the Pribilof Islands. The Pribilof Islands were part of the U.S. Alaskan territories. Fearing that the herds would be killed off by pelagic (open-sea) sealing, the U.S. government seized several Canadian sealing vessels in 1886 and instituted condemnation proceedings in an Alaskan court. The proceeds were given to the Alaskan Commercial Com- pany as compensation. These actions outraged the Canadian and British governments, who disputed the U.S. claim that it controlled not just the three-miles of sea bordering the Pribilof Islands but the entire Bering Sea. After several years of tensions and additional vessel seizures, the three coun- tries agreed to arbitration by an international tribunal in Paris. The tribunal issued its decision in 1893. It rejected the U.S. claim of total control of the Bering Sea and awarded the Canadian owners of the seized ships $473,000 in damages. The tribunal also imposed restrictions on pelagic sealing, but it failed to control the problem. In 1911 the United States, Great Britain, Russia, and Japan signed a treaty that prohibited pelagic sealing for a period of time and then placed limits on how many seals could be hunted. The agreement was an important step in seeking international consensus on environmental matters. FURTHER READINGS Gay, John Thomas. 1987. The American Fur Seal Diplomacy. New York: Peter Lang. Mead, Walter Russell. 2002. Special Providence: American Foreign Policy and How It Changed the World. New York: Routledge. Scholefield, E.O.S., and Frederick William Howay. 1914. British Columbia from the Earliest Times to the Present, vol. 2. Vancouver, B.C.: Clarke. CROSS REFERENCES Boundaries; International Law. v BERLE, ADOLPH AUGUSTUS, JR. Adolph Augustus Berle Jr. was a diplomat, teacher, and writer. He was born January 29, 1895, in Boston, Massachusetts. He was educat- ed at Harvard, receiving a bachelor of arts degree in 1913, a master of arts degree in 1914, and a bachelor of laws degree in 1916, in which year he was also admitted to the bar. After military duty in WORLD WAR I, Berle served as a U.S. representative at the Paris Peace Conference during 1918 and 1919. He opposed the conditions of the Versailles Treaty and resigned from the delegation. He returned to the United States and established his legal practice in New York City. Berle began teaching corporate law at Columbia University in 1927. During the 1930s he assisted the administration of President FRANKLIN DELANO ROOSEVELT in the formulation of NEW DEAL legislation concerning SECURITIES and banking. From 1938 to 1944 Berle was assistant SECRETARY OF STATE; in 1945 he was U.S. ambassador to Brazil; and in 1946 he returned ▼▼ ▼▼ 19001900 Adolph Augustus Berle Jr. 1895–1971 18751875 19251925 19501950 19751975 ❖ ❖ ◆◆ ◆ ◆ ◆ 1895 Born, Boston, Mass. 1914–18 World War I 1918–19 Served as member of Paris Peace Conference 1927 Began teaching corporate law at Columbia University 1932 Became member of New Deal "brain trust"; The Modern Corporation and Private Property published 1938 Appointed assistant secretary of state 1950–53 Korean War 1934–37 Served as chamberlain for Mayor LaGuardia (New York City) 1945 Appointed U.S. ambassador to Brazil 1952–55 Served as chair of the Liberal Party 1966 Retired from teaching at Columbia 1971 Died, New York City 1939–45 World War II ALL POWERS GRANTED TO A CORPORATION WHETHER DERIVED FROM STATUTE OR CHARTER [ARE] EXERCISABLE ONLY FOR THE RATABLE BENEFIT OF ALL THE SHAREHOLDERS AS THEIR INTEREST APPEARS . —ADOLPH BERLE JR. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BERLE, ADOLPH AUGUSTUS, JR. 23 to Columbia University to continue his teach- ing career. He helped establish the Liberal party and acted as its chairman from 1952 to 1955. One of Berle’s several publications was The Modern Corporation and Private Property (1932), written with coauthor G. C. Means. Berle died February 17, 1971, in New York City. v BERRIEN, JOHN MACPHERSON John Macpherson Berrien served as U.S. attor- ney general under President ANDREW JACKSON. Berrien was born August 23, 1781, in New Jersey. He graduated from Princeton in 1796 and was admitted to the Georgia bar in 1799. He began his judicial career in Georgia as a CIRCUIT COURT judge in 181 0 and remained on the bench until 1821. Berrien sat in the Georgia Senate from 1822 to 1823. From 1824 to 1829, he represented Georgia in the U.S. Senate, as a member of the DEMOCRATIC PARTY. He served as U.S. attorney general from 1829 to 1831. He again served as senator from Georgia from 1841 to 1845 and from 1845 to 1852 as a member of the WHIG PARTY. BEST EVIDENCE An original document or object offered as proof of a fact in a lawsuit as opposed to a photocopy of, or other substitute for, the item or the testimony of a witness describing it. Best evidence, also known as PRIMARY EVIDENCE , usually denotes an original writing, which is considered the most reliable proof of its existence and its contents. If it is available to, and obtainable by, a party, it must be offered into evidence at a trial. Best evidence is distinguishable from SECONDARY EVIDENCE,a reproduction of an original or testimony establishing its existence, which will be admis- sible as proof only if the best evidence cannot be obtained, and ensuring no fault of the party seeking to present it. The principle that the best available evidence must be presented as proof in a lawsuit is embodied in the best- evidence rule. BESTIALITY Sexual relations between a human being and an animal. At COMMON LAW, bestiality was considered a crime against nature and was punishable by death. In the early 2000s, it is prohibited by statutes in most states as a form of SODOMY. The penalty for committing the offense is a fine, imprisonment, or both. BEYOND A REASONABLE DOUBT The standard that must be met by the prosecu- tion’s evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty. If the jurors or judge have no doubt as to the defendant’s guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant’s guilt beyond a reason- able doubt and the DEFENDANT should be pronounced GUILTY. The term connotes that evidence establishes a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible. It does not mean that no doubt exists as to the accused’s guilt, but only that no REASONABLE DOUBT is possible from the evidence presented. John Macpherson Berrien 1781–1856 ◆ 1781 Born, Rocky Hill, New Jersey ◆ ◆ ◆ ◆ 1796 Graduated from Princeton University 1829–31 Served as U.S. attorney general under President Jackson 1845 Appointed to Supreme Court of Georgia; left to rejoin U.S. Senate 1861–65 U.S. Civil War 1775–83 American Revolution 1856 Died, Savannah, Georgia 1841 Reelected to U.S. Senate 1810–21 Served as circuit court judge in Georgia 1799 Admitted to Georgia bar 1824 Elected to U.S. Senate ▼▼ ▼▼ ❖ 17751775 18251825 18501850 18751875 18001800 ❖ ◆ 1822 Elected to Georgia state Senate IF THIS POWER IS NOT GRANTED BY THE CONSTITUTION, IT IS VERY CERTAIN , THAT NO SERIES OF USURPATION CAN GIVE IT A LEGITIMATE EXISTENCE IN THAT INSTRUMENT . —JOHN BERRIEN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 24 BERRIEN, JOHN MACPHERSON Beyond a reasonable doubt is the highest standard of proof that must be met in any trial. In civil litigation, the standard of proof is either proof by a preponderance of the evidence or proof by clear and convincing evidence. These are lower burdens of proof. A preponderance of the evidence simply means that one side has more evidence in its favor than the other, even by the smallest degree. Clear and convincing evidence is evidence that esta blishes a high probability that the fact sought to be proved is true. The main reason that the high proof standard of reasonable doubt is used in criminal trials is that such proceedings can result in the deprivation of a defendant’s liberty or even in his or her death. These outcomes are far more severe than occur in civil trials, in which money damages are the common remedy. CROSS REFERENCES Clear and Convincing Proof; Due Process of Law; Preponderance of Evidence; Reasonable Doubt. BIAS A predisposition or a preconceived opinion that prevents a person from impartially evaluating facts that have been presented for determination; a prejudice. A judge who demonstrates bias in a hearing over which he or she presides has a mental attitude toward a party to the litigation that hinders the judge from supervising fairly the course of the trial, thereby depriving the party of the right to a fair trial. A judge may recuse himself or herself to avoid the appearance of bias. If, during the VOIR DIRE, a prospective juror indicates bias toward either party in a lawsuit, the juror can be successfully challenged for cause and denied a seat on the jury. BICAMERAL The division of a legislative or judicial body into two components or chambers. The CONGRESS OF THE UNITED STATES is a bicameral legislature, since it is divided into two houses, the Senate and the House of Representatives. v BICKEL, ALEXANDER MORDECAI Alexander Mordecai Bickel was a noted legal scholar, law professor, and essayist who wrote extensively about CONSTITUTIONAL LAW issues and the U.S. Supreme Court. Bickel was born December 17, 1924, in Bucharest, Romania, and imm igrated to the United States with his parents in 1939. He attended the City College of New York, gra- duating Phi Beta Kappa in 1947, and Harvard Law School, where he served as editor of the Harvard Law Review and graduated summa cum laude in 1949. Following law school, Bickel clerked for Judge Calvert Magruder of the U.S. Court of Appeals in Boston. From 1950 to 1952 he was a STATE DEPARTMENT law officer in Frankfurt, Germany, and he was a member of the European Defense Community Observer Dele- gation in Paris. He returned to the United States to become law clerk to Justice FELIX FRANKFURTER during the U.S. Supreme Court’s 1952–53 term. Bickel assisted Justice Frankfurter in the Court’s consideration of the landmark desegre- gation decision in BROWN V. BOARD OF EDUCATION, Alexander Mordecai Bickel 1924–1974 ▼▼ ▼▼ 19251925 19751975 19501950 ❖ ❖ ◆ ◆ ◆◆ ◆ ◆ ◆ ◆ 1939–45 World War II 1950–53 Korean War 1961–73 Vietnam War 1924 Born, Bucharest, Romania 1939 Immigrated to U.S. with parents 1949 Graduated summa cum laude from Harvard Law School 1952–53 Clerked for U.S. Supreme Court Justice Felix Frankfurter 1956 Joined Yale Law School faculty 1957 Edited The Unpublished Opinions of Mr. Justice Brandeis 1963 The Least Dangerous Branch: The Supreme Court at the Bar of Politics published 1966 Named Chancellor Kent Professor of Law and Legal History 1971 Argued Pentagon Papers case before U.S. Supreme Court 1974 Named Sterling Professor of Law; died, New Haven, Conn. 1975 Morality of Consent published posthumously [THE JUDICIARY IS] THE LEAST DANGEROUS BRANCH OF OUR GOVERNMENT . —ALEXANDER BICKEL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BICKEL, ALEXANDER MORDECAI 25 349 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). The plaintiffs in Brown challenged the assignment of black and white students to separate public schools. The Court held that such racial segregation in public education was unconstitutional. During his clerkship with Frankfurter, Bickel studied the FOURTEENTH AMENDMENT extensively and concluded that the Constitution did provide that congressional or JUDICIAL ACTION could be used to abolish school segregation. After completing his clerkship with Justice Frankfurter, Bickel joined the faculty of Yale Law School, in 1956. He was named Chancellor Kent Professor of Law and LEGAL HISTORY in 1966, and Sterling Professor of Law in 1974, the year of his death. Bickel wrote a number of influential books and essays. In addition to longer works, he published more than a hundred articles in newspapers and magazines. He edited The Unpublished Opinions of Mr. Justice Brandeis, a volume of eleven Brandeis draft opinions concerning the issue of judicial restraint, a major theme in much of Bickel’s later writings. In his most influential work, The Least Danger- ous Branch: The Supreme Court at the Bar of Politics (1963), Bickel argued that courts should make decisions that are grounded in history and in the values fo und in the Constitution, and should not make decisions that cannot gain public support. He believed that judges should exercise care to avoid deciding constitutional issues if other grounds for a RULING are available, such as grounds for refusing to hear the case or grounds for using doctrines like statutory construction to decide the case. In The Supreme Court and the Idea of Progress (1970), another work advocating judi- cial restraint, Bickel criticized the activism of the WARREN COURT in tackling social issues. He noted that “history has little tolerance for [the Court’s] reasonable judgments that turn out to be wrong.” Bickel also argued for judicial restraint in the so-called Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971), in which he represented the New York Times before the Supreme Court. In Pentagon Papers, the government sought to prevent the New York Times and the Washington Post from publishing the contents of a classified study titled History of U.S. Decision-Making Process on Viet Nam Policy. Rather than arguing that PRIOR RESTRAINT of the publication of the classified material was unconstitutional, Bickel instead maintained that the government had been unable to rebut the heavy presumption against prior restraint and that such rest raint was to be found in congressional legislation rather than in asser- tions of governmental power. The Court ultimately rejected the government’s claim that the papers should not be published, and several of the justices adopted Bickel’s analysis in their opinions. A recognized expert on the SUPREME COURT OF THE UNITED STATES , Bickel served as a member of the Study Group on the Caseload of the Supreme Court. In 1973 he authored The Caseload of the Supreme Court—and What, If Anything, to Do about It, in which he concluded that the Court’s caseload should be reduced. Easing the Court’s workload is critical, he argued, to ensure careful deliberation of impor- tant issues and to avoid transforming the Court “into a high-speed, high-volume enterprise” that would “mock the idea of justice and mock the substantive reforms of a generation.” FURTHER READINGS Bickel, Alexander M. 1973. The Caseload of the Supreme Court and What, If Anything, to Do about It. Washington, D.C.: American Enterprise Institute for Public Policy Research. ———. 1963. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis: Dobbs-Merrill. ———. 1970. The Supreme Court and the Idea of Progress. New York: Harper & Row. Congressional Quarterly. 1989. Guide to the U.S. Supreme Court. 2d ed. Washington, D.C.: Congressional Quar- terly. 1990. Ward, Kenneth. 1996. “Alexander Bickel’s Theory of Judicial Review Reconsidered.” Arizona State Law Journal 28 (fall): 893–926. v BIDDLE, FRANCIS BEVERLY Francis Beverly Biddle achieved prominence as a jurist. Biddle was born May 9, 1886, in Paris, France. He was a graduate of Ha rvard, class of 1909, and earned a b achel or of laws degree from h is al ma mater in 1911. From 1911 to 191 2, he was private secretary to Oliver Wendell Holmes Jr., an emi- nent U. S. Supreme Court justice. In 1912 Biddle was admitted to the Penn- sylvania bar and from 1915 to 1939, practiced with two successful Philadelphia law firms— Biddle, Paul and Jayne, and Barnes, Biddle and Myers—specializing in corporation law. TO BLAME THE PUBLIC IS BUT THE EXCUSE OF THOSE WHO HAVE BEEN UNABLE TO INFLUENCE THE PUBLIC . —FRANCIS BIDDLE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 26 BIDDLE, FRANCIS BEVERLY Biddle served as special assistant U.S. attorney from 1922 to 1926 and as chairman of the NATIONAL LABOR RELATIONS BOARD from 1934 to 1935. In 1939, he presided for one year as a justice of the U.S. CIRCUIT COURT of Appeals. Biddle was solicitor general of the United States in 1940, and the following year he became U.S. attorney general for a three-year period. From 1945 to 1946, he presided as a U.S. judge at the NUREMBERG TRIALS of Nazi war criminals. He died October 4, 1968, in Hyannis, Massa- chusetts. CROSS REFERENCE Nuremberg Trials. BIFURCATED TRIAL One judicial proceeding that is divided into two stages in which different issues are addressed separately by the court. A common example of a bifurcated trial is one in which the question of liability in a PERSONAL INJURY case is tried separately from and prior to a trial on the amount of damage s to be awarded if liability is f ound . A bifurcated trial in such a case is advantageous because if the DEFENDANT is not found liable, there is no need to spend the money or time in the presentation of proof and WITNESSES on the issue of damages. In CRIMINAL PROCEDURE, a bifurcated trial is useful where the issues of sanity and guilt or guilt and punishment must be decided. BIGAMY See POLYGAMY. v BIGELOW, MELVILLE MADISON Melville Madison Bigelow achieved prominence as an author, legal historian, and a founder of Boston University Law School. Bigelow was born August 2, 1846, in Eaton Rapids, Michigan. He was educated at the University of Michigan, where he earned a bachelor of arts degree in 1866, a bachelor of laws degree in 1868, and a master of arts degree in 1871. He also received a master of arts degree and a doctor of philosophy degree from Harvard in 1879. Two doctor of laws degrees were bestowed upon him, from Northwestern Francis Beverly Biddle 1886–1968 ❖ ❖ 1886 Born, Paris, France 1914–18 World War I 1968 Died, Hyannis, Mass. ◆ ◆ 1915 Formed law firm of Biddle, Paul and Jayne 1939–45 World War II 1945–46 Presided as U.S. judge at the Nuremberg war crimes trials 1950–53 Korean War 1950-53 Served as chair of Americans for Democratic Action 1961 Justice Holmes, Natural Law, and the Supreme Court published 1961–73 Vietnam War ▼▼ ▼▼ 19001900 18751875 19251925 19501950 19751975 ◆ 1934–35 Served as chair of the National Labor Relations Board 1941 Confirmed as U.S. attorney general Francis Beverly Biddle. LIBRARY OF CONGRESS GOVERNMENT FROM THE TOP IS RIGHT ONLY WHEN IT PROCEEDS FROM BELOW , WITH SUPPORT ALL THE WAY UP . —MELVILLE BIGELOW GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BIGELOW, MELVILLE MADISON 27 . States EVERY LAW IS AN INFRACTION OF LIBERTY . —JEREMY BENTHAM GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 22 BEQUEATH purchased Alaska from Russia in 1867, it assumed the right of control. faculty of Yale Law School, in 1956. He was named Chancellor Kent Professor of Law and LEGAL HISTORY in 1966, and Sterling Professor of Law in 1974, the year of his death. Bickel wrote a number of. College of Law Review. Sarna, Jonathan D. “The Spectrum of Jewish Leadership in Ante-Bellum America.” 19 82. Journal of American Ethnic History 1, no. 2. Schene, Michael G. 19 82. The Daring Escape of