Gale Encyclopedia Of American Law 3Rd Edition Volume 6 P45 ppsx

It 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, co nstables, 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 outlast ed 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 CLAUSE of 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 EYEWITNESS or 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 throu gh “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 AMENDMENT proportionality analysis. Chapter 20 of the Great Charter prohibited the monarch from imposing a fine “unless according to the me asure 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 428 MAGNA CARTA counsel 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 the STAMP 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 pre cedent 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 includ ed 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, compl ained 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 contras t between tyrannical governmen t unfettered by anything but the personal whims of its poli tical 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’s DOWER interest 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 exte nsion of this principle was captured by the EQUAL PROTECTION CLAUSE of the FOURTEENTH 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, and ILLEGITIMACY. 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MAGNA CARTA 429 Wells, 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 distribute d in commerce and actually used for personal, family, or household purposes. The act provides a federal CAUSE OF AC TION 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 /busi ness/ad v/bus01.s htm; 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 Protecti on. 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 therecording 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 chie f 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 grou nds, 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 under GRAND JURY investigation, was sufficient. In Vreeken the court held that a letter stating that the plaintiffs were subjects of a grand jury investigation for tax FRAUD, and that the mail cover was necessary GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 430 MAGNUSON-MOSS WARRANTY ACT to 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 the FOURTH 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 a PEN 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 a1909 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 charge VOUCHERS to 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MAIL FRAUD 431 fraud 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 req uire only that the mails be in fact used as a resu lt 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 Congr ess 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). v MAINE, 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 of CIVIL LAW in 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. Ancien t 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 OF NATURE, NOTHING MOVES ON THIS WORLD WHICH IS NOT GREEK IN ITS ORIGIN . —HENRY MAINE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 432 MAINE, HENRY JAMES SUMNER desire 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 pas t 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 leg al 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 separatio n 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 United 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 1800 1850 1875 1900 1825 ❖ 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MAINTENANCE 433 an 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 § 30-2-51 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 co urt 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 perso n as if married, but has not remarried because he or she wants to continue to receive maintenance payments. Ma intenance 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. v MAITLAND, 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 gra duated 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 434 MAITLAND, FREDERIC WILLIAM SELDEN SOCIETY, an association devoted to the preservation and analysis of Old English legal history. Maitland contributed many introduc- tions to society publications, which mainly consisted of reprints of primary legal docu- ments. Finally, Maitl and 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 underlyin g 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 legal ly 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. INFANTS reach 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 1925 1900 1875 ❖ 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 . —FREDERIC MAITLAND GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MALA FIDES 435 MALA 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 statu tory crimes are classified as such. Examples of mala prohibita include public intoxication and carrying a concealed weapon. v MALCOLM X Malcolm X was a NATION OF ISLAM minister 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-S abann 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 em bracing 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 f ather, 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 statu s 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 ▼▼ ▼▼ 19251925 19751975 19501950 ❖ 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) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 436 MALA IN SE In 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-sister ELLA 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 nam ed West Indian Archie, Malcolm returned to Boston, where he became involved in a BURGLARY ring 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 enterin g, to which he pleaded guilty at tri al. 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 America n. 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 t he 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 mainstream CIVIL 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 as MARTIN LUTHER KING JR. Malcolm X. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MALCOLM X 437 . The Forms of Action published 1908 Constitutional History of England published THE HISTORY OF LAW MUST BE A HISTORY OF IDEAS . —FREDERIC MAITLAND GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MALA. Ancient Law published 1 861 65 U.S. Civil War 1 863 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 ◆ 1 869 –78. a Henry Maine. LIBRARY OF CONGRESS EXCEPT THE BLIND FORCES OF NATURE, NOTHING MOVES ON THIS WORLD WHICH IS NOT GREEK IN ITS ORIGIN . —HENRY MAINE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 432