Generally there are two types of involuntary manslaughter: (1) criminal-negligence man- slaughter; and (2) unlawful-act manslaughter. The first occurs when death results from a high degree of NEGLIGENCE or recklessness, and the second occurs when death is caused by one who commits or attempts to commit an unlaw ful act, usually a misdemeanor. Although all jurisdictions punish involun- tary manslaughter, the statutes vary somewhat. In some states, the criminal negligence type of manslaughter is described as gross negligence or culpable negligence. Others divide the entire offense of manslaughter into degrees, with voluntary manslaughter constituting a more serious offense and carrying a heavier penalty than involuntary manslaughter. Many statutes do not define the offense or define it vaguely in common-law terms. There are, however, a small number of modern statutes that are more specific. Under one such statute, the offense is defined as the commission of a lawful act without proper caution or requisite skill, in which one unguardedly or undesignedly kills another or the commission of an unlawful act that is not felonious or tends to inflict great bodily harm. Criminally Negligent Manslaughter A homi- cide resulting from the taking of an unreason- able and high degree of risk is usually considered criminally negligent manslaughter. Jurisdictions are divided on the question of whether the defendant must be aware of t he risk. Modern criminal codes g enerally require a conscious- ness of risk, although, under some codes, the absence of t his element makes the offense a less serious homicide. There are numerous cases in which an omission to act or a failure to perform a duty constitutes criminally negligent manslaughter. The existence of a duty is essential. Since the law does not recognize that an ordinary person has a duty to aid or rescue another in distress, an ensuing death from failure to act would not be manslaughter. On the other hand, an omission in which one has a duty, such as the failure of a lifeguard to attempt to save a drowning person, might constitute the offense. When the failure to act is reckless or negligent, and not intentional, it i s usually manslaughter. If the omission is intentional and death is likely or substantially likely to result, the offense might be murder. When an intent to kill, recklessness, and negligence are present, no offense is committed. In many jurisdictions, death that results from the operation of a vehicle in a criminally negligent manner is punishable as a separate offense. Usually it is considered a less severe crime than involuntary manslaughter. Although criminal negligence is an element, it is generally not the same degree of negligence as that which is required for involuntary manslaughter. For example, some vehicular homicide statutes have been construed to require only ordinary negli- gence while, in a majority of jurisdictions, a greater degree of negligence is required for involuntary manslaughter. Unlawful-Act Manslaughter In many states, unlawful-act manslaughter is committed when death results from an act that is likely to cause death or serious physical harm to another person. In a majority of jurisdictions, however, the offense is committed when death occurs during the commission or attempted commis- sion of a misdemeanor. In some states, a distinction is made between conduct that is malum in se, bad in itself and conduct that is malum prohi bitum, bad because prohibited by law. In these states, the act that causes the death must be malum in se and a felony in order for the offense to constitute manslaughter. If the act is malum prohibitum, there is no manslaughter unless it was foreseeable that death would be a direct result of the act. In other states that similarly divide the offense, the crime is committed even though the act was malum prohibitum and a misdemeanor, especially if the unlawful act was in violation of a statute that was intended to prevent injury to other persons. Punishment The penalty for manslaughter is imprisonment. The precise term of years depends upon the applicable statute. Usually the sentence that is imposed for voluntary manslaughter is greater than that given for involuntary manslaughter. In most states, a more serious penalty is imposed for criminally negligent manslaughter than for unlawful-act manslaughte r. FURTHER READINGS Milgate, Deborah E. 1998. “The Flame Flickers, but Burns On: Modern Judicial Application of the Ancient Heat of Passion Defense.” Rutgers Law Review 51 (fall). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 458 MANSLAUGHTER Miller, Emily L. 2001. “(Wo)manslaughter: Voluntary Man- slaughter, Gender, and the Model Penal Code.” Emory Law Journal 50 (spring). Miller, Henry. 1975. Human Error: The Road to Disaster. Chatsworth, Calif.: Canyon. CROSS REFERENCE Deadly Force. MANUFACTURES Items of trade that have been transformed from raw materials, either by labor, art, skill, or machine into finished articles that have new forms, qualities, or properties. For example, a blouse that is made of raw silk would be considered a manufacture, whereas fresh vegetables sold on a farm would not. Whether particular products are within the definition of manufactures becomes significant with respect to taxes and other regulations imposed upon manufacturers. MAPP V. OHIO A landmark Supreme Court decision, Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), established the rule that evidence that has been obtained by an illegal SEARCH AND SEIZURE cannot be used to prove the guilt of a defendant at a state criminal trial. Police officers went to the home of D ollree Mapp in an attempt to find someone who was wanted for questioning about a recent bombing. When they deman ded entrance t o t he h ouse, M app called her a ttorney and refused t o allow the p olice to enter without a SEARCH WARRANT. Subsequently thepoliceofficersbecameroughwithMappand handcuffed her. Upon a s earch o f the house, they found obscene books, pictures, and photographs for t he possession of which the defendant was subsequently prosecuted and convicted. The defendant brought an unsuccessful action challenging the constitutionality of the search. An appeal was made to the Ohio Supreme Court, which affirmed the judgment. The defendant appealed to the U.S. Supreme Court, which reversed the decision on the ground that evidence obtained by an unconsti- tutional seizure was inadmissible. The Court was extremely critical of the actions of the police and held t hat the defen- dant’s privacy had been unconstitutionally invad- ed. The police tactics were deemed comparable to a confession forced out of a fearful prisoner. The Court ruled that to compel respect for the constitutional right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, it was necessary to exclude illegally obtained evidence from the consideration of the trial court. The Supreme Court had ruled, as early as 1886, that any illegally obtained evidence could not be introduced in federal courts. This principle, known as the EXCLUSIONARY RULE, was initially applied to state criminal prosecutions in Mapp. The Court made note of the fact that, in other instances, various states had attempted to prevent illegal police searches by other means, but the exclusionary rule is, in the opinion of the Supreme Court, the only effective means of protecting citizens from illegal searches con- ducted by government agents. CROSS REFERENCE Criminal Procedure. MARBURY V. MADISON Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), established the power of JUDICIAL REVIEW in the U.S. Supreme Court. This power, which was later extended to all federal courts, authorizes the federal judiciary to review laws enacted by Congress and the president and to invalidate those that violate the Constitution. The power of judicial review also permits federal courts to compel government officials to take action in accordance with constitutional principles, as the Supreme Court did when it ordered President RICHARD M. NIXON to release tapes he had made of conversations at the White House regarding a series of scandals that began with the BURGLARY of the Democratic party’s national headquarters in the Watergate office complex in June 1972. Finally, judicial review empowers federal courts to decide legal issues raised by state constitutions, statutes, and common-law decisions that touch upon a federal constitutional provision. Judicial review is also routinely exercised by state courts over state and federal constitutional questions. Unlike the federal power of judicial review, which derives from Marbury, the state power of judicial review usually derives from an express provision in a state constitution. Marbury was an outgrowth of political struggles between the Federalist and Republican parties during the late eighteenth and early GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MARBURY V. MADISON 459 nineteenth centuries in the United States. These struggles began as a dispute between the Federalists and Anti-Federalists over the ratifi- cation of the Constitution. The Federalists, including ALEXANDER HAMIL- TON and JOHN JAY, supported ratification of the Constitution as a means of creating a stronger national government that would replace the feeble central government formed under the ARTICLES OF CONFEDERATION. The Federalists believed that a strong national government was necessary to prom ote economic growth and geographic expansion and to protect U.S. citizens from internal and external aggression. The Anti-Federalists, including GEORGE MASON and PATRICK HENRY, opposed ratification because they feared it would create a despotic national government that would vitiate state sovereignty and be unresponsive to local interests. After the Constitution was ratified by the states, many disgruntled Anti-Federalists joined the REPUBLICAN PARTY. Like their Anti-Federalist predecessors, the Republicans worked to curtail further growth of the national government, drawing their constituency from farmers and mechanics. The Federalists, meanwhile, sought an increased role for the national government, including the establishment of a federal bank, and drew their constituency from wealthy property owners and mercantilists. During the administration of JOHN ADAMS (1797–1801), Federalists controlled the execu- tive and legislative branches of the federal government and permeated the federal judiciary as well. However, the political tides turned against the Federalists during the elections of 1800, when the Republicans wrested control of both houses of Congress and THOMAS JEFFERSON, their party leader, was elected president. Deter- mined not to lose all its influence over the national government, the lame-duck Federalist Congress passed legislation that created a host of new federal judgeships and called for the appointment of 42 justices of the peace in the District of Columbia. In the haste of filling these vacancies during the waning hours of his last night in office, President Adams neglec ted to deliver the com- missions (warrants issued by the government authorizing a person to perform certain acts) of several appointees. One of the so-called midnight appointees who did not receive his commission was William Marbury. After Jefferson ordered Secretary of State JAMES MADISON to withhold Marbury’s commission, Marbury petitioned the Supreme Court for a writ of MANDAMUS (a court order requiring an official to perform his duties) to compel Madison to deliver the commission. The case was heard before Chief Justice JOHN MARSHALL and four associate justices. Marshall was one of the “midnight judges” President Adams had appointed to the federal bench during his last few months in office. Prior to his appointment to the Supreme Court, Marshall had served as secretary of state for the Adams administration. Ironically, it was Marshall who, serving in a dual capacity as the secretary of state and chief justice, had failed to deliver the commission to Marbury. None of these facts presented a sufficient conflict of interest for Marshall to disqualify himself from hearing the d ispute. Marshall’s opinion, written for a unanimous Court, was divided into five parts, the first three being the least controversial. First, the Court The show-cause order served on James Madison was damaged in the Capital fire of 1898. NATIONAL ARCHIVES AND RECORDS ADMINIS- TRATION GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 460 MARBURY V. MADISON held that Marbury had a legal right to serve as JUSTICE OF THE PEACE and was entitled to receive the commission memori alizing that right. Mar- bury had been nominated for the office by the president and confirmed by the Senate, in accordance with the procedures set forth in the Constitution. When President Adams signed the commission and affixed the seal of the United States to it, the appointment was “complet[e].” Delivery of the commission was a mere “con- venience” that did not interfere with Marbury’s legal right. Second, the Court ruled it was a “plain violation” of this right for Madison to withhold the commission. When a commission has been signed and sealed by the EXECUTIVE BRANCH following a no minee’s appointment and confir- mation, the secretary of state, Marshall said, has a “duty” to “conform to the law” and deliver it as part of his “ministerial” responsibilities . Third, the Marshall opinion said a writ of mandamus was the proper remedy because mandamus is a “command” directing “any person, corporation or inferior court of judica- ture to do some particular thing which appertains to their office and duty.” Marshall’s opinion next addressed the question of whether the Supreme Court had the power to issue Marbury the writ. This question turned on the Court’s jurisdiction. Article III of the U.S. Constitution confers upon the Supreme Court two types of jurisdiction: original and appellate. Original jurisdiction gives courts the power to hear lawsuits from their inception, when a complaint or petition is “originally” filed with the tribunal. Appellate jurisdiction gives courts the power to review decisions that were made by lower courts and have been “appealed” in order to reverse a purported error. Under Article III, the Supreme Court has original jurisdiction over politically sensitive disputes such as those “affecting ambassadors” or those in which one of the 50 states is named as a party. In all other cases, the Supreme Court retains appellate jurisdiction. In petitioning the Supreme Court directly for a writ of mandamus, Marbury was asking the Court to invoke its original jurisdiction pursuant to section 13 of the JUDICIARY ACT OF 1789, which authorized all federal courts to issue such writs “in cases warranted by the principles and usages of law.” Yet Marbury was not an ambassador or state government entitled to have the Supreme Court hear the case under its original jurisdiction. As a consequence, Marshall opined that section 13 impermissibly attempted to enlarge the Supreme Court’s original jurisdiction to include disputes such as those presented by Marbury v. Madison,in contravention of the constitutional limitations placed on that jurisdiction by Article III. However, Marshall suggest ed that merely because a piece of legislation violates a consti- tutional principle does not necessarily mean that the legislation is unenforceable. “[W]hether an act repugnant to the constitution can become law of the land,” Marshall noted, “is a question deeply interesting to the United States.” Observing that the Constitution ex- pressly delegates and limits the powers of Congress, Marshall asked, “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” Marshall argued that the “distinction be- tween a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.” Marshall conti nued: It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. For Marshall, the idea that an unconstitu- tional act of legislature could “bind the courts and oblige them to give it effect ” was “an absurdity too gross to be insisted on.” Thus, Marshall concluded that congressional legislation contrary to the federal Constitution is null and void and cannot be enforc ed by a court of law. Having ruled that the Judiciary Act of 1789 was invalid and unenforceable, Marshall next asked whether the judiciary was the appropriate GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MARBURY V. MADISON 461 branch to be vested with authority to overturn unconstitutional legislation. Although it is commonly accepted in the early 2000s that the power to nullify state and federal statutes falls within the purview of the judicial branch of government, the Constitution does not specifi- cally delegat e this power to any one branch. Under the explicit provisions of the Constitu- tion, then, the executive and legislative branches might have argued in 1803 that they were no less entitled than the judicial branch to be entrusted with the power of judicial review. The Court rejected this idea: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and inter- pret that rule. If two laws conflict with each other, the courts must decide on the opera- tion of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitu- tion, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. Marshall was arguing that it was the historical role of courts to settle legal disputes by interpreting and applying the law. In some instances, the applicable statutory or COMMON LAW has conflicted with other laws, Marshall said, and it has been the obligation of courts to resolve “the operation of each.” Earlier in his opinion, the chief justice had described the federal Constitution as a special kind of la w that was “paramount” to all other laws in the United States. It then followed, the chief justice reasoned, that courts carried the responsibility to interpret and apply the Con- stitution’s provisions. This responsibility inevita- bly entailed review of cases where laws passed by the legislative and executive branches conflicted with the strictures of the Constitution. By resolving such conflicts, Marshall maintained, courts were doing nothing more than fulfilling their traditional role of settling legal disputes. Marshall also questioned whether members of the legislative and executive branches could objectively evaluate the constitutionality of legislation they passed. It is sometimes said that a diner, not the cook, is the best judge of a meal. Following the same reasoning, Marshall hinted that the legislative and executive branches could not impartially review legislation that they had helped prepare or enact. It is far from clear, for example, whether the Federalists in Congress who supported the Judiciary Act of 1789 could have put aside their partisan views long enough to exercise the power of judicial review over the Marbury dispute in a fair and neutral manner. Chief Justice Marshall’s opinion in Marbury has been the object of much criticism. Consti- tutional historians claim that Marbury repre- sents a paradigm of judicial activism, which is marked by judges who decide cases based on issues not argued before them. This criticism seems to be particularly apt when applied to Marbury because, as constitutional scholar Leonard W. Levy has pointed out, “[In] no other case in our constitutional history has the Court held unconstitutional an act of Congress whose constitutionality was not at issue.” Neither Marbury nor Madison had attacked the constitutionality of the Judiciary Act. Against this criticism, historians have weighed the dilemma confronting Chief Justice Marshall. As a Federalist appointed to the Supreme Court, Marshall attempt ed to facilitate the growth of the national government through his judicial opinions. To achieve this end, Marshall aspired to establish the Constitution as the supreme law of the land, under which the executive, legislative, and judicial branches of both state and federal governments would be subordinate. He also hoped to establish the Supreme Court as the ultimate arbiter of the Constitution, providing the final word on the meaning and application of any constitu- tional principles. Marshall realized that none of these aspira- tions would be realized unless the Supreme Court gained respect and acceptance from Congress and the president. After all, the Supreme Court depended on the executive branch to enforce its decisions. President ANDREW JACKSON once under- scored this point when he exclaimed, “John Marshall has made his decision [in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832)], now let him enforce it!” (as quoted in Coleman v. United States Bureau of Indian Affairs, 715 F.2d 1156 [7th Cir. 1983]). Marshall also needed to curry the favor of Congress, which possessed the power to limit the appellate jurisdiction of the Supreme Court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 462 MARBURY V. MADISON under Article III, Section 2, of the Constitution. In addition, Congress possessed the power to impeach the Supreme Court justices, a power that it unsuccessfully exercised in 1805 when the Senate acquitted Federalist justice SAMUEL CHASE of wrongdoing. Marbury was the powder keg threatening to upset the delicate relationships between the coordinate branches of the federal government. Marshall understood that on the one hand, if the Court ordered Madison to deliver the commission to Marbury, the Jefferson administration might ignore the order and tarnish the Court’sreputa- tion by exposing it as an impotent institution. On the other hand, if the Court ruled in favor of Madison, Marbury and the Federalists who had appointed and confirmed him would suffer a humiliating defeat. In either instance, the execu- tive branch would be perceived as preeminent. The chief justice’s solution to this dilemma was what one constitutional scholar has called a “masterwork of indirection, a brilliant example of Marshall’s capacity to sidestep danger while seeming to court it, to advance in one direction while his opponents are looking in another” (McCloskey 1960, 40). Marshall’s opinion in Marbury denied a Lilliputian power to the Supreme Court with one hand, while grabbing a titanic power for the judicial branch with the other. By rejecting Marbury’s claim on the ground that the Supreme Court did not have original jurisdiction to issue the writ of mandamus under the Constitution, Marshall establi shed the power of judicial review in the nation’s highest court. While appeasing the Jeffersonian Republicans with a victory over President Adams in the battle over the president’smidnight appointments, Marshall introduced the idea that the federal Constitution is the fundamental law underlying both the state and federal governments. In striking down a section of the Federalist-supported Judiciary Act, Marshall identified the Supreme Court as the authorita- tive interpreter of the Constitution. Each of these accomplishments set the stage for a gradual accretion of power, respect, and prestige in the federal judiciary. As the power of the federal judiciary increased, so did the power of the entire federal government, something that proved important in President Abraham Lincoln’s efforts to preserve the Union during the Civil War. FURTHER READINGS Curtis, Kent. 2003. “Judicial Review and Populism.” Wake Forest Law Review 38 (summer). Levy, Leonard W. 1988. Original Intent and the Framers’ Constitution. New York: Macmillan. McCloskey, Robert G. 2004. The American Supreme Court. Chicago: Univ. of Chicago Press. Nelson, William E. 2000. Marbury v. Madison: The Origins and Legacy of Judicial Review. Lawrence: Univ. Press of Kansas. Randolph, Ryan. 2004. Marbury v. Madison: The New Supreme Court Gets More Power. New York: Rosen. Stites, Frances. N. 1997. John Marshall: Defender of the Constitution. Reading, MA: Addison-Wesley. Wellington, Harry H. 1992. Interpreting the Constitution: The Supreme Court and the Process of Adjudication. New Haven, CT: Yale. Wills, Mary, ed. 1982. The Federalist Papers, by Alexander Hamilton, James Madison and John Jay. No. 78. New York: Bantam. Wolfe, Christopher. 1997. Judicial Activism: Bulwark of Freedom or Precarious Security. Lanham, MD: Rowman & Littlefield. Yoo, John C., and Saikrishna B. Prakash. 2003. “The Origins of Judicial Review.” Univ. of Chicago Law Review 70 (summer). Available online at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=426860; website home page: http://papers.ssrn.com (August 12, 2009). CROSS REFERENCES Congress of the United States; Constitution of the United States; Judicial Review; “Marbury v. Madison” (Appendix, Primary Document); Separation of Powers; Supreme Court of the United States. MARGIN The edge or border; the edge of a body of water where it meets the land. As applied to a boundary line of land, the margin of a river, creek, or other watercourse means the center of the stream. But in the case of a lake, bay, or natural pond, the margin means the line where land and water meet. In finance, the difference between market value of loan collateral and face value of loan. A sum of money, or its equivalent, placed in the hands of a BROKER by the principal or person on whose account a purchase or sale of SECURITIES is to be made, as a security to the former against losses to which he or she may be exposed by subsequent fluctuations in the market value of the stock. The amount paid by the customer when he uses a broker’s credit to buy a security. In commercial transactions the difference between the purchase price paid by an interme- diary or retailer and the selling price, or di fference between price received by manufacturer for its goods and costs to produce. Also called gross profit margin. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MARGIN 463 MARGIN CALL A demand by a BROKER that an investor who has purchased SECURITIES using credit extended by the broker (on margin) pay additional cash into his or her brokerage account to reduce the amount of debt owed. A broker makes a margin call when the stocks in the account of the client have fallen below a particular percentage of their market price at the time of purchase, thereby increasing the outstanding debt and the broker’s liability should the client become unable to pay. This process is also known as remargining. A broker might also make a margin call when a client desires to make additional purchases of stock and securities. v MARIS, ALBERT BRANSON Albert Branson Maris, a federal judge for 50 yea rs, brought his quiet, scholarl y leadership to the 1947 and 1948 recodifications of the U.S. Criminal and Judicial Codes. Because of his ongoing commit- ment to the revision and modernization of civil, criminal, BANKRUPTCY, and judicial codes, Maris is often called the father of modernized judicial procedure in the United States. He not only helped to shape federal JURISPRUDENCE in this country but also was instrumental in the development of the laws and judicial systems of Guam and the U.S. Virgin Islands. Maris was born in Philadelphia on Decem- ber 19, 1893. Descendants of Quaker colonists, Maris and his family were also members of the Society of Friends. Maris studied at the Friends Select School, and later the Westtown School, attended by his father and grandfather. Mindful of his responsibility to his widowed mother and younger siblings, Maris made no plans to attend college after graduating from Westtown. He enrolled in a business course offered by a Scranton, Pennsylvania, correspon- dence school and entered the workforce as a clerk for an insurance company. He then took night courses at Temple University, passed the college entrance exam, and went on to study law. Maris received his law degree from Temple University Law School—and married Edith Robinson on the same day—in 1917. The esca- lation of WORLD WAR I delayed the PRACTICE OF LAW for Maris. He served in an Army artillery unit as an enlisted man and later became an officer. After the war, Maris entered private practice near Philadelphia. He also returned to school and earned a diploma from Drexel University Engineering School in 1926. He served as auditor of the borough of Lansdowne, Pennsyl- vania, from 1928 to 1934 and as councilman of the borough of Yeadon, Pennsylvania, from 1935 to 1936. After 18 years of private practice and community service, Maris was appointed U.S. district judge for the Eastern District of Pennsylvania by President FRANKLIN D. ROOSEVELT on June 22, 1936. Two years later, he was elevated to the U.S. Court of Appeals for the Third Circuit, which handles appeals of federal cases from Pennsylvania, New Jersey, Delaware, and the Virgin Islands. Maris’s decisions were rarely appealed and almost never overturned. Minersville School District v. Gobitis, 108 F.2d 683 (3d Cir. 1939), was among the few cases in which his ruling was challenged. In 1938, the children of William Gobitis and Lily Gobitis were expelled from ▼▼ ▼▼ Albert Branson Maris 1893–1989 19001900 19501950 19751975 19251925 ❖ 1893 Born, Philadelphia, Pa. ◆ 1914–18 World War I 1917 Earned J.S. from Temple University Law School; joined Army 1928–34 Served as auditor of Lansdowne, Pa. ◆ 1936 Appointed U.S district judge for the Eastern District of Pa. 1939 Declared mandatory flag-salute rule unconstitutional in Minersville School District v. Gobitis (overruled by Supreme Ct. in 1940) 1939–45 World War II 1943 Supreme Court reversed itself and affirmed Maris's Gobitis ruling in West Virginia Bd. of Ed v. Barnette 1961–73 Vietnam War ❖ 1989 Died, Lansdale, Pa. ◆ 1975 Served as special master in United States v. Maine ◆ 1967 Stepped down from Judicial Code Committee; served as special master in Wisconsin v. Illinois 1958 Took senior (semi-retired) status from Third Circuit 1950–53 Korean War 1947–48 Spearheaded recodification of U.S. Criminal and Judicial codes 1942–62 Served on U.S Emergency Court of Appeals 1938–58 Served on U.S Court of Appeals for the Third Circuit ◆ ◆ ◆ TO PERMIT PUBLIC OFFICERS TO DETERMINE WHETHER THE VIEWS OF INDIVIDUALS SINCERELY HELD AND THEIR ACTS SINCERELY UNDERTAKEN ON RELIGIOUS GROUNDS ARE IN FACT BASED ON CONVICTION RELIGIOUS IN CHARACTER WOULD BE TO SOUND THE DEATH KNELL OF RELIGIOUS LIBERTY . —ALBERT MARIS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 464 MARGIN CALL school for refusing, on religious grounds, to recite the Pledge of Allegiance. The Gobitises filed a lawsuit in federal court, claiming that local regulations enforcing recitation of the pledge violated their FIRST AME NDMENT rights. Maris declared the school district’s regulations unconstitutional. But when the case was appealed to the Supreme Court, the justices overruled Maris by an 8–1 vote. An opportunity to challenge the Gobitis ruling eventually made its way through the courts when two sisters faced a similar issue in West Virginia (West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 [1943]). When that case reached the Supreme Court, two justices who had participated in the Gobitis decision were now retired. With two new justices, the High Court reversed itself, ruling as Maris had in the Gobitis case. In addition to his Third Circuit duties, Maris served on the TEMPORARY EMERGENCY COURT OF APPEALS during WORLD WAR II and the postwar years. (This court decided cases throughout the United States that arose from temporary legislation enacted by Congress to facilitate the war effort.) Maris served the temporary court as needed for the next twenty years and eventually became its chief judge. His work on this court broadened his interest in the crafting of legislation and the CODIFICATION of laws. This interest led to an appointment as chairman of the U.S. Judicial Conference Committee on Revision of the Laws in 1944. His committee spearheaded the much- needed recodifications of the U.S. Criminal and Judicial Codes in 1947 and 1948. As committee chairman, he oversaw the ongoing revision and modernization of civil, criminal, bankruptcy, and appellate rules of procedure until 1967, when he stepped down. Even the modest Maris admitted that the adoption of his committee’s work in 1947 and 1948 was a milestone in the improvement of JUDICIAL ADMINISTRATION . In the early 1950s Maris began to cultivate an interest in INTERNATIONAL LAW. Shortly after World War II, the U.S. INTERIOR DEPARTMENT asked Maris to study the legal and judicial systems of the islands and trust territories of the South Pacific. He did, and he made recommen- dations that were well received at home and abroad. Throughout the 1950s, he worked tirelessly with the Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and American Samoa to draft and enact legislation creating and revising their court systems and procedures. In conjunction with his interna- tional work, he served as a member of the U.S. Advisory Committee on International Rules of Judicial Procedure from 1959 to 1963, and as a member of the Advisory Committee to the SECRETARY OF STATE on Private International Law from 1964 to 1967. Maris took senior (or semiretired) status on December 31, 1958. As a senior judge, he served as SPECIAL MASTER under appointment of the U.S. Supreme Court in a number of significant and complex cases—including land and water claims cases between states and between states and the federal government (see, e.g., Wisconsin v. Illinois, 388 U.S. 426, 87 S. Ct. 1774, 18 L. Ed. 2d 1290 [1967]; United States v. Maine, 420 U.S. 515, 95 S. Ct. 1155, 43 L. Ed. 2d 363 [1975]). He continued to hear and rule on almost one hundred cases per year for the next 25 years. Maris died on February 7, 1989, in Lansdale, Pennsylvania. MARITAL Pertaining to the relationship of HUSBAND AND WIFE ; having to do with marriage. Marital agreements are contracts that are entered into by individuals who are about to be married, are already married, or are in the process of ending a marriage. They ordinarily govern the division and ownership of marital property. MARITAL COMMUNICATIONS PRIVILEGE The right given to a HUSBAND AND WIFE to refuse to testify in a trial as to confidential statement s made to each other within and during the framework of their spousal relationship. The marital communications privilege is a right that only legally married persons have in court. Also called the husband-wife privilege, it protects the privacy of communications be- tween spouses. The privilege allows them to refuse to testify about a conversation or a letter that they have privately exchanged as marital partners. The marital privilege is an exception to the general rule that all relevant evidence is admissible at trial. Similar privileges exist for communications between priest and penitent (one who has confided in the priest), attorney and client, and doctor and patient. Privileges exclude evidence from trial in order to advance some social goal. With the marital privilege, the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MARITAL COMMUNICATIONS PRIVILEGE 465 goal of free and open communication between spouses, which is belie ved to strengthen and further the marital relationship, is given greater weight than the need for evidence (the infor- mation exchanged by the sp ouses) to resolve a legal dispute. The marital communications privilege orig- inated at COMMON LAW. It was made formal in the English Evidence Amendment Act of 1853, which said that neither husbands nor wives could be forced to disclose any communication made to the other during the marriage. In the United States, the privilege came to be recog- nized in state and FEDERAL RULES OF EVIDENCE.By the twentieth century, the U.S. Supreme Court said that it was “regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administra- tion of justice” (Wolfle v. United States, 291 U.S. 7, 54 S. Ct. 279, 78 L. Ed. 617 [1934]). The marital communications privilege is available in most jurisdictions. Most jurisdic- tions offering it allow a witness spouse to choose whether to testify; some automatically disqualify evidence from a spouse. The privilege is not absolute. Because its effect is to deny evidence at trial, courts generally interpret it narrowly. The most important condition for its use is a legal marriage. Courts will not permit its use by partners who merely live together or by those who have a COMMON-LAW MARRIAGE or a sham, or false, marriage. Moreover, the communication must have taken place while the marriage existed, not after a DIVORCE. Generally, the determination of whether a marriage is legal depends on state law. The privilege also cannot be claimed in certain situations, such as where one spouse is subject to prosecution for crimes committed against the other or against the children of the couple. In addition, the presence of third persons at the time of the communication usually eliminates confidentiality and thus destroys the privilege, although courts have granted exceptions for the presence of children. Many jurisdictions make the distinction of which spouse “holds,” and may therefore assert, the privilege—the defendant spouse or the witness spouse. In these jurisdictions, the spouse who holds the privilege may waive it and testify against the other spouse. FURTHER READINGS Allen, Ronald J., et al, eds. 2006. Evidence: Text, Problems, and Cases. Frederick, MD: Aspen. Best. 2007. Evidence Examples & Explanations. Frederick, MD: Aspen. Pappa, Kristina K. 1995. “Note: Evidence—Privileged Communications.” Seton Hall Law Review 25. Statsky, William. 2001. Family Law. Eagan, MN: West. CROSS REFERENCES Attorney-Client Privilege; Privileged Communication; Tes- timony. MARITIME LIEN The right of a particular individual to compel the sale of a ship because he or she has not been paid a debt owed to him or her on account of such vessel. A maritime lien is designed to furnish security to a creditor and to enable a person to obtain repairs and supplies even in the event that the ship is a distance away from its owners and no significant amount of money is on board to pay for the goods and services that are provided. Maritime liens are distinguishable from a majority of other types of liens since the creditor need not retain possession of the boat before asserting a claim. They can exist only on movable objects that bear some relationship to navigation or commerce on NAVIGABLE WATERS: for example, every part of a vessel, such as the hull, engine and tackle; as well as flatboats, lighters, scows, and dredges used to deepen harbors and channels. Controversy exists con- cerning whether a maritim e lien can attach to a raft; however, courts have not recognized maritime liens for repairs done on a seaplane while it is in a hangar on dry land or for bridges, dry docks, wharves, or floating structures permanently moored to shore, such as barges that are used for restaurants. The amount of a maritime lien equals the reasonable value of services that are performed in maintaining the ship, coupled with supplie s that are furnished plus interest, less any set-off for claims the ship has against the lienholders. The amount ordinarily arises out of a contract; however, a maritime lien can also be created for damages that are attributable to injuries that are caused by the ship. An individual who is entitled to a maritime lien may forfeit his or her right if he or she delays in enforcing it or does something inconsistent with the lien. Allowing the ship to depart does not affect the lien; however, the complete destruction of a vessel extinguishes it. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 466 MARITIME LIEN A lienholder must sue in federal court in order to enforce a maritime lien, and anyone holding a lien against the ship can intervene in the action.The court may order a sale of the ship and its cargo and distribute the proceeds to those who establish a valid claim against the ship. Where there are insufficient funds to satisfy every claim, the court determines which liens have priority, and the percentage of recovery that each claimant is entitled to collect. CROSS REFERENCES Intervention; Admiralty and Maritime Law. MARKET VALUE The highest price a willing buyer would pay and a willing seller would accept, both being fully informed, and the property being exposed for sale for a reasonable period of time. The market value may be different from the price a property can actually be sold for at a given time (market price). The market value of an article or piece of property is the price that it might be expected to bring if offered for sale in a fair market; not the price that might be obtained on a sale at public auction or a sale forced by the necessities of the owner, but such a price as would be fixed by negotiation and mutual agreement, after ample time to find a purchaser, as between a vendor who is willing (but not compelled) to sell and a purchaser who desires to buy but is not compelled to take the particular article or piece of property. MARKETABLE TITLE Ownership and possession of real property that is readily transferable because it is free from valid claims by outside parties. The concept of marketability of title refers to ownership of real estate. Under law, titles are evidence of ownership. Selling real estate (land and the property attached to it) involves transferring its title. A marketable title is one that can be transferred to a new owner without the likelihood that claims will be made on it by another party. The concept is crucial in all real estate transactions because buyers generally expect to receive property to which no one else can lay claim; they do not expect that their ownership will later be challenged. Marketabili- ty of title is addressed in the contract for sale. Unless a contract for sale specifies that a third party has claims on the real estate, there is an implied provision that the seller has a good or marketable title, which the buyer will receive. However, some real estate that is for sale will have outside claims against it. These claims are known as clouds and encumbrances. For instance, the owner of the title may have outstanding debts or owe interest that has resulted in a lien being placed on the property. The lien gives the owner’s creditor a qualified legal right to the property in question, which remains in effect until the debt is settled. Because liens are long-lived (they can remain in force across generations), many states have tried to simplify land transactions by adopting marketable title acts. Generally, these laws limit the duration of a lien to a period of years during which the lien holder must take some action to satisfy the lien, or it is extinguished. Typically these laws apply to liens in existence at the time of the law’s creation, as well as to future liens. Ordinarily, contracts for the sale of real estate provide a remedy for a buyer who later discovers that the title is not marketable. If the seller has failed to provide marketable title, the buyer is permitted to rescind the sale—that is, to back out of the contract and receive a refund of the money paid for the property. Suppose, for example, that Mary buys land from Bob. The contract of sale declares that Bob holds marketable title to the land. After paying Bob, Mary receives a letter from an attorney saying that a business called Lou’s Used Cars holds a lien on the property because Bob is using it as collateral for a car loan. In this case Bob has failed to provide Mary with marketable title. He will soon be hearing from her attorney, who will say that Mary is rescinding and wants her money back. CROSS REFERENCES Cloud on Title; Real Property; Title Insurance; Title Search. MARQUE AND REPRISAL A commission by which the head of a government authorizes a private ship to capture enemy vessels. The authority to do such capturing is granted to private vessels in letters of marque and reprisal. In the technical sense, a letter of marque is permission to cross over the frontier into another country’s territory in order to take a ship; a letter of reprisal authorizes taking the captured vessel to the home port of the capturer. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MARQUE AND REPRISAL 467 . court of law. Having ruled that the Judiciary Act of 1789 was invalid and unenforceable, Marshall next asked whether the judiciary was the appropriate GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E. needed to curry the favor of Congress, which possessed the power to limit the appellate jurisdiction of the Supreme Court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 462 MARBURY V. MADISON under. LIBERTY . —ALBERT MARIS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 464 MARGIN CALL school for refusing, on religious grounds, to recite the Pledge of Allegiance. The Gobitises filed a lawsuit in federal