Gale Encyclopedia Of American Law 3Rd Edition Volume 7 P13 ppt

When offering evidence to prove modus operandi, the prosecution does not have to prove BEYOND A REASONABLE DOUBT that the other crimes occurred. Rather, the prosecution simply must present sufficient evidence to show that the act took place and was committed by the defendant. CROSS REFERENCES Criminal Law; Criminal Procedure. MOIETY One-half. Joint tenants own their estate by the moiety. CROSS REFERENCE Joint Tenancy. MONEY LAUNDERING The process of taking the proceeds of criminal activity and making them appear legal. Laundering allows criminals to transform illegally obtained gain into seemingly legitimate funds. It is a worldwide problem, with approxi- mately $300 billion going through the process annually in the United States. The sale of illegal narcotics accounts for much of this money. Those who commit the underlying criminal activity may attempt to launder the money themselves, but increasingly a new class of criminals provides laundering services to ORGA- NIZED CRIME . This new class consists of lawyers, bankers, and accountants. Criminals want their illegal funds laundered because they can then move their money through society freely, without fear that the funds will be traced to their criminal deeds. In addition, laundering prevents the funds from being confiscated by the police. Money laundering usually consists of three steps: placement, layering, and integration. Placement is the depositing of funds in financial institutions or the conversion of cash into negotiable instruments. Placement is the most difficult step. The easiest way to begin laundering large amounts of cash is to deposit them into a financial institution. However, under the federal Bank Secrecy Act of 1970 (BSA), 31 U.S. C.A. §§ 5311 et seq., financial institutions are required to report deposits of more than $10,000 in cash made by an individual in a single day. To disguise criminal activity, laun- derers route cash through a “front” operation; that is, a business such as a check-cashing service or a jewelry store. Another option is to convert the cash into negotiable instruments, such as cashier’s checks, money orders, or traveler’s checks. Layering involves the wire transfer of funds through a series of accounts in an attempt to hide the funds’ true origins. This often means transferring funds to countries outside the United States that have strict bank-secrecy laws. Such countries include the Cayman Islands, the Bahamas, and Panama. Once deposited in a foreign bank, the funds can be moved through accounts of “shell” corporations, which exist solely for laundering purposes. The high daily volume of wire transfers makes it difficult for law enforcement agencies to trace these transactions. Integration involves the movement of lay- ered funds, which are no longer traceable to their criminal origin, into the financial world, where they are mixed with funds of legitimate origin. Many banks did not comply with the BSA during the 1970s and early 1980s. Following several federal investigations where it was revealed that banks had failed to report billions of dollars of cash transactions, reporting re- quirements were strengthened. Congress also enacted the Money Laundering Control Act of 1986 (MLCA), 18 U.S.C.A. §§ 1956 et seq. This statute criminalizes money laundering itself. It centers its attention on the criminals and conspirators who seek to launder the proceeds of illegal activity, including merchants, bankers, and members of the professions who assist criminals with money laundering. Another provision of the MLCA authorizes the government to confiscate all property that is traceable to violations of laws against money laundering. After the SEPTEMBER 11TH ATTACKS on the United States in 2001, the federal government began to investigate more closely the connection between TERRORISM and the sale of illegal drugs. According to President GEORGE W. BUSH, “[T]errorists use drug profits to fund their cells to commit acts of murder. If you quit drugs, you join the fight against terror in America. ” Terrorists have laundered money through such foreign countries as Colombia and Afghanistan. In September 2002, the DRUG ENFORCEMENT ADMINISTRATION opened a museum exhibit in New York entitled “ Target America: Traffickers, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 108 MOIETY Terrorists and You” in an effort to educate the American public about the connection between drug sales and terrorism. FURTHER READINGS Lilley, Peter. 2006. Dirty Dealing: The Untold Truth about Global Money Laundering, International Crime and Terrorism. 3d ed. Sterling, VA: Kogan Page. Sulltzer, Scott. 1995. “Money Laundering: The Scope of the Problem and Attempts to Combat It.” Tennessee Law Review 63. U.S. Department sof the Treasury and U.S. Department of Justice. 2000. The National Money Laundering Strategy for 2000. Washington, D.C.: U.S. Departments of the Treasury and Justice. Available online at http://www. ustreas.gov/press/releases/docs/ml2000.pdf; website home page: http://www.ustreas.gov (accessed August 17, 2009). Vukson, William B.Z., ed. 2003. Organized Crime & Money Laundering. Toronto: G-Seven Report. Woods, Brett F. 1998. The Art & Science of Money Laundering: Inside the Commerce of the International Narcotics Traffickers. Boulder, CO: Paladin. CROSS REFERENCE Banks and Banking. MONEY PAID The technical name given a declaration in ASSUMPSIT in which the plaintiff declares that the defendant had and received certain money. A COMMON-LAW PLEADING , stating that the defendant received money that, in EQUITY and good con- science, should be paid to the plaintiff. MONOPOLY An economic advantage held by one or more persons or companies deriving from the exclusive power to carry on a particular business or trade or to manufacture and sell a particular item, thereby suppressing competition and allowing such persons or companies to raise the price of a product or service substantially above the price that would be established by a free market. In a monopoly, one or more persons or companies totally dominates an economic market. Monopolies may exist in a particular industry if a company controls a major natural resource, produces (even at a reasonable price) all of the output of a product or service because of technological superiority (called a natural monopoly), holds a patent on a product or process of production, or is otherwise granted government permission to be the sole producer of a product or service in a given area. U.S. law generally views monopolies as harmful because they obstruct the channels of free competition that determine the price and quality of products and services offered to the public. The owners of a monopoly have the power, as a group, to set prices, to exclude competitors, and to control the market in the relevant geographic area. U.S. antitrust laws prohibit monopolies and any other practices that unduly restrain competitive trade. These laws are based on the belief that equality of opportunity in the marketplace and the free interactions of competitive forces result in the best allocation of the economic resources of the nation. Moreover, it is assumed that competition enhances material progress in production and technology while preserving democratic, political, and social institutions. History Economic monopolies have existed throughout much of human history. In England, a monopoly originally was an exclusive right that was expressly granted by the king or Parliament to one person or class of persons to provide some service or goods. The holders of such rights, usually the English guilds or inventors, domi- nated the market. By the early seventeenth century the English courts began to void monopolies as interfering with free of trade. In 1623 Parliament enacted the Statute of Monopolies, which prohibited all but specifically excepted monopolies. With the Industrial Revolution of the early nineteenth century, economic production and markets exploded. The growth of capitalism and its emphasis on the free play of competition reinforced the idea that monopolies were unlawful. In the United States, during most of the nineteenth century, monopolies were prosecu- ted under COMMON LAW and by statute as market-interference offenses in attempts to stop dealers from raisi ng prices through techniques such as buying up all available supplies of a material, which is called “cornering the market.” Courts also refused to enforce contracts with harsh provisions that were clearly unreasonable restraints of trade. These measures were largely ineffective. Government Regulation Congress intervened after abuses became wide- spread. In 1887 Congress, pursuant to its constitutional power to regulate interstate commerce, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MONOPOLY 109 passed the INTERSTATE COMMERCE ACT (49 U.S.C.A. §§ 1 et seq.) in response to the monopolistic practices of railroad companies. Although competition among railroad companies for long- haul routes was great, it was minimal for short-haul runs. Railroad companies discrimi- nated in the prices they charged to passengers and shippers in different localities by provid- ing rebates to large shippers or buyers, in order to retain their long-haul business. These practices were especially harmful to farm ers because they lacked the volume of traffic necessary to obtain more favorable rates. Although states attempted to regulate the railroads, they were powerless to act where interstate commerce was involved. The Interstate Commerce Act was intended to regulate shipping rates. It mandated that charges be set fairly, and it outlawed unreasonable discrimination among customers through the use of rebates or other pre ferential devices. Congress soon moved ahead on another front, enacting the SHERMAN ANTI-TRUST ACT of 1890 (15 U.S.C.A. §§ 31 et seq.). A trust was an arrangement by which stockholders in several companies transferred their shares to a set of trustees in exchange for a certificate that entitled them to a specified share of the consolidated earnings of the jointly managed companies. The trusts came to dominate a number of major industries, destroying their competitors. The Sherman Act prohibited such trusts and their anticompetitive practices. From the 1890s through 1920, the federal government used the act to break up these trusts. The Sherman Act provides for criminal prosecution by the federal government against corporations and individuals who restrain trade, but criminal sanctions are rarely sought. The act also provides for civil remedies for private persons who start an action under it for injuries caused by monopolistic acts. The award of TREBLE DAMAGES (the tripling of the amount of damages awarded) is authorized under the act in order to promote the interest of private persons in safeguarding a free and competitive society and to deter violators and others from future illegal acts. The Clayton Anti-Trust Act of 1914 (15 U.S. C.A. §§ 12 et seq.) was passed as an amendment to the Sherman Act. The CLAYTON ACT specifically defined which monopolistic acts were illegal but not criminal. The act proscribed price discrimination (the sale of the same product at different prices to similarly situated buyers), exclusive-dealing contracts (sales on condition that the buyer stops dealing with the seller’s competitors), corporate mergers, and interlock- ing directorates (the same people serving on the boards of directors of competing companies). Such practices w ere illegal only if, as a result, they materially reduced competition or tended to create a monopoly in trade. The FEDERAL TRADE COMMISSION Act of 1914 (15 U.S.C.A. §§ 41 et seq.) established the Federal Trade Commission, the regulatory body that promotes free and fair competitive trade in interstate commerce through the prohibition of price-fixing arrangements, false advertising, boycotts, illegal combinations of competitors, and other methods of UNFAIR COMPETITION. Congress passed the ROBINSON-PATMAN ACT of 1936 (15 U.S.C.A. §§ 13 et seq.) to amend the Clayton Act. The act makes it unlawful for any seller engaged in commerce to directly or indirectly discriminate in the sale price charged on commodities of comparable grade and quality where the effect might injure, destroy, or prevent competition unless the seller dis- criminated in order to dispose of perishable or obsolete goods or to meet the equally low price of a competitor. Exemptions Despite these legal prohibitions, not all industries and activities are subject to them. Labor unions monopolize the labor force and take concerted action to improve the wages, hours, and working conditions of their members. The Clayton Act and the NORRIS-LAGUARDIA ACT of 1932 (29 U.S.C.A. §§ 101 et seq.) recognized that unions would be powerless without this monopolistic behavior and, therefore, made unions immune from antitrust laws. A government-awarded monopoly, such as the right to provide electricity or natural gas to a region of the country, is exempt from antitrust laws. Government agencies regulate these industries and set reasonable rates that the company may charge. Sometimes an industry is a natural monopoly. This type of monopoly is created as a result of circumstances over which the monopolist has no power. A natural monopoly may exist where a market for a particular product or service is so limited that its profitable production is GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 110 MONOPOLY impossible except when done by a single plant that is large enough to supply the entire demand. Natural monopolies are beyond the reach of antitrust laws. Special-interest industries, such as agricul- tural and fishery marketing associations, banking and insurance industries, and export trade associations are also immune from antitrust laws. Major leag ue baseball has been exempted from antitrust laws as well. The phenomenal popularity of the personal computer (PC) in the 1980s and 1990s cata- pulted Microsoft Corporation past manufac- turing corporations as a preeminent business organization in the United States and the world. With the explosion of interest in the Internet in the mid-1990s, Microsoft moved aggressively to market its Internet Explorer (IE) web browser and to crush its competitor, Netscape. Having already secured a monopoly with its Windows Operating System, Microsoft seemed poised to dominate the web-browser market. However in 1998, 19 state attorneys general joined the U.S. JUSTICE DEPARTMENT in filing an antitrust lawsuit against Microsoft. The suit alleged that the software company forced computer manufacturers (kno wn as original equip- ment manufacturers or OEMs) to license and distribute Microsoft’s IE in exchange for the right to pre- install Microsoft’s Win dows 95 operating system on new PCs. Microsoft con- tended that IE was an integral part of Windows 95 and that it could not be separated without causing the operating system as a whole to malfunction. The plaintiffs argued that Micro- soft was engaged in an illegal TYING ARRANGEMENT by conditioning the purchase of a popular product (Windows 95) on the purchase of an additional, unrelated product (IE.) The case came to trial in October 1998 before U.S. District Court Judge Thomas Penfield Jackson, sitting without a jury. Jackson ruled for the plaintiffs in November 1999, finding that the facts fully justified the conclusion that Microsoft had sought monopoly power through illegal means. He appointed Chief Judge RICHARD A. POSNER of the U.S. Court of Appeals for the Seventh Circuit to mediate the case, in hopes of bringing the bitter conflict to a quick conclusion. However, Posner could not broker a settlement and Jackson issued his final order in April 2000. He ordered that Microsoft be split into two companies and that the companies desist from monopolistic con- duct. The U.S. Court of Appeals for the District of Columbia overturned this decision in June 2001. United States v. Microsoft Corp., 253 F.3d 34, (2001). Although the court agreed that Microsoft had engaged in monopolistic practices, it found that Judge Jackson had committed misconduct by making derogatory comments about Microsoft. The case was sent back to the U.S. District Court for the District of Columbia, with Judge Colleen Kollar-Kotelly presiding. Kollar-Kotelly encouraged new settlement talks, which bore fruit in November of 2001. Microsoft entered into a settlement agreement with the U.S DEPARTMENT OF JUSTICE and one group of state attorneys general (called the “New York” group). The rest of the state attorneys general (called the “California” group) pursued a remedy in court. Two final judgments were entered a year later, one based on the settlement and one based on the LITIGATION. Largely identical, the two judgments covered four principle areas. First, the judgments require that Microsoft make Windows available under a standard licensing agreement to OEMs, although discounts could still be given to large-volume purchasers. Second, the judgments allow OEMs to remove desktop icons that give users easy access to Windows’ add-on f eatures, such as the Media Player. The underlying software code would still be in place, even though the end user would have no direct access to activ ate it. Computer manufacturers could then promote rivals’ software by placing an icon on the desktop, and Microsoft would be prohibited from retaliating. Third, the judgments compel Microsoft to disclose certain technical details and license certain communication protocols that OEMs need to make their software work with Windows. Fourth, the two judgments mandate the creation of a Technical Committee for the purpose of “monitoring Microsoft’s compliance, evaluating third-party complaints, and proposing ways to cure violations.” Although the two judgments came under harsh criticism from many industry observers, especially those in favor of breaking up Micro- soft, the plaintiffs asked the court to renew the judgments in 2007. Judge Kollar-Kotelly granted the motion in part, extending both judgments until November 12, 2009. The court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MONOPOLY 111 rejected the plaintiffs request for a five-year extension. The two-year extension gives Micro- soft the opportunity to resolve the protracted antitrust litigation it faces in the European Union, which raises many of the same issues that were addressed during its antitrust battle in the United States, only in a different jurisdic- tion with governing laws even more hostile to monopolies and monopolistic practices. FURTHER READINGS Elhauge, Einer. 2009. “Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory.” Harvard Law Review. 123 (December). Kapoor, Ankur. 2009. “What Is the Standard of Causation of Monopoly?” Antitrust 9 (March-April). 23 (Summer). Lucarelli, Bill. 2004. Monopoly Capitalism in Crisis. New York: Palgrave Macmillan. Ottosen, Garry K. 1990. Monopoly Power: How It Is Measured and How It Has Changed. Salt Lake City: Crossroads Research Institute. Scherer, F.M. 1993. Monopoly and Competition Policy. Brookfield, VT: Edward Elgar. Zoninsein, Jonas. 1990. Monopoly Capital Theory: Hilferding and Twentieth-Century Capitalism. New York: Green- wood Press. CROSS REFERENCES Antitrust Law; Combinatio n in Restraint of Trade; Inter- state Commerce Commission; Mergers and Acquisitions; Public Utilities; Restraint of Trade. MONROE DOCTRINE The Founding Fathers of the United States of America sought to establish a foreign policy that was compatible with the surge of nationalism that engulfed the new country during its first century of independence. The Monroe Doctrine, proposed by President JAMES MONROE in 1823, contributed to the formation of such a policy. Certain events in 1821 prompted the creation of the doctrine. An insurrection in the colonies under Spanish rule in Latin America resulted in freedom for the colonies, but several European nations threatened to intervene on Spain’s behalf and restore the former colonies to Spanish domination. Both the United States and Great Britain saw the advantages of trade with the new Latin Ameri- can nations and feared further European interference in future disputes. As a result, British Foreign Secretary George Canning approached the U.S. emissary in London, RICHARD RUSH, with a proposal for the formation of a dual alliance to protect the interests of the two countries. According to Canning’s plan, the United States and Great Britain would oppose any intervention in the Spanish colonies by any European co untry except Spain. President JAMES MONROE was agreeable to the terms of Canning’s proposition, as were Secre- tary of War JOHN C. CALHOUN and former Presidents THOMAS JEFFERSON and JAMES MADISON. Secretary of State JOHN QUINCY ADAMS, however, presented an alternative view. Adams believed that Britain’s interests in Latin America were sufficiently strong to encourage Britain’s defense of those nations whether or not the United States agreed to Canning’s proposal. Adams favored the development of a U.S. policy without alliance with Britain. On December 2, 1823, Monroe presented the terms of the Monroe Doctrine, which Adams had helped to develop. The doctrine contained four significant elements: The American continents were to be regarded as independent, with no further settlement by European nations; the nations of the Western Hemisphere were deemed republics, as opposed to the European system of monarchies; European intervention in the affairs of nations of the Western Hemisphere was prohibited and would be viewed as a threat to the security of the United States; and, conversely the United States prom ised to refrain from involvement in European affairs. CROSS REFERENCE “Monroe Doctrine” (Appendix, Primary Document). v MONROE, JAMES James Monroe was the fifth president of the United States and a distinguished diplomat. His administration was marked by several This undated cartoon from the New York Herald depicts European potentates observing U.S. naval might. CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 112 MONROE DOCTRINE foreign-policy accomplishments, including the MONROE DOCTRINE, and a period of domestic tranquility that has been called the Era of Good Feelings. Monroe was born in Westmoreland County, Virginia, on April 28, 1758. He attended the College of William and Mary at the age of 16 but left in 1776 to fight in the Revolutionary War. He was wounded at the Battle of Trenton but served until the end of the war. During this period he became acquainted with THOMAS JEFFERSON, then governor of Virgi- nia. Monroe soon adopted Jefferson as his teacher and mentor, a relationship that would endure throughout Monroe’s life. In 1780 Monroe began studying law with Jefferson, and in 1786 he established a law practice in Fredericksburg, Virginia. Politics, however, proved a more powerful attraction than a legal career. Monroe became a member of the Virginia House of Delegates in 1782, and from 1783 to 1786 he participated in the CONTINENTAL CON- GRESS . Monroe, like Jefferson, did not favor a highly centralized federal government. He pre- ferred a government system under the ARTICLES OF CONFEDERATION , which allocated greater powers to the states, as opposed to the Cons- titution, which gave the federal government more authority. He did believe in the development of the West and worked with Jefferson to enact laws to further this purpose. In 1786 he retired from Congress. In 1788 Monroe participated in the Virginia convention that ratified the new federal Constitution. He was elected to the U.S. Senate in 1790 and served until 1794. After the expiration of his senatorial term, Monroe served as minister to France. President GEORGE WASHINGTON appointed Monroe to this position despite Monroe’s opposition to the Washington administration’s policies. When Monroe did not follow his diplomatic instructions and made intemperate remarks about policies with which he disagreed, Washington recalled him in 1796. Monroe quickly reentered Virginia politics. He was elected governor in 1799 and served a three-year term. In 1802 President Jefferson sent Monroe back to France as a special envoy. He and ROBERT R. LIVINGSTON negotiated the LOUISIANA PURCHASE from France in 1803. Following this success, Jefferson named Monroe minist er to England, where he served until 1806. Again Virginia politics beckoned. Monroe served briefly as governor b ut left in 1811 to join the cabinet of President JAMES MADISON.Hewas SECRETARY OF STATE from 1811 to 1817 and secretary of wa r, during t he WAR OF 18 12 and from 1 8 14 to James Monroe 1758–1831 ▼▼ ▼▼ 17501750 18001800 18251825 17751775 ❖ ◆◆ 1758 Born, Westmoreland County, Va. ❖ 1775–83 American Revolution 1812–14 War of 1812 1790–94 Served in U.S. Senate 1831 Died, New York City 1783–86 Participated in Continental Congress 1803 Helped negotiate Louisiana Purchase from France; appointed minister to England 1823 Monroe Doctrine declared Western Hemisphere closed to further European colonization 18501850 1811 Appointed secretary of state under Madison 1819 Spain ceded Florida to United States in return for cancellation of U.S. monetary claims ◆ ▼▼ 1780–83 Studied law under Jefferson 1799–1802 Served as governor of Virginia 1829 Presided over the Virginia Constitutional Convention 1817–25 Served as fifth president of the United States ◆ ◆ James Monroe. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MONROE, JAMES 113 1815. The successful conclusion of the war and the military triumphs of General ANDREW JACKSON helped boost Monroe’spopularity. In 1816 he was elected president of the United States as a member of the DEMOCRATIC- REPUBLICAN PARTY. The FEDERALIST PARTY disap- peared after the election, and most politicians belonged to the Democratic-Republican party. With an end to the political feuding of the early years of the Republic, Monroe was able to promote what has been called the Era of Good Feelings. His popularity was so great that he was unopposed for reelection in 1820. Monroe’s presidency produced important domestic legislation, including the MISSOURI COMPROMISE OF 1820, which limited the extension of SLAVERY into new territories. His main efforts, however, were directed at foreign affairs. The Rush-Bagot Treaty, drafted in 1817, res- tricted the increase of armaments in the Great Lakes area. In 1818 Great Britain agreed to the forty-ninth parallel as the boundary between the United States and Canada from Lake of the Woods on the Minnesota-Ontario border as far west as the Rocky Mountains. In 1819 U.S. diplomats convinced Spain to cede Florida to the United States in return for the cancellation of $5 million in U.S. claims against Spain. In 1823 Monroe presented the most significant measure of his administration, the Monroe Doctrine. During the Napoleonic Wars, Spain had lost interest in its American colonies. Most of the colonies de clared their independence, but the United States was concerned that Spain might try to reassert control. The Monroe Doctrine declared that the Western Hemisphere was closed to further European colonization and that any European intervention would be regarded as a threat to the security of the United States. Conversely, the United States agreed not to intervene in European matters. The Monroe Doctrine would be invoked several times by future presidential administrations. After leaving the presidency in 1824, Monroe retired to Oak Hill, his estate in Virginia that was near Jefferson’s Monticello. He served as a regent of the University of Virginia and in 1829 presided over the Virginia Constitution al Convention. Monroe’s last years were difficult. He left public service a poor man and was too old to rebuild his law practice. He was forced to sell his home and move to New York City to live with his daughter. He died there on July 4, 1831. FURTHER READINGS Ammon, Harry. 1990. James Monroe: The Quest for National Identity. Charlottesville: Univ. of Virginia Press. Cunningham, Noble E. 1996. The Presidency of James Monroe. Lawrence: Univ. Press of Kansas. Wilderming, Lucius, Jr. 1960. James Monroe: Public Claimant. New Brunswick, NJ: Rutgers Univ. Press. CROSS REFERENCES Missouri Compromise of 1820; Monroe Doctrine; “Monroe Doctrine” (Appendix, Primary Document). v MONTESQUIEU, CHARLES-LOUIS DE SECONDAT, BARON DE LA BRÈDE ET DE Charles-Louis de Secondat, Baron de la Brède et de Montesquieu, was a French social and political ph ilosopher whose ideas about laws and government had great influence on the leaders of the American Revolution and the Framers of the U.S. Constitution. Montesquieu was born January 18, 1689, in La Brède, France, just outside of Bordeaux, to an aristocratic family with considerable land- holdings. As a young man he studied Latin, French, history, and the law before graduating from the Univ ersity of Bord eaux in 1708. In 1715 he married Jeanne Lartigue, whose family brought him substa ntial wealth, and a year later his uncle died and left him his title and his property, making Montesquieu extremely rich. While his wife remained in La Brède managing his estate, Montesquieu traveled and enjoyed the social and intellectual life of Paris, attending fashionable salons and meeting with leading thinkers in the areas of politics and literature. He also served as president á mortier, or justice, of the Bordeaux parlement, an office he inherited from his uncle. In 1728 Montesquieu left Paris for a three- year trip through Europe. Montesquieu closely examined the people and cultures of the countries he visited, paying particular attention to England, where he was intrigued by the level of political and religious freedom the people there enjoyed, as well as the country’s bustling mercantile economy. He rema ined in England for 18 months. During this time he was introduced into the most prestigious intellectual and social circles, was admitted to court, was made a fellow of the Royal Society, and attended several sessions of Parliament. Montesquieu’s experience in England was critical in shaping his political philosophies because it proved to him LET US BY ALL WISE AND CONSTITUTIONAL MEASURES PROMOTE INTELLIGENCE AMONG THE PEOPLE AS THE BEST MEANS OF PRESERVING OUR LIBERTIES . —JAMES MONROE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 114 MONTESQUIEU, CHARLES-LOUIS DE SECONDAT, BARON DE LA BRÈDE ET DE that a society could combine the RULE OF LAW with political freedom. After returning home in May 1731, Mon- tesquieu spent the next 15 years working on his masterpiece, De l’Esprit des lois (literally On the Spirit of the Laws, but usually translated as The Spirit of the Laws). In this immense and loosely connected work, containing more than 600 chapters grouped into 31 books, Montesquieu combined a lifetime of thoughts and personal observations concerning governments, laws, and human nature. His topics ranged from detailed analyses of ancient history to the effects of climate on national character. By closely examining a wide variety of societies through time and across cultures, Montesquieu sought to identify the basic principles underlying how laws work, how they evolve, and how they differ from country to country and culture to culture. The Spirit of the Laws was published in 1748 in Geneva. It was a huge and immediate success; by the end of 1749, 22 other editions, including many translations, had reached all over Europe and across the ocean to the North American colonies. The work also generated considerable controversy, particularly with church authori- ties. They objected to Montesquieu’s intellectual approach, which was grounded in the then radical notion that laws were not divinely inspired or handed down by ancient lawgivers such as Moses but evolved naturally out of everything that influences life in a country, including traditions, habits, history, religion, economics, and climate. Laws, Montesquieu believed, could be rationally studied and then adjusted to increase liberty for all. He responded to criticisms of his work in 1750 with De f ense d e l’Esprit des lois, but the Catholic Church nevertheless put The Spirit of the Laws on the church’s Index in 1751, wh ich meant that Catholics were forbidden to read it. Despite this official censure, Montesquieu was named director of the Academie Française in 1753. On January 29, 1755, Montesquieu became ill with what appears to have been influenza, and his health quickly deteriorated. His sickness generated much attention; many people viewed it as symbolic of the great conflict between established religion and the forces of reason and enlightenment that marked the eighteenth century. During his illness Montesquieu’s house Charles-Louis de Scondat, Baron de la Brede et de Montesquieu LIBRARY OF CONGRESS Charles-Louis de Secondat, Baron de la Brède et de Montesquieu 1689–1755 ❖ ❖ 1689 Born, La Brède, France 1728 Began three- year trip through Europe 1731 Returned home to Paris and began writing Defense de I'Esprit des Lois (The Spirit of the Laws) 1755 Died, Paris, France ▼▼ ▼▼ 17001700 17501750 17751775 17251725 1775–83 American Revolution 1789 French Revolution ◆◆◆◆◆ ◆ ◆ 1751 The Spirit of the Laws placed on the Catholic Church's Index, a list of forbidden readings 1787 Montesquieu's arguments used by Federalists in ratification debates at American Constitutional Convention 1753 Named director of the Academie Française 1748 The Spirit of the Laws published in Geneva 1716 Acquired barony of Brède upon death of his uncle ◆ ◆ ◆ 1708 Graduated from the University of Bordeaux 1715 King Louis XV ascended throne of France GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MONTESQUIEU, CHARLES-LOUIS DE SECONDAT, BARON DE LA BRÈDE ET DE 115 was filled with friends monitoring his condition, including messengers from the king. Montes- quieu died on February 10, 1755, and was buried in the parish church of Saint-Sulpice. As was the case in Europe, Montesquieu was a leading intellectual figure in the American colonies, and The Spirit of the Laws was a standard subject of close study for young American scholars. Figures show that Montes- quieu’s works, particularly The Spirit of the Laws, were widely disseminated through American booksellers and libraries, and Montesquieu’s ideas were frequently discussed in newspapers and journals. Montesquieu’sworkswerefoundin the personal libraries of nearly all of the country’s founding fathers, including BENJAMIN FRANKLIN, JOHN ADAMS, THOMAS JEFFERSON,andJAMES MA DISON. Different elements of the theories Montes- quieu outlined in The Spirit of the Laws were popular in America at different times, varying with political conditions and developments. In general, however, the most influential portions of the work were chapters 3 and 6 of book XI, in which Montesquieu analyzed the English constitution, a discussion that heavily influenced the SEPARATION OF POWERS later enshrined in the U.S. Constitution. In his analysis Montesquieu outlined the basic principle of the English constitution, which was—and still is—not an actual document but an unwritten consensus regarding the proper rules of governing based on such historical documents as the MAGNA CARTA , the body of COMMON LAW, court decisions, precedents, and tradition. According to Montesquieu, although Eng- land did not have the perfect system of government, it was the best system to be found in modern Europe because it allowed for the greatest degree of liberty, which Montesquieu defined as the right “to do what one should want to do, and not being forced to do what one should not want to do.” For Montesquieu, liberty was, essentially, the right to be left alone. This type of liberty, Montesquieu argued, was only possible under a government specifically constituted to protect citizens from the oppression of their rulers and the aggressions of each other, while allowing for the representa- tion of a wide range of popular interests. For citizens to maintain their liberty against the encroachment of oppressive rulers, a government had to be composed of separate and balanced powers that would check and moderate each other, thus leaving the people a maximum degree of freedom under the laws. To Montesquieu, England most closely approximated this model because its government divided the three main functions of government—the legislative, the executive, and the judicial—into three separate branches: the Parliament, the monarch, and the courts. The powers of these branches were so intertwined that the branches needed each other to operate and also served to moderate each other’s actions. For example, the king or queen could VETO parliamentary legislation, but the monarch’s actions were limited by Parliament’s power of the purse. Because no single branch was able to dominate the other branches or the populace at large, the people were left with a large degree of political freedom. Because the branches had to operate together, their forces counterbalanced each other and resulted in a guarantee of freedom and a bulwark against political tyranny. Although Montesquieu did not present the English system as the perfect model for democratic government, he did praise it for being the only govern ment in modern Europe constituted for the specific purpose of maximizing political liberty. Montesquieu’s description of the basic principles of the English constitution and his emphasis on political liberty held great appeal for the English colonists in North America, particularly beginning in the 1760s when those colonists were chafing under taxes and restric- tions imposed by Parliament that they thought undermined their constitutional rights. Mon- tesquieu was frequently quoted in newspapers, pamphlets, and speeches as colonists protested the opp ressive powers of Parliament and de- fended their right to political liberty. His description of the English constitution became a model against which the colonists contrasted what they saw as the injustice and corruption of the actual English government. After the Revolutionary War ended, Mon- tesquieu again became a principal authority as political leaders set about to create a constitution for the new United States of America. Most of the architects of the Constitution were thoroughly acquaint ed with Montesquieu’ s ideas, and at the Constitutional Convention of 1787, The Spirit of the Laws was frequently cited as delegates attempted to lay down the principles for a government that would USELESS LAWS WEAKEN THE NECESSARY LAWS . —BARON CHARLES- L OUIS DE MONTESQUIEU GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 116 MONTESQUIEU, CHARLES-LOUIS DE SECONDAT, BARON DE LA BRÈDE ET DE maximize political liberty while also maintain- ing the rule of law. The Framers followed many of Montesquieu’s maxims, including his insis- tence upon a separation of powers and his belief that a country’s laws must not be imposed from above but conform to the genius, or nature, of the citizens of that country. Montesquieu’s arguments were also used in the debates over the ratification of the Constitution that followed the Constitutional Convention. He was cited with particular frequency in The Federalist Papers, which were written by James Madison, ALEXANDER HAMILTON, and JOHN JAY to argue in favor of the new Constitution. The writers cited Montesquieu at length in defense of the wisdom of confederating the states into a single republic and of creating a government based upon a separation of powers. Although other scholars had also written on the separation of powers principle, Montesquieu was most closely associated with it, as James Madison noted in The Federalist, no. 47: “The oracle who is always consulted and cited on this subject, is the celebrat ed Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.” Montesquieu’s arguments were also frequently used in the debates over the Constitution at the individual state conventions. Both proponents and oppo- nents of the new Constitution respected him as a political authority, and both used his writings to bolster their arguments. After the ratification of the Constitution in 1789, Montesquieu continued to remain an authority on the creation of laws and the rule of government. The Spirit of the Laws continued to be taught at COLLEGES AND UNIVERSITIES, and leaders of both political parties, the Republicans and the Federalists, used his arguments to advance their own. Montesquieu’s only significant detractor was Thomas Jefferson, who believed, along with friends involved in the impending revolution in France, that Montesquieu was too enamored with England and its constitution. After the French Revolution and the radical changes it wrought, Montes- quieu’s writings came to seem dated and less relevant, and they gradually faded from the political debates. Even so, his work continued to exert a lasting influence on the laws of the United States through the Constitution that was so significantly shaped by his ideas. FURTHER READINGS Bergman, Matthew P. 1990. “Montesquieu’s Theory of Government and the Framing of the American Constitution.” Pepperdine Law Review 19 (December). Carrese, Paul O. 2003. The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism. Chicago: Univ. of Chicago Press. Rodgers, Joseph P. 1997. “Suspending the Rule of Law? Temporary Immunity as Violative of Montesquieu’s Republican Virtue as Embodied in George Washington. Cleveland State Law Review 45 (spring). CROSS REFERENCES Constitution of the United States; Federalist Papers. MONTGOMERY BUS BOYCOTT The Montgomery bus boycott was a mass protest by African American citizens in the city of Montgomery, Alabama, against SEGREGATION policies on the city’s public buses. It was nine years before the CIVIL RIGHTS ACT OF 1964 would change the nation forever. But in 1955, when ROSA PARKS refused to give up her seat on a public bus to a white man, she was arrested and jailed for violating state segregation laws. She did not realize at the time that her actions would have an immediate effect on other members of the African American community and a lasting effect on the national history of CIVIL RIGHTS. The resultant massive boycott lasted for 11 months. It ended in late 1956 when the U.S. Supreme Court ruled that public bus segregation (the case involved the City of Montgomery) was unconstitutional. Browder v. Gayle, 352 U.S. 903. Several of Rosa Parks’ friends were members of the Women’s Political Council (WPC), an organization of black professionals founded in 1946. As early as 1953, WPC members had been actively pursuing changes in bus segregation law through communications with Mayor W.A. Gayle. They requested that black persons be allowed to sit from back toward front and whites from front toward back until a bus was filled. They also demanded more bus stops located in black residential communities. When the talks produced little result, WPC president Jo Ann Robinson sent a final letter to the mayor in May 1954, advising that plans were being made to ride less, if at all, on the buses. Notwithstanding waning use of the public bus system by Montgomery’s black citizens, it was Rosa Parks’s actions on December 1, 1955, that ignited a more organized boycott. Follow- ing her arrest, WPC members prepared a leaflet GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MONTGOMERY BUS BOYCOTT 117 . France ▼▼ ▼▼ 170 0 170 0 175 0 175 0 177 5 177 5 172 5 172 5 177 5–83 American Revolution 178 9 French Revolution ◆◆◆◆◆ ◆ ◆ 175 1 The Spirit of the Laws placed on the Catholic Church's Index, a list of forbidden. Geneva 171 6 Acquired barony of Brède upon death of his uncle ◆ ◆ ◆ 170 8 Graduated from the University of Bordeaux 171 5 King Louis XV ascended throne of France GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD. 175 8–1831 ▼▼ ▼▼ 175 0 175 0 18001800 18251825 177 5 177 5 ❖ ◆◆ 175 8 Born, Westmoreland County, Va. ❖ 177 5–83 American Revolution 1812–14 War of 1812 179 0–94 Served in U.S. Senate 1831 Died, New York City 178 3–86 Participated in