M:
M. When persons were convicted of manslaughter in England, they
were formerly marked with this letter on the brawn of the thumb.
2. This letter is sometimes put on the face of treasury notes
of the United States, and signifies that the treasury note bears
interest at the rate of one mill per centum, and not one per
centum interest. 13 Peters, 176.
MACE-BEARER, Eng. law. An officer attending the court of
session.
MACEDONIAN DECREE, civil law. A decree of the Roman senate,
which derived its name from that of a certain usurer who was the
cause of its being made, in consequence of his exactions. It was
intended to protect sons who lived under the paternal
jurisdiction, from the unconscionable contracts which they
sometimes made on the expectations after their fathers' deaths;
another, and perhaps, the principle object, was to cast odium on
the rapacious creditors. It declared such contracts void. Dig.
14, 6, 1; Domat, Lois, Civ. liv. 1, tit. 6, §4; Fonbl. Eq . B.
1, c. 2, §12, note. Vide Catching bargain; Post obit.
MACHINATION. The act by which some plot or conspiracy is set on
foot.
MACHINE. A contrivance which serves to apply or regulate moving
power; or it is a tool more or less complicated, which is used
to render useful natural instruments, Clef. des Lois Rom. h. t.
2. The act of congress gives to inventors the right to obtain a
patent right for any new and useful improvement on any art,
machine, manufacture, &c. Act of congress, July 4, 1836, s. 6.
See Pet. C. C. 394; 3 Wash. C. C. 443; 1 Wash. C. C. 108; 1
Wash. C. C. 168; 1 Mason, 447; Paine, 300; 4 Wash. C. C. 538;
1 How. U. S., 202; S. C. 17 Pet. 228; 2 McLean, 176.
MADE KNOWN. These words are used as a return to a scire facias,
when it has been served on the defendant.
MAGISTER. A master, a ruler, one whose learning and position
makes him su- perior to others, thus: one who has attained to a
high degree, or eminence, in science and literature, is called a
master; as, master of arts.
MAGISTER AD FACULTATES, Eng. eccl. law. The title of an officer
who grants dispensations; as, to marry, to eat flesh on days
prohibited, and the like. Bac. Ab. Eccles. Courts, A 5.
MAGISTER NAVIS. The master of a ship; a sea captain.
MAGISTER SOCIETATIS, Civil law. The principal manager of the
business of a society or partnership.
MAGISTRACY, mun. law. In its most enlarged signification, this
term includes all officers, legislative, executive, and judicial.
Bouvier's Law Dictionary : M1 : Page 1 of 202
For example, in most of the state constitutions will be found
this provision; "the powers of the government are divided into
three distinct departments, and each of these is confided to a
separate magistracy, to wit: those which are legislative, to
one; those which are executive, to another; and those which are
judiciary, to another." In a more confined sense, it signifies
the body of officers whose duty it is to put the laws in force;
as, judges, justices of the peace, and the like. In a still
narrower sense it is employed to designate the body of justices
of peace. It is also used for the office of a magistrate.
MAGISTRATE, mun. law. A public civil officer, invested with
some part of the legislative, executive, or judicial power given
by the constitution. In a narrower sense this term includes only
inferior judicial officers, as justices of the peace.
2. The president of the United States is the chief magistrate
of this nation; the governors are the chief magistrates of their
respective states.
3. It is the duty of all magistrates to exercise the power,
vested in them for the good of the people, according to law, and
with zeal and fidelity. A neglect on the part of a magistrate to
exercise the functions of his office, when required by law, is a
misdemeanor. Vide 15 Vin. Ab. 144; Ayl. Pand. tit. 22; Dig. 30,
16, 57; Merl. Rep. h. t.; 13 Pick. R. 523.
MAGNA CHARTA. The great charter. The name of an instrument
granted by King John, June 19, 1215, which secured to the English
people many liberties which had before been invaded, and provided
against many abuses which before rendered liberty a mere name.
2. It is divided into thirty-eight chapters,: 1. To the which
relate as follows, namely: freedom of the church and
ecclesiastical persons. 2. To the nobility, knights' service, &c.
3. Heirs and their being in ward. 4. Guardians for heirs within
age, who are to commit no waste. 5. To the land and other
property of heirs, and the delivery of them up when the heirs are
of age. 6. The marriage of heirs. 7. Dower of women in the lands
of their husbands. 8. Sheriffs and their bailiffs. 9. To the
ancient liberties of London and other cities. 10. To distress for
rent. 11. The court of common pleas, which is to be located. 12.
The assise on disseisin of lands. 13. Assises of darein
presentments, brought by ecclesiastics. 14. The amercement of a
freeman for a fault. 15. The making of bridges by towns. 16.
Provisions for repairing sea banks and sewers. 17. Forbids
sheriffs and coroners to hold pleas of the crown. 18. Prefers the
king's debt when the debtor dies insolvent. 19. To the purveyance
of the king's house. 20. To the castleguard. 21. To the manner of
taking property for public use. 22. To the lands of felons, which
the king is to have for a year and a day, and afterwards the lord
of the fee. 23. To weirs which are to be put down in rivers. 24.
To the writ of praecipe in capite for lords against tenants
offering wrong, &c. 25. To measures. 26. To inquisitions of life
and member, which are to be granted freely. 27. To knights'
service and other ancient tenures. 28. To accusations, which must
be under oath. 29. To the freedom of the subject. No freeman
Bouvier's Law Dictionary : M1 : Page 2 of 202
shall be disseised of his freehold, imprisoned and condemned, but
by judgment of his peers, or by the law of the land. 30. To
merchant strangers, who are to be civilly treated. 31. To
escheats. 32. To the power of selling land by a freeman, which is
limited. 33. To patrons of abbeys, &c. 34. To the right of a
woman to appeal for the death of her husband. 35. To the time of
holding courts. 36. To mortmain. 37. To escuage and subsidy. 88.
Confirms every article of the charter. See a copy of Magna Charta
in 1 Laws of South Carolina; edited by Judge Cooper, p. 78. In
the Penny Magazine for the year 1833, page 229, there is a copy
of the original seal of King John, affixed to this instrument,
and a specimen of a facsimile of the writing of Magna Charta,
beginning at the passage, Nullus liber homo capietur vel
imprisonetur, &c. A copy of both may be found in the Magazin
Pittoresque, for the year 1834, p. 52, 53. Vide 4 Bl. Com. 423.
MAIDEN. The name of an instrument formerly used in Scotland for
beheading criminals.
MAIL. This word, derived from the French malle, a trunk,
signifies the bag, valise, or other contrivance used in conveying
through the post office, letters, packets, newspapers, pamphlets,
and the like, from place to place, under the authority of the
United States. The things thus carried are also called the mail.
2. The laws of the United States have provided for the
punishment of robberies or wilful injuries to the mail; the act
of March 3, 1825, 3 Story's Laws U. S. 1985, provides-
§22. That if any person shall rob any carrier of the mail of
the United States, or other person entrusted, therewith, of such
mail, or of part thereof, such offender or offenders shall, on
conviction, be imprisoned not less than five years, nor exceeding
ten years; and, if convicted a second time of a like offence, he
or they shall suffer death; or if, in effecting such robbery of
the mail, the first time, the offender shall wound the person
having the custody thereof, or put his life in jeopardy, by the
use of dangerous weapons, such offender or offenders shall suffer
death. And if any person shall at- tempt to rob the mail of the
United States, by assaulting the person having custody thereof,
shooting at him, or his horse or mule, or, threatening him with
dangerous weapons, and the robbery is not effected, every such
offender, on conviction thereof, shall be punished by
imprisonment, not less than two years, nor exceeding ten years.
And, if any person shall steal the mail, or shall steal or take
from, or out of, any mail, or from, or out of, any post office,
any letter or packet; or, if any person shall take the mail, or
any letter or packet therefrom, or from any post office, whether
with or without the consent of the person having custody thereof,
and shall open, embezzle, or destroy any such; mail, letter, or
packet, the same containing any articles of value, or evidence of
any debt, due, demand, right, or claim, or any release, receipt,
acquittance, or discharge, or any other articles, paper, or
thing, mentioned and described in the twenty-first section of
this act; or, if any person shall, by fraud or deception, obtain
from any person having custody thereof, any mail, letter, or
packet, containing any article of value, or evidence thereof, or
Bouvier's Law Dictionary : M1 : Page 3 of 202
either of the writings referred to, or next above mentioned, such
offender, or offenders, on conviction thereof, shall be
imprisoned not less than two, nor exceeding ten years. And if any
person shall take any letter, or packet, not containing any
article of value, or. evidence thereof, out of a post office, or
shall open any letter or packet, which shall have been in a post
office, or in custody of a mail carrier, before it shall have
been de-livered to the person to whom it is directed, with a
design to obstruct the correspondence, to pry into another's
business or secrets; or shall secrete, embezzle, or destroy, any
such mall, letter, or packet, such offender, upon conviction,
shall pay, for every such offence, a sum not exceeding five
hundred dollars, and be imprisoned not exceeding twelve months.
3. - §23. That, if any person shall rip, cut, tear, burn, or
otherwise injure, any valise, portmanteau, or other bag used, or
designed to be used, by any person acting under the authority of
the postmaster general, or any person in whom his powers are
vested in a conveyance of any mail, letter packet, or newspaper,
or pamphlet, or shall draw or break any staple, or loosen any
part of any lock, chain, or strap, attached to, or belonging to
any such valise, portmanteau, or bag, with an intent to rob, or
steal any mail, letter, packet, newspaper, or pamphlet, or to
render either of the same insecure, every such offender, upon
conviction, shall, for every such offence, pay a sum, not less
than one hundred dollars, nor exceeding five hundred-dollars, or
be imprisoned not leas than one year, nor exceeding three years,
at the discretion of the court before whom such conviction is
had.
4. - §24. That every person who, from and after the passage of
this act, shall procure, and advise, or assist, in the doing or
perpetration of any of the acts or crimes by this act forbidden,
shall be subject to the same pen-alties and punishments as the
persons are subject to, who shall actually do or perpetrate any
of the said acts or crimes, according, to the provision of this
act.
5.- §25. That every person who shall be imprisoned by a
judgment of court, under and by virtue of the twenty-first,
twenty-second, twenty-third, or, twenty-fourth sections of this
act, shall be kept at hard labor during the period of such
imprisonment.
MAILE, ancient English law. A small piece of money; it also
signified a rent, because the rent was paid with maile.
MAIM, pleadings. This is a technical word necessary to be
introduced into all indictments for mayhem; the words
"feloniously did maim," must of necessity be inserted, because no
other word, or any circumlocution, will answer the same purpose.
4 Inst. 118; Hawk. B. 2, c. 23, s. 17, 18, 77; Hawk. B. 2, c.
25, s, 55; 1 Chit. Cr. Law, *244.
TO MAIM, crim. law. To deprive a person of such part of his
body as to ren- der him less able in fighting or defending
himself than he would have otherwise been. Vide Mayhem.
Bouvier's Law Dictionary : M1 : Page 4 of 202
MAINE. One of the new states of the United State's of America.
This state was admitted into the Union by the Act of Congress of
March 3, 1820, 3 Story's L. U . S. 1761, from and after the
fifteenth day of March, 1820, and is thereby declared to be one
of the United States of America, and admitted into the Union on
an equal footing with the original states in all respects
whatever.
2. The constitution of this state was adopted October 29th,
1819. The powers of the government are vested in three distinct
departments, the legislative, executive and judicial.
3. - 1. The legislative power is vested in two distinct
branches, a house of representatives and senate, each to have a
negative on the other, and both to be styled The legislature of
Maine. 1. The house of representatives is to consist of not less
than one hundred, nor more than two hundred members; to be
apportioned among the counties according to law; to be elected
by the quali-fied electors for one year from the next day
preceding the annual meeting of the legislature. 2. The senate
consists of not less than twenty, nor more than thirty-one
members, elected at the same time, and for the same term, as the
representatives, by the qualified electors of the districts into
which the state shall, from time to time, be divided. Art. 4,
part 2, s. 1. The veto power is given to the governor, by art. 4,
part 3, s. 2.
4. - 2. The supreme executive power of the state is vested in a
governor, who is elected by the qualified electors, and holds his
office one year from the first Wednesday of January in each year.
On the first Wednesday of January annually, seven persons,
citizens of the United States, and resident within the state, are
to be elected by joint ballot of the senators and representatives
in convention, who are called the council. This council is to
advise the governor in the executive part of government, art. 5,
part 2, s. 1 and 2.
5. - 3. The judicial power of the State is distributed by the
6th article of the constitution as follows:
6. - §1. The judicial power of this state shall be vested in a
supreme judicial court, and such other courts as the legislature
shall, from time to time, establish.
7. - §2. The justices of the supreme judicial court shall, at
stated times, receive a compensation, which shall not be
diminished during their continuance in office, but they shall
receive no other fee or reward.
8. - §3. They shall be obliged to give their opinion upon
important questions of law, and upon solemn occasions, when
required by the governor, council, senate, or house of
representatives.
9. - §4. All judicial officers; except justices of the peace,
shall hold their offices during good behaviour, but not beyond
the age of seventy years.
Bouvier's Law Dictionary : M1 : Page 5 of 202
10. - §5. Justices of the peace and notaries public shall hold
their offices during seven years, if they so long behave
themselves well, at the expiration of which term, they may be
re-appointed, or others appointed, as the public interest may
require.
11. - §6. The justices of the supreme judicial court shall bold
no office under the United States, nor any state, nor any other
office under this state, except that of justice of the peace.
For a history of the province of Maine, see 1 Story on the
Const. §82.
MAINOUR, crim. law. The thing stolen found in the hands of the
thief who has stolen it; hence when a man is found with
property which he has stolen, he is said to be taken with the
mainour, that is, it is found in his hands.
2. Formerly there was a distinction made between a larceny,
when the thing stolen was found in the hands of the criminal, and
when the proof depended upon other circumstances not quite so
irrefragable; the former properly was termed pris ove maynovere,
or ove mainer, or mainour, as it is generally written. Barr. on
the Stat. 315, 316, note:
MAINPERNABLE. Capable of being bailed; one for whom bail may
be taken; bailable.
MAINPERNORS, English law. Those persons to whom a man, is
delivered out of custody or prison, on their becoming bound for
his appearance.
2. Mainpernors differ from bail: a man's bail may imprison or
surrender him up before the stipulated day of appearance;
mainpernors can do neither, but are merely sureties for his
appearance at the day; bail are only sureties that the party be
answerable for all the special matter for which they stipulate;
mainpernors are bound to produce him to answer all charges
whatsoever. 3. Bl. Com. 128; vide Dane's Index, h. t.
MAINPRISE, Engl. law. The taking a man into friendly custody,
who might otherwise be committed to prison, upon security given
for his appearance at a time and place assigned. Wood's Inst. B.
4, c. 4.
2. Mainprise differs from bail in this, that a man's
mainpernors are barely his sureties, and cannot imprison him
themselves to secure his appearance, as his bail may, who are
looked upon as his gaolers, to whose custody he is committed.. 6
Mod. 231; 7 Mod. 77, 85, 98; Ld. Raym. 606; Bac. Ab. Bail in
Civil Cases; 4 Inst. 180. Vide Mainpernors. Writ of Mainprise;
and 15 Vin. Ab. 146; 3 Bl. Com. 128.
MAINTENANCE, crimes. A malicious, or at least, officious
interference in a suit in which the offender has no interest, to
assist one of the parties to it against the other, with money or
Bouvier's Law Dictionary : M1 : Page 6 of 202
advice to prosecute or defend the action, without any authority
of law. 1 Russ. Cr. 176.
2. But there are many acts in the nature of maintenance, which
become justifiable from the circumstances under which they are
done. They may be justi-fied, 1. Because the party has an
interest in the thing in variance; as when he has a bare
contingency in the lands in question, which possibly may never
come in esse. Bac. Ab. h. t. 2. Because the party is of kindred
or affinity, as father, son, or heir apparent, or husband or
wife. 3. Because the relation of landlord and tenant or master
and servant subsists between the party to the suit and the person
who assists him. 4. Because the money is given out of charity. 1
Bailey, S. C. Rep. 401. 5. Because the person assisting the party
to the suit is an attorney or counsellor: the assistance to be
rendered must, however, be strictly professional, for a lawyer is
not more justified in giving his client money than another man. 1
Russ. Cr. 179. Bac. Ab Mainte-nance: Bro. Maintenance. This
offence is punishable by fine and imprisonment. 4 Black Com. 124;
2 Swift's Dig. 328; Bac. Ab. h. t. Vide 3 Hawks, 86; 1 Greenl.
292; 11 Mass. 553 , 6 Mass. 421; 5 Pick. 359; 5 Monr. 413; 6
Cowen, 431; 4 Wend. 806; 14 John. R. 124; 3 Cowen, 647; 3
John. Ch. R. 508 7 D. & R. 846; 5 B. & C. 188.
MAINTENANCE, quasi contracts. The support which one person, who
is bound by law to do so, gives to another for his living; for
example, a father is bound to find maintenance for his children;
and a child is required by law to main-tain his father or mother
when they cannot support themselves, and he has ability to
maintain them. 1 Bouv. Inst. n. 284-6.
MAINTAINED, pleadings. This is a technical word, indispensable
in an indict- ment for maintenance, which no other word or
circumlocution will supply. 1 Wils. 325.
MAINTAINORS, criminal law. Those who maintain or support a
cause depending between others, not being retained as counsel or
attorney. For this they may be fined and imprisoned. 2 Swift's
Dig. 328; 4 Bl. Com. 124; Bac. Ab. Barrator.
MAISON DE DIEU. House of God. In England the term, borrowed
from the French, signified formerly a hospital, an almshouse, a
monastery. 39 Eliz. c. 5.
MAJESTY. Properly speaking, this term can be applied only to
God, for it signifies that which surpasses all things in grandeur
and superiority. But it is used to kings and emperors, as a title
of honor. It sometimes means power, as when we say, the majesty
of the people. See, Wolff, §998.
MAJOR, persons. One who has attained his full age, and has
acquired all his civil rights; one who is no longer a minor; an
adult.
MAJOR. Military language. The lowest of the staff officers; a
degree higher than captain.
Bouvier's Law Dictionary : M1 : Page 7 of 202
MAJOR GENERAL. A military officer, commanding a division or
number of regi- ments; the next in rank below a lieutenant
general.
MAJORES. The male ascendant beyond the sixth degree were so
called among the Romaus, and the term is still used in making
genealogical tables.
MAJORITY, persons. The state or condition of a person who has
arrived at full age. He is then said to be a major, in opposition
to minor, which is his condition during infancy.
MAJORITY, government. The greater number of the voters; though
in another sense, it means the greater number of votes given in
which sense it is a mere plurality. (q. v.)
2. In every well regulated society, the majority has always
claimed and exercised the right to govern the whole society, in
the manner pointed out by the fundamental laws and the minority
are bound, whether they have assented or not, for the obvious
reason that opposite wills cannot prevail at the same time, in
the same society, on the same subject. 1 Tuck. Bl. Com. App. 168,
172; 9 Dane's Ab. 37 to 43; 1 Story, Const. §330.
3. As to the rights of the majority of part owners of vessels,
vide 3 Kent, Com. 114 et seq. As to the majority of a church,
vide 16 Mass. 488.
4. In the absence of all stipulations, the general rule in
partnerships is, that each partner has an equal voice, and a
majority acting bonafide, have the right to manage the
partnership concerns, and dispose of the partnership property,
notwithstanding the dissent of the minority; but in every case
when the minority have a right to give an opinion, they ought to
be notified. 2 Bouv. Inst. n. 1954.
5. As to the majorities of companies or corporations, see
Angel, Corp. 48, et seq.; 3 M. R. 495. Vide, generally, Rutherf.
Inst. 249; 9 Serg. & Rawle, 99; Bro. Corporation, pl. 63; 15
Vin. Abr. 183, 184; and the article Authority; Plurality;
Quorum.
TO MAKE. English law. To perform or execute; as to make his
law, is to per- form that law which a man had bound himself to
do; that is, to clear himself of an action commenced against
him, by his oath, and the oaths of his neighbors. Old Nat. Br.
161. To make default, is to fail to appear in proper time. To
make oath, is to swear according to the form prescribed by law.
MAKER. This term is applied to one who makes a promissory note
and promises to pay it when due. He who makes a bill of exchange
is called the drawer, and frequently in common parlance and in
books of Reports we find the word drawer inaccurately applied to
the maker of a promissory note. See Promissory note.
MAKING HIS LAW. A phrase used to denote the act of a person who
wages his law. Bac. Ab. Wager of law, in pr.
Bouvier's Law Dictionary : M1 : Page 8 of 202
MALA FIDES. Bad faith. It is opposed to bona fides, good faith.
MALA PRAXIS, crim. law. A Latin expression, to signify bad or
unskilful practice in a physician or other professional person,
as a midwife, whereby the health of the patient is injured.
2. This offence is a misdemeanor (whether it be occasioned by
curiosity and experiment or neglect) because, it breaks the trust
which the patient has put in the physician, and tends directly to
his destruction. 1 Lord Raym. 213. See forms of indictment for
mala praxis, 3 Chitty Crim. Law, 863; 4 Wentw. 360; Vet. Int.
231; Trem. P. C. 242. Vide also, 2 Russ. on Cr. 288; 1 Chit.
Pr. 43; Com. Dig. Physician; Vin. Ab. Physician.
3. There are three kinds of mal practice. 1. Wilful mal
practice, which takes place when the physician purposely
administers medicines or performs an operation which he knows and
expects will result in danger or death to the individual under
his care; as, in the case of criminal abortion.
4. - 2. Negligent mal practice, which comprehends those cases
where there is no criminal or dishonest object, but gross
negligence of that attention which the situation of the patient
requires: as if a physician should administer medicines while in
a state of intoxication, from which injury would arise to his
patient.
5. - 3. Ignorant mal practice, which is the administration of
medicines, calculated to do injury, which do harm, and which a
well educated and scientific medical man would know were not
proper in the case. Besides the public remedy for mal practice,
in many cases the party injured may bring a civil action. 5 Day's
R. 260; 9 Conn. 209. See M. & Rob. 107; 1 Saund. 312, n. 2; l
Ld. Raym. 213; 1 Briand, Med. Leg. 50; 8 Watts, 355; 9 Conn.
209.
MALA PROHIBITA. Those things which are prohibited by law, and
therefore unlawful.
2. A distinction was formerly made in respect of contracts,
between mala prohibita and mala in se; but that distinction has
been exploded, and, it is now established that when the
provisions of an act of the legislature have for their object the
protection of the public, it makes no difference with respect to
contracts, whether the thing be prohibited alsolutely or under a
penalty. 5 B. & A 5, 340; 10 B. & C. 98; 3 Stark. 61; 13 Pick.
518; 2 Bing. N. C. 636, 646.
MALE. Of the masculine sex; of the sex that begets young; the
sex opposed to the female. Vide Gender; Man; Sex; Worthiest of
blood.
MALEDICTION, Eccles. law. A curse which was anciently annexed
to donations of lands made to churches and religious houses,
against those who should violate their rights.
Bouvier's Law Dictionary : M1 : Page 9 of 202
MALEFACTOR. He who bas been guilty of some crime; in another
sense, one who has been convicted of having committed a crime.
MALEFICIUM, civil law. Waste, damage, torts, injury. Dig. 5,
18, 1.
MALFEASANCE, contracts, torts. The unjust performance of some
act which the party had no right, or which he had contracted not
to do. It differs from mis-feasance, (q. v.) and nonfeasance.
(q. v.) Vide 1 Chit. Pr. 9; 1 Chit. Pl. 134.
MALICE, crim. law. A wicked intention to do an injury. 4 Mason,
R. 115, 505: 1 Gall. R. 524. It is not confined to the intention
of doing an injury to any particular person, but extends to an
evil design, a corrupt and wicked notion against some one at the
time of committing the crime; as, if A intended to poison B,
conceals a quantity of poison in an apple and puts it in the way
of B, and C, against whom he had no ill will, and who, on the
contrary, was his friend, happened to eat it, and die, A will be
guilty of murdering C with malice aforethought. Bac. Max. Reg.
15; 2 Chit. Cr. Law, 727; 3 Chit. Cr. Law,. 1104.
2. Malice is express or implied. It is express, when the party
evinces an intention to commit the crime, as to kill a man; for
example, modern duelling. 3 Bulstr. 171. It is implied, when an
officer of justice is killed in the discharge of his duty, or
when death occurs in the prosecution of some unlawful design.
3. It is a general rule that when a man commits an act,
unaccompanied by any circumstance justifying its commission, the
law presumes he has acted advisedly and with an intent to produce
the consequences which have ensued. 3 M. & S. 15; Foster, 255;
1 Hale, P. C. 455; 1 East, P. C. 223 to 232, and 340; Russ. &
Ry. 207; 1 Moody, C. C. 263; 4 Bl. Com. 198; 15 Vin. Ab. 506;
Yelv. 105 a; Bac. Ab. Murder and Homicide, C 2. Malice
aforethought is deliberate premedi-tation. Vide Aforethought.
MALICE, torts. The doing any act injurious to another without a
just cause.
2. This term, as applied to torts, does not necessarily mean
that which must proceed from a spiteful, malignant, or revengeful
disposition, but a conduct injurious to another, though
proceeding from an ill-regulated mind not sufficiently cautious
before it occasions an injury to another. 11 S. & R. 39, 40.
3. Indeed in some cases it seems not to require any intention
in order to make an act malicious. When a slander has been
published, therefore, the pro-per question for the jury is, not
whether the intention of the publication was to injure the
plaintiff, but whether the tendency of the matter published, was
so injurious. 10 B. & C. 472: S. C. 21 E. C. L. R. 117.
4. Again, take the common case of an offensive trade, the
melting of tallow for instance; such trade is not itself
unlawful, but if carried on to the annoyance of the neighboring
dwellings, it becomes unlawful with respect to them, and their
Bouvier's Law Dictionary : M1 : Page 10 of 202
inhabitants may maintain an action, and may charge the act of the
defendant to be malicious. 3 B. & C. 584; S. C. 10 E. C. L. R.
179.
MALICE AFORETHOUGHT, pleadings. In an indictment for murder,
these words, which have a technical force, must be used in
charging the offence; for without them, and the artificial
phrase murder, the indictment will be taken to charge
manslaughter only. Fost. 424; Yelv. 205; 1 Chit. Cr. Law, *242,
and the authorities and cases there cited.
2. Whenever malice aforethought is necessary to constitute the
offence, these words must be used in charging the crime in the
indictment. 2 Chit. Cr. Law, *787; 1 East, Pl. Or. 402. 2 Mason,
R. 91.
MALICIOUS. With bad, and unlawful motives; wicked.
MALICIOUS ABANDONMENT. The forsaking without a just cause a
husband by the wife, or a wife by her husband. Vide Abandonment,
Malicious.
MALICIOUS MISCHIEF. This expression is applied to the wanton or
reckless de- struction of property, and the wilful perpetration
of injury to the person. Alis. Prin. 448; 3 Dev. & Batt. 130; 8
Leigh, 719; 5 Ired. R. 364; 8 Port. 447; 2 Metc. 21; 3
Greenl. 177.
MALICIOUS PROSECUTION, or MALICIOUS ARREST, torts, or remedies.
These terms import a wanton prosecution or arrest, made by a
prosecutor in a criminal proceeding, or a plaintiff in a civil
suit, without probable cause, by a regular process and
proceeding, which the facts did not warrant, as appears by the
result.
2. This definition will be analysed by considering, 1. The
nature of the prosecution or arrest. 2. Who is liable under it.
3. What are malice and probable cause. 4. The proceedings. 5. The
result of the prosecution and afterwards, 6. The remedy.
3. - §1. Where the defendant commenced a criminal prosecution
wantonly and in other respects against law, he will be
responsible. Addis. R. 270; 12 Conn. 219. The prosecution of a
civil suit, when malicious, is a good cause of action, even when
there has been no arrest. 1 P. C. C. 210; 11 Conn. 582; 1 Wend.
345. But no action lies for commencing a civil action, though
without sufficient cause. 1 Penns. R. 235.
4. - §2. The action lies against the prosecutor and even
against a mere informer, when the proceedings are malicious. 5
Stew. & Port. 367. But grand jurors are not liable to an action
for a malicious prosecution, for information given by them to
their fellow jurors, on which a prosecution is founded. Hardin,
556. Such action lies against a plaintiff in a civil action who
ma- liciously sues out the writ and prosecutes it; 16 Pick. 453;
but an action does not lie against an attorney at law for
bringing the action, when regularly employed. 16 Pick. 478. See 6
Pick. 193.
Bouvier's Law Dictionary : M1 : Page 11 of 202
5. - §3. There must be malice and want of probable cause. 1
Wend. 140, 345; 7 Cowen, 281; 2 P. A. Browne, Appx. xlii;
Cooke, 90; Litt. Sel. Cas. 106; 4 Litt. 334; 3 Gil. & John.
377; 1 N. & M. 36; 12 Conn. 219; 3 Call. 446; 2 Hall, 315; 3
Mason, 112, 2 N. & M. 54,143. See Malice; Probable cause.
6. - §4. The Proceedings under which the original prosecution
or action was held, must have been regular, in the ordinary
course of justice, and before a tribunal having power to
ascertain the truth or falsity of the charge, and to punish the
supposed offender, the now plaintiff. 3 Pick. 379, 383. When the
proceedings are irregular, the prosecutor is a trespasser. 3
Blackf. 210 . See Regular and irregular process.
7. - §5. The malicious prosecution or action must be ended, and
the plain-tiff must show it was groundless, either by his
acquittal or by obtaining a final judgment in his favor in a
civil action. 1 Root, R. 553; 1 N. & M. 36; 2 N. & M. 54, 143;
7 Cowen, 715; 2 Dev. & Bat. 492.
8. - §6. The remedy for a malicious prosecution is an action on
the case to recover damages for the injury sustained. 5 Stew. &
Porter, 367; 2 Conn. 700; 11 Mass 500; 6 Greenl. 421; 3 Gill.
& John. 377. See Case; Regular and irregular process.
See, generally, Bull. N. P. 11; 1 Saund. 228; 12 Mod. 208; 1
T. R. 493 to 551; Bac. Ab. Actions on the case, H; Bouv. Inst.
Index, h. t.
MALUM IN SE. Evil in itself.
2. An offence malum in se is one which is naturally evil, as
murder, theft, and the like; offences at common law are
generally mala in sese.
3. An offence malum prohibitum, on the contrary, is not
naturally an evil, but becomes so in consequence of its being
forbidden; as playing at games, which being innocent before,
have become unlawful in consequence of being forbidden. Vide Bac.
Ab. Assumpsit, A, note; 2 Rolle's Ab. 355.
MALVEILLES. Ill-will. In some ancient records this word
signifies malicious practices, or crimes and misdemeaners.
MALVERSATION, French law. This word is applied to all
punishable faults committed in the exercise of an office, such as
corruptions, exactions, extortions and larceny. Merl. Repert. b.
t.
MAN. A human being. This definition includes not only the adult
male sex of the human species, but women and children; examples:
"of offences against man, some are more immediately against the
king, other's more immediately against the subject." Hawk. P. C.
book 1, c. 2, s. 1. Offences against the life of man come under
the general name of homicide, which in our law signifies the
killing of a man by a man." Id. book 1, c. 8, s. 2.
Bouvier's Law Dictionary : M1 : Page 12 of 202
2. In a more confined sense, man means a person of the male
sex; and sometimes it signifies a male of the human species
above the age of puberty. Vide Rape. It was considered in the
civil or Roman law, that although man and person are synonymous
in grammar, they had a different acceptation in law; all persons
were men, but all men, for example, slaves, were not persons, but
things. Vide Barr. on the Stat. 216, note.
MANAGER. A person, appointed or elected to manage the affairs
of another, but the term is more usually applied to those
officers of a corporation who are authorized to manage its
affairs. 1 Bouv. Inst. n. 190.
2. In banking corporations these officers are commonly called
directors, and the power to conduct the affairs of the company,
is vested in a board of directors. In other private corporations,
such as railroad companies, canal, coal companies, and the like,
these officers are called managers. Being agents, when their
authority is limited, they have no power to bind their principal
beyond such authority. 17 Mass. R. 29; 1 Greenl. R. 81.
3. The persons appointed on the part of the house of
representatives to prosecute impeachments before the senate, are
called managers.
MANBOTE. In a barbarous age, when impunity could be purchased
with money, the compensation which was paid for homicide was
called manbote.
MANCIPATIO, civil law. The act of transferring things called
res mancipi. (q. v.) This is effected in the presence of not less
than five witnesses, who must be Roman citizens and of the age of
puberty, and also in the presence of another person of the same
condition, who holds a pair of brazen scales, and hence is called
Libripens. The purchaser (qui mancipio accipit) taking hold of
the thing, says I affirm that this slave (homo) is mine, ex jure
quiritium, and he is purchased by me with this piece of money
(sas) and brazen scales. He then strikes the scales with the
piece of money and gives it to the seller as a symbol of the
price (quasi pretii loco.) The purchaser or person to whom the
mancipatio was made did not acquire the possession of the
mancipatio; for the acquisition of possession was a separate
act. Gaius. 1, 119; Id. iv. 181.
Both mancipatio and in jure cessio existed before the twelve
tables. Frag. Vat. 50. Mancipation no longer existed in the code
of Justinian, who took away all distinction between res mancipi
and nec mancipi. Smith's Dict. Gr. & Rom. Antiq. Verb. Mancipium;
Coop. Jus. 442.
MANDAMUS, practice. The name of a writ, the principal word of
which when the proceedings were in Latin, was mandamus, we
command.
2. It is a command issuing in the name of the sovereign
authority from a superior court having jurisdiction, and is
Bouvier's Law Dictionary : M1 : Page 13 of 202
directed to some person, corporation, or, inferior court, within
the jurisdiction of such superior court, requiring them to do
some particular thing therein specified, which appertains to
their office and duty, and which the superior court has
previously determined, or at least supposes to be consonant to
right and justice. 20 Pick. 484; 21 Pick. 258; Dudley, 37; 4
Humph. 437.
3. Mandamus is not a writ of right, it is not consequently
granted of course, but only at the discretion of the court to
whom the application for it is made; and this discretion is not
exercised in favor of the applicant, unless some just and useful
purpose may be answered by the writ. 2 T. R. 385; 1 Cowen's R.
501; 11 Shepl. 151; 1 Pike, 11.
4. This writ was introduced io prevent disorders from a failure
of justice; therefore it ought to be used upon all occasions
where the law has established no specific remedy, and where in
justice and good government there ought to be one. 3 Burr. R.
1267; 1 T. R. 148, 9.; 2 Pick. 414; 4 Pick. 68; 10 Pick. 235,
244; 7 Mass; 340; 3 Binn. 273; 5 Halst. 57; Cooke, 160; 1
Wend. 318; 5 Pet. 190; 1 Caines, R. 511; John. Cas. 181; 12
Wend. 183; 8 Pet. 291; 12 Pet. 524; 2 Penning. 1024; Hardin,
172; 7 Wheat. 534; 5 Watts. 152; 2 H. & M. 132; 3 H. & M. 1;
1 S. & R. 473; 5 Binn. 87; 3 Conn. 243; 2 Virg. Cas. 499; 5
Call. 548. Mandamus will not lie where the law has given another
specific remedy. 1 Wend. 318; 10 John. 484; 1 Cow. 417;
Coleman, 117; 1 Pet. 567; 2 Cowen, 444; 2 M'Cord, 170; Minor,
46; 2 Leigh, 165; Const. Rep. 165, 175, 703.
5. The 13th section of the act of congress of September, 24,
1789, gives the supreme court power to issue writs of mandamus in
cases warranted by the principles and usages of law, to any
courts appointed or persons holding office, under the authority
of the United States. The issuing of a mandamus to courts, is the
exercise of an appellate jurisdiction, and, therefore
constitutionally vested in the supreme court; but a mandamus
directed to a public officer, belongs to original jurisdiction,
and by the constitution, the exercise of original jurisdiction by
the supreme court is restricted to certain specified cases, which
do not comprehend a mandamus. The latter clause of the above
section, authorizing this writ to be issued by the supreme court,
to persons holding office under the authority of the United
States, is, therefore, not warranted by the constitution, and
void. 1 Cranch, R. 175.
6. The circuit courts of the United States may also issue writs
of mandamus, but their power in this particular, is confined
exclusively to those cases in which it may be necessary to the
exercise of their jurisdiction. 7 Cranch, R. 504; 8 Wheat. R.
598; 1 Paine's R. 453. Vide, generally, 3 Bl. Com. 110; Com.
Dig. h. t; Bac. Ab. h. t.; Vin. Ab. h. t.; Selw. N. P. h. t.;
Chit. Pr. h. t.; Serg. Const. Index, h. t.; Ang. on Corp.
Index, h. t.; 3 Chit. Bl. Com. 265 n. 7; 1 Kent. Com. 322;
Dane's Ab. Index, h. t.; 6 Watts & Serg. 386, 397; Bouv. Inst.
Index, h. t.; and the article "Courts of the United States."
Bouvier's Law Dictionary : M1 : Page 14 of 202
MANDANT. The principal in the contract of mandate is so called.
Story, Ag. §337.
MANDATARIUS. One who is entrusted with and undertakes to
perform a mandate. This word is used by the civilians in the same
sense that we use mandatary. Poth. du Mandat, n. 1.
MANDATARY, contracts. One who undertakes to perform a mandate.
Jones' Bailm. 53; Story on Bailm. 38. Dr. Halifax calls him
mandatee. Halif. Anal. Civ. Law, 70, §§16, 17.
2. It is the duty of a mere mandatory, it is said, to take
ordinary care of the property entrusted to him. Vide Negligence.
But it has been held that he is liable only for gross negligence.
14 S. & R. 275; 2 Hawks, R. 145; 2 Murph. R. 373; 3 Dana, R.
205; 3 Mason, R. 132; 11 Wend, R. 25; Wright, R. 598; 1 Bouv.
1st. n. 1073.
MANDATE, practice. A judicial command or precept issued by a
court or magi- trate, directing the proper officer to enforce a
judgment, sentence or decree. Jones'. Bailm. 52; Story on Bailm.
§137.
MANDATE. Mandatum or commission, contracts. Sir William Jones
defines a mandate to be a bailment of goods without reward, to be
carried from place to place, or to have some act performed about
them. Jones' Bailm. 52; 2 Ld. Raym. 909, 913. This seems more
properly an enumeration of the various sorts of mandates than a
definition of the contract. According to Mr. Justice Story, it is
a bailment of personal property, in regard to which the bailee
engages to do some act without reward. Bailm. §137. And Mr.
Chancellor Kent defines it to be when one undertakes, without
recompense, to do some act for the other in respect to the thing
bailed. Comm. 443. See, for other definitions, Story on Bailm.
§137; Pothier, Pand. lib. 17, tit. 1; Wood's Civ. Law, B. 3, c.
5, p. 242; Halifaz's Anal. of the Civ. Law, 70,; Code of Louis.
art. 2954; Code Civ. art. 1984; 1 Bouv. Inst. n. 1068.
2. From the very term of the definition, three things are
necessary to create a mandate. First, that there should exist
something which should be the matter of the contract; secondly,
that it should be done gratuitously; and thirdly, that the
parties. should voluntarily intend to enter into the contract.
Poth. Pand. Lib. 17, tit. 1, p. 1, §1; Poth. Contr. de Mandat,
c. 1, §2.
3. There is no particular form or manner of entering into the
contract of mandate, prescribed either by the common law, or by
the civil law, in order to give it validity. It may be verbal or
in writing; it may be express or implied it may be in solemn
form or in any other manner. Story on Bailm. §160. The contract
may be varied at the pleasure of the parties. It may be absolute
or conditional, general or special, temporary or permanent.
Wood's Civ. Law, 242; 1 Domat, B. 1. tit. 15, §1, 6, 7, 8;
Poth. Contr. de Mandat, c. 1, §3, n. 34, 35, 36.
4. As to the degree of diligence which the mandatory is bound
Bouvier's Law Dictionary : M1 : Page 15 of 202
to exercise, see Mandatory; Negligence; Pothier, Mandat, h. t;
Louis. Code, tit. 15 Code Civ. t. 13, c. 2 Story on Bailm. §163
to 195; 1 Bouv. Inst. n. 1073.
5. As to the duties and obligations of the mandator, see Story
on Bailm. 196 to 201; Code Civ. tit. 13, c. 3; Louis. Code,
tit. 15, c. 4; 1 Bouv. Inst. n. 1074.
6. The contract of mandate may be dissolved in various ways:
1. It may be dissolved by the mandatary at any time before he has
entered upon its execution; but in this case, as indeed in all
others, where the contract is dissolved before the act is done
which the parties intended, the property bailed is to be restored
to the mandator.
7. - 2. It may be dissolved by the death of the mandatory;
for, being founded in personal confidence, it is not presumed to
pass to his representatives, unless there is some special
stipulation to that effect. But this principally applies to cases
where the mandate remains wholly unexecuted; for if it be in
part executed, there may in some cases, arise a personal
obligation on the part of the representatives to complete it.
Story on Bailm. §202.; 2 Kent's Com. 504, §4; Pothier, Mandat,
c. 4, §1, n. 101.
8. Whenever the trust is of a nature which requires united,
advice, confidence and skill of all, and is deemed a joint
personal trust to all, the death of one joint mandatary dissolves
the contract as to all. See Story on Bailm. §202; Co. Litt. 112,
b; Id. 181, b; Com. Dig. Attorney, C 8; Bac. Abr. Authority,
C; 2 Kent's Com. 504 7 Taunt. 403.
9. The death of the mandator, in like manner, puts an end to
the contract. See 2 Mason's R. 342; 8 Wheat. R. 174; 2 Kent's
Com. 507; 1 Domat, B. 1, tit. 15, §4, n. 6, 7, 8; Pothier,
Contract de Mandat, c. 4, §2, n. 103. But although an unexecuted
mandate ceases with the death of the mandator, yet, if it be
executed in part at that time, it is binding to that extent, and
his representatives must indemnify the mandatory. Story on Bailm.
§§204, 205.
10. - 3. The contract of mandate may be dissolved by a change
in the state of the parties; as if either party becomes insane,
or, being a woman, marries before the execution of the mandate.
Story on Bailm. §206; 2 Roper, Husb. and Wife, 69, 73; Salk.
117; Bac. Abr. Baron and Feme, E; 2 Kent's Com. 506,
11. - 4. It may be dissolved by a revocation of the authority,
either by operation of law, or by the act of the mandator.
12. It ceases by operation of law when the power of the
mandator ceases over the subject-matter; as, if he be a
guardian, it ceases, as to his ward's property, by the
termination of the guardianship. Pothier, Contract de Mandat, c.
4, §4, n. 112.
13. So, if the mandator sells the property, it ceases upon the
Bouvier's Law Dictionary : M1 : Page 16 of 202
sale, if it be made known to the mandatory. 7 Ves. jr. 276;
Story on Bailm. §207.
14. By the civil law the contract of mandate ceases by the
revocation of the authority. Story on Bailm. §208; Code Civ.
art. 2003 to 2008; Louis, Code, art. 2997.
15. At common law, the party giving an authority is generally
entitled to revoke it. See 5 T. R. 215; Wallace's R. 126; 5
Binn. 316. But, if it be given as a part of a security, as if a
letter of attorney be given to collect a debt, as a security for
money advanced, it is irrevocable by the party, although revoked
by death. 2 Mason's R. 342; 8 Wheat. 174; 2 Esp. R. 365; 7
Ves. 28; 2 Ves. & Bea. 51; 1 Stark. R. 121; 4 Campb. 272.
MANDATE, civil law. Mandates were the instructions which the
emperor addressed to public functionaries, which were to serve as
rules for their conduct. 2. These mandates resembled those of the
pro-consuls, the mandata jurisdictio, and were ordinarily binding
on the legates or lieutenants of the emperor of the imperial
provinces, and, there they had the authority of the principal
edicts. Sav. Dr. Rom. ch. 3, §24, n. 4.
MANDATOR, contracts. The person employing another to perform a
mandate. Story on Bailm. §138; 1 Brown, Civ. Law, 382; Halif.
Anal. Civ. Law, 70.
MANDAVI BALLIVO, English law. The return made by a sheriff,
when he has committed the execution of a writ to a bailiff of a
liberty, who has the right to execute the writ.
MANHOOD. The ceremony of doing homage by the vassal to his lord
was de- nominated homagium or manhood, by the feudists. The
formula used was devenio vester homo, I become you Com. 54. See
Homage.
MANIA, med. jur. This subject will be considered by examining
it, first, in a medical point of view; and, secondly, as to its
legal consequences.
2. - §1. Mania may be divided into intellectual and moral.
1. Intellectual mania is that state of mind which is
characterised by certain hallucinations, in which the patient is
impressed with the reality of facts or events which have never
occurred, and acts in accordance with such belief; or, having
some notion not altogether unfounded, carries it to an ex-
travagant and absurd length. It may be considered as involving
all or most of the operations of the understanding, when it is
said to be general; or as be-ing confined to a particular idea,
or train of ideas, when it is called partial.
3. These will be separately examined. 1st. General intellectual
mania is a disease which presents the most chaotic confusion into
which the human mind, can be involved, and is attended by greater
disturbance of the functions of the body than any other.
According to Pinel, Traite d'Alienation Mentale, p. 63, "The
Bouvier's Law Dictionary : M1 : Page 17 of 202
patient sometimes keeps his head elevated and his looks fixed on.
high; he speaks in a low voice, or utters cries and
vociferations without any apparent motive; he walks to and fro,
and sometimes arrests his steps as if fixed by the sentiment of
admiration, or wrapt up in profound reverie. Some insane persons
display wild excesses of merriment, with immoderate bursts of
laughter. Sometimes also, as if nature delighted in contrasts,
gloom and taciturnity prevail, with involuntary showers of tears,
or the anguish of deep sorrow, with all the external signs of
acute mental suffering. In certain cases a sudden reddening of
the eyes and excessive loquacity give presage of a speedy
explosion of violent madness and the urgent necessity of a strict
confinement. One lunatic, after long intervals of calmness, spoke
at first with volubility, uttered frequent shouts of laughter,
and then shed a torrent of tears; experience had taught the
necessity of shutting him up immediately, for his paroxysms were
at such times of the greatest violence. "Sometimes, however, the
patient is not altogether devoid of intelligence; answers some
questions very appropriately, and is not destitute of acuteness
and ingenuity. The derangement in this form of mania is not
confined to the intellectual facul-ties, but not unfrequently
extends to the moral powers of the mind.
4. - 2d. Partial intellectual mania is generally known by the
name of monomania. (q. v.) In its most usual and simplest form,
the patient has conceived some single notion contrary to common
sense and to common experience, generally dependent on errors of
sensation; as, for example, when a person believes that he is
made of glass, that animals or men have taken their abode in his
stomach or bowels. In these cases the understanding is frequently
found to be sound on all subjects, except those connected with
the hallucination. Sometimes, instead of being limited to a
single point, this disease takes a wider range, and there is a
class of cases, where it involves a train of morbid ideas. The
patient then imbibes some notions connected with the various
relations of persons, events, time, space, &c., of the most
absurd and unfounded nature, and endeavors, in some measure, to
regulate his conduct accordingly; though, in most respects, it
is grossly inconsistent with his delusion.
5. Moral mania or moral insanity, (q. v.) is divided into,
first, general, where all the moral faculties are subject to a
general disturbance and secondly, partial, where one or two only
of the moral powers are perverted.
6. These will be briefly and separately examined. 1st. It is
certain that many individuals are living at large who are
affected, in a degree at least, by general moral mania. They are
generally of singular habits, wayward temper, and eccentric
character; and circumstances are frequently attending them which
induce a belief that they are not altogether sane. Frequently
there is a hereditary tendency to madness in the family; and,
not seldom, the individual himself has at a previous period of
life sustained an attack of a decided character: his temper has
undergone a change, he has become an altered man, probably from
the time of the occurrence of something which deeply affected
him, or which deeply affected his bodily constitution. Sometimes
Bouvier's Law Dictionary : M1 : Page 18 of 202
these alterations are imperceptible, at others, they are sudden
and immediate. Individuals afflicted with this disease not
unfrequently "perform most of the common duties of life with
propriety, and some of them, indeed, with scrupulous exactness,
who exhibit no strongly marked features of either temperament, no
traits of superior or defective mental endowment, but yet take
violent an- tipathies, harbor unjust suspicions, indulge strong
propensities, affect singularity in dress, gait, and phraseology;
are proud, conceited, and ostentatious; easily excited and with
difficulty appeased; dead to sensi- bility, delicacy, and
refinement; obstinately riveted to the most absurd opinions;
prone to controversy, and yet incapable of reasoning; always the
hero of their own tale, using hyperbolic, high flown language to
express the most simple ideas, accompanied by unnatural
gesticulation, inordinate ac- tion, and frequently by the most
alarming expression of countenance. On some occasions they
suspect sinister intentions on the most trivial grounds; on
others are a prey to fear and dread from the most ridiculous and
imaginary sources; now embracing every opportunity of exbibiting
romantic courage and feats and hardihood, then indulging
themselves in all manner of excesses. Persons of this
description, to the casual observer, might appear actuated by a
bad heart, but the experienced physician knows it is the head
which is defective. They seem as if constantly affected by a
greater or less degree of stimulation from intoxicating liquors,
while the expression of countenance furnishes an infallible proof
of mental disease. If subjected to moral re- straint, or a
medical regimen, they yield with reluctance to the means
proposed, and generally refuse and resist, on the ground that
such means are unnecessary where no disease exists; and when, by
the system adopted, they are so far recovered, as to be enabled
to suppress the exhibition of their former peculiarities, and are
again fit to be restored to society, the physician, and those
friends who put them under the physician's care, are generally
ever after objects of enmity, and frequently of revenge." Cox,
see cases of this Pract. Obs. on Insanity, kind of madness cited
in Ray, Med. Jur. §112 to 119; Combe's Moral Philos. lect. 12.
7 .- 2d. Partial moral mania consists in the derangement of one
or a few of the affective faculties, the moral and intellectual
constitution in other respects remaining in a sound state. With a
mind apparently in full possession of his reason, the patient
commits a crime, without any extraordinary temptation, and with
every inducement to refrain from it, he appears to act without a
motive, or in opposition to one, with the most perfect
consciousness of the impropriety, of his conduct, and yet he
pursues perseveringly his mad course. This disease of the mind
manifests itself in a variety of ways, among which may be
mentioned the following: 1. An irresistible propensity to steal.
2. An inordinate propensity to lying. 3. A morbid activity of the
sexual propensity. Vide Erotic Mania. 4. A morbid propensity to
commit arson. 5. A morbid activity of the propensity to destroy.
Ray, Med. Jur. ch. 7.
8. - §2. In general, persons laboring under mania are not
responsible nor bound for their acts like other persons, either
in their contracts or for their crimes, and their wills or
Bouvier's Law Dictionary : M1 : Page 19 of 202
testaments are voidable. Vide Insanity; Moral Insanity. 2
Phiilim. Ecc. R. 69; 1 Hagg. Cons: R. 414; 4 Pick. R. 32; 3
Addams, R. 79; 1 Litt. R. 371.
MANIA A POTU. Insanity arising from the use of spirituous
liquors. Vide Delirium Tremens.
MANIFEST, com. law. A written instrument containing a true
account of the cargo of a ship or commercial vessel.
2. The Act of March 2, 1799, s. 23, requires that when goods,
wares, or mer- chandise, shall be brought into the United States,
from any foreign port or place, in any ship or vessel, belonging,
in whole or in part to a citizen or inhabitant of the United
States, the manifest shall be in writing, signed by the master of
the vessel, and that it shall contain the names of the places
where the goods in such manifest mentioned, shall have been
respectively taken on board, and the places within the United
States, for which they are respec tively consigned, particularly
noticing the goods destined for each place, respectively; the
name, description, and build of such vessel, and her true
admeasurement or tonnage, the place to which she belongs, with
the name of each owner, according to her register, the name of
her master, and a just and particular account of the goods so
laden on board, whether in package or stowed loose, of any kind
whatsoever, with the marks and numbers on each package, the
numbers and descriptions of the packages in words at length,
whether leaguer, pipe, butt, puncheon, hogshead, barrel, keg,
case, bale, pack, truss, chest, box, bandbox, bundle, parcel,
cask, or package of any kind, describing each by its usual
denomination; the names of the persons to whom they are
respectively consigned, agreeably to the bills of lading, unless
when the, goods are consigned to order, when it shall be so
expressed; the names of the several passengers on; board,
distinguishing whether cabin or steerage passengers, or both,
with their baggage, specifying the number and description of
packages belonging to each, respectively; together with an
account of the remaining sea stores, if any. And if any
merchandise be imported, destined for different districts, or
ports, the quantities and packages thereof shall be inserted in
successive order in the manifest; aud all spirits, wines aud
teas, constituting the whole or any part of the cargo of any
vessel, shall be inserted in successive order, distinguishing the
ports to which they may be destined, and the kinds, qualities and
quantities thereof; and if merchandise be imported by citizens
or inhabitants of the United States, in vessels other than of the
United States, the manifests shall be of the form and shall
contain the particulars aforesaid, except that the vessel shall
be specially described as provided by a form in the act. 1
Story's Laws, 593, 594.
3. The want of a manifest, where one is required, or when it is
false, is severely punished.
MANIFEST, evidence. That which is clear and requires no proof;
that which is noto- rious. See Notoriety.
Bouvier's Law Dictionary : M1 : Page 20 of 202
MANIFESTO. A solemn declaration, by the constituted authorities
of a nation, which contains the reasons for its public acts
towards another.
2. On the declaration of war, a manifesto is usually issued in
which the nation declaring the war, states the reasons for so
doing. Vattel, liv. 3, c. 4, §64; Wolff, §1187. See
Anti-Manifesto.
MANKIND. Persons of the male sex; but in a more general sense,
it includes persons of both sexes; for example, the statute of
25 Hen. VIII., c. 6, makes it felony to commit, sodomy with
mankind or beast. Females as well as males axe included under the
term mankind. Fortesc. 91; Bac. Ab. Sodomy. See Gender.
MANNER AND FORM, pleading. After traversing any allegation in
pleading, it is usual to say "in manner and form as he has in his
declaration in that behalf alleged," which is as much as to
include in the traverse, not only the mere fact opposed to it,
but that in the manner and form in which it is stated by the
other party. These words, however, only put in issue the
substantial statement of the manner of tho fact traversed, and do
not extend to the time, place, or other circumstances attending
it, if they were not originally material and necessary to be
proved as laid. 3 Bouv. Inst. p. 297. See Modo et forma.
MANNOPUS. An ancient word which signifies goods taken in the
hands of an ap- prehended thief.
MANOR, estates. This word is derived from the French manoir,
and signifies, a house, residence, or habitation. At present its
meaning is more enlarged, and includes not only a dwelling-house,
but also lands. Vide Co. Litt. 58, 108; 2 Roll. Ab. 121 Merl.
Repert. mot Manoir. See Serg. Land Laws of Pennsyl. 195.
2. By the English law, a manor is a tract of land originally
granted by the king to a person of rank, part of which was given
by the grantee to his followers, and the rest lie retained under
the name of his demesnes; that which remained uncultivated was
called the lord's waste, and served for public roads and common
of pasture for the lord and his tenants.
MANSION. This term is synonymous with house. (q. v.) 1 Chit.
Pr. 167; 2 T. R. 502; 1 Tho. Co. Litt. 215, n. 35; 9 B. & C.
681; S. C. 17 E. C. L. R. 472, and the cases there cited; Com.
Dig. Justices, P 5; 3 Serg. & Rawle, 199. A portion only of a
building may come under the description of a mansion-house. 1
Leach, 89, 428; 1 East, P. C. C. 15, s. 19. 2 Bouv. Inst. n.
1571, note.
MANSLAUGHTER, crim. law. The unlawful killing of another
without malice either express or implied. 4 Bl. Com. 190 1 Hale,
P. C. 466. The distinctions between manslaughter and murder,
consists in the following. In the former, though the act which
occasions the death be unlawful, or likely to be attended with
bodily mischief, yet the malice, either express or implied, which
is the very essence of murder, is presumed to be wanting in
manslaughter. 1 East, P. C. 218 Foster, 290.
Bouvier's Law Dictionary : M1 : Page 21 of 202
2. It also differs from murder in this, that there can be no
accessaries before the fact, there having been no time for
premeditation. 1 Hale, P. C. 437; 1 Russ. Cr. 485. Manslaugbter
is voluntary, when it happens upon a sudden heat; or
involuntary, when it takes place in the commission of some
unlawful act.
3. The cases of manslaughter may be classed as follows those
which take place in consequence of, 1. Provocation. 2. Mutual
combat. 3. Resistance to public officers, &c. 4. Killing in the
prosecution of an unlawful or wanton act. 5. Killing in the
prosecution of a lawful act, improperly performed, or performed
without lawful authority.
4. - 1. The provocation which reduces the killing from murder
to manslaughter is an answer to the presumption of malice which
the law raises in every case of homicide; it is therefore no
answer when express malice is proved. 1 Russ. Cr, 440; Foster,
132; 1 East, P. C. 239; and to be available the provocation
must have been reasonable and recent, for no words or slight
provocation will be sufficient, and if the party, has had time to
cool, malice will be inferred.
5. - 2. In cases of mutual combat, it is generally manslaughter
only when one of the parties is killed. When death ensues from
duelling the rule is different, and such killing is murder.
6. - 3. The killing of an officer by resistance to him while
acting under lawful authority is murder; but if the officer be
acting under a void or illegal authority, or out of his
jurisdiction, the killing is manslaughter, or excusable homicide,
according to the circumstances of the case. 1 Moody, C. C. 80,
132; 1 Hale, P. C. 458; 1 East, P. C. 314; 2 Stark. N. P. C.
205; S. C. 3 E. C. L. R. 315.
7. - 4. Killing a person while doing an act of mere wantonness,
is manslaughter as, if a person throws down stones in a coal-pit,
by which a man is killed, although the offender was only a
trespasser. Lewin, C. C. 179.
8. - 5. When death ensues from the performance of a lawful act,
it may, in consequence of the negligence of the offender, amount
to manslaughter. For instance, if the death has been, occasioned
by negligent driving. 1 East, P. C. 263; 1 C. & P. 320 S. C. 9
E. C. L. R. 408; 6 C. & P. 629; S. C. 25 E. C. L. R. 569.
Again, when death ensues, from the gross negligence of a medical
or surgical practitioner, it is manslaughter. 1 Hale, P. C. 429;
3 C. & P. 632; S. C. 14 E, C. L. R. 495.
MANSTEALING. This word is sometimes used synonymously with
kidnapping. The latter is more technical. 4 Bl. Com. 219.
MANU FORTI. With strong hand. (q. v.) This term is used in
pleading in cases of forcible entry, and no other words are of
equal import. Dane's Ab. ch. 132, a. 6; ch. 203, a. 12.
Bouvier's Law Dictionary : M1 : Page 22 of 202
MANU OPERA. This has the same meaning with mannopus. (q. v.)
MANUAL. That which is employed or used by the hand, of which a
present profit may be made. Things in the manual occupation of
the owner cannot be distrained for rent. Vide Tools.
MANUCAPTIO, practice. In the English law it is a writ which
lies for a man taken on suspicion of felony and the like, who
cannot be admitted to bail by the sheriff, or others having power
to let to mainprise. F. N. B. 249.
MANUCAPTORS. The same as mainpernors. (q. v.)
MANUFACTURE. This word is used in the English and American
patent laws. This term includes two classes of things; first,
all machinery which is to be used and is not the object of sale;
and, secondly, substances (such, for example, as medicines)
formed by chemical processes, when the vendible substance is the
thing produced, and that which operates preserves no permanent
form. In the first class, the machine, and, in the second the
substance produced, is the subject of the patent. 2 H. Bl. 492.
See 8 T. R. 99; 2 B. & A. 349; Day. Pat. Cas. 278; Webst. on
Pat. 8; Phil. on Pat. 77; Perp. Manuel des Inv. c. 2, s. 1;
Renouard, c. 5, s. 1; Westminster Review, No. 44, April 1835, p.
247; 1 Bell's Com., B. 1, part 2, c. 4, s. 1, p. 110, 6th ed.
MANUMISSION, contracts. The agreement by which the owner or
master of a slave sets him free and at liberty; the written
instrument which contains this agreement is also called a
manumission.
2. In the civil law it was different from emancipation, which,
properly speaking, was applied to the liberation of children from
paternal power. Inst. liv. 1, t. 5 & 12; Co. Litt. 137, a;
Dane's Ab. h. t.
MANURE, Dung. When collected in a heap, it is considered as
personal property, but, when spread, it becomes a part of the
land and acquires the character of real estate. Alleyn, 31; 2
Ired. R. 326.
MANUS. Anciently signified the person taking an oath as a
compurgator. The use of this word probably came from the party
laying his hand on the New Testament. Manus signifies, among the
civilians, power, and is frequently used as synonymous with
potestas. Lec. El. Dr. Rom. §94.
MANUSCRIPT. A writing; a writing which has never been printed.
2. The act of congress securing to authors a copyright passed
February 3, 1831, sect. 9, protects authors in their manuscripts,
and renders any person who shall unlawfully publish a manuscript
liable to an action, and authorizes the courts to enjoin the
publisher. See Copyright. The right of the author, to his
manuscripts, at common law, cannot be contested. 4 Burr. 2396; 2
Eden, Ch. R. 329; 2 Story, R. 100; 2 Atk. 342; Ambl. 694; 2
Bouvier's Law Dictionary : M1 : Page 23 of 202
B. & A. 290; 2 Story, Eq. Jur. §943; Eden, Inj. 322; 2 B. & A.
298; 2 Bro. P. C. (Toml ed.) 138; 4 Vin. Ab. 278; 2 Atk. 342;
2 Ves. & B. 23. These rights will be considered as abandoned if
the author publishes his manuscripts, without securing the
copyright under the acts of congress. See Bouv. Inst. Index, h.
t.; Copyright.
MARAUDER. One who, while employed in the army as a soldier,
commits a larceny or robbery in the neighborhood of the camp, or
while wandering away from the army. Merl. Repert. h. t.
MARC-BANCO. The name of a coin. The marc-banco of Hamburg, as
money of account, at the custom-house, is deemed and taken to be
of the value of thirty-five cents. Act of March 3, 1843.
MARCHES, Eng. law. This word signifies the limits, or confines,
or borders. Bac. Law Tracts, tit. Jurisdiction of the. Marches,
p. 246. It was applied to the limits between England and Wales or
Scotland. In Scotland the term marches is applied to the
boundaries between private properties.
MARETUM. Marshy ground overflowed by the sea or great rivers.
Co. Litt. 5.
MARINARIUS. An ancient word which signified a mariner or
seaman; in England marinarius capitaneus, was the admiral or
warden of the ports.
MARINE. Whatever concerns the navigation of the sea, and forms
the naval power of a nation is called its marine.
MARINE CONTRACT. One which relates to business done or
transacted upon the sea and in sea ports, and over which the
courts of admiralty have jurisdiction concurrent with the courts
of common law; such contracts include according to civilians and
jurists among other things, charter parties, affreightments,
marine hypothecations, contracts for the marine service in the
building, re-pairing, supplying and navigating ships; contracts
and quasi contracts respec- ting averages, contributions and
jettisons, and policies of insurance. 2 Gall. R. 398, where Judge
Story gave a very learned opinion on the subject.
MARINE INSURANCE, contracts. A contract by which one party, for
a stipulated premium, undertakes to indemnify the other, against
all perils or sea risks, to which his ship; freight or cargo, or
some of them, may be exposed, during a certain voyage or fixed
period of time. 1 Bouv. Inst. n. 1175, et seq. See Insurance
Marine.
MARINE INTEREST, contracts. A compensation paid for the use and
risk of money loaned on respondentia and bottomry; provided the
money be loaned and put in risk, there is no limit as to the
amount which may be lawfully charged by the lender. 2 Marsh. Ins.
749; Hall on Mar. Loans; Pothier, Pret a. la Grosse, n. 19; 1
Stuart's (L. C.) R. 130.
MARINE LEAGUE. A measure equal to the twentieth part of a
degree. Bouch. Inst. n. 1845, not. Vide Cannon Shot; Sea.
Bouvier's Law Dictionary : M1 : Page 24 of 202
MARINER. One whose occupation is to navigate vessels on the
sea. Vide Seamen Shipping articles.
2. By act of congress, 1 Story, Laws of U. S., ch. 56, s. 4, p.
109, it is provided, that no sum exceeding one dollar shall be
recovered from any seaman or mariner (in the merchant service,)
by any person, for any debt contracted during the time such
seaman or mariner shall actually belong to any ship or vessel,
until the voyage for which such seaman or mariner engaged, shall
be ended.
MARITAGIUM. Anciently that portion which was given with a
daughter in marriage.
2. During the existence of the feudal law, it was the right
which the lord of the fee had, under certain tenures, to dispose
of the daughters of his vassal in marriage. By this word was also
understood marriage. Beames' Glanv. 138, n; Bract. 21 a; Spelm.
Gl. ad voc.; 2 Bl. Com. 69; Co. Litt. 21 b, 76 a.
MARITAL. That which belongs to marriage; as marital rights,
marital duties.
2. Contracts made by a feme sole with a view to deprive her
intended husband of his marital rights, with respect to her
property, are a fraud upon him, and may be set aside in equity.
By the marriage, the husband assumes the duty of paying her
debts, contracted previous to the coverture, and of supporting
her during its existence; and he cannot, therefore, be
fraudulently deprived, by the intended wife, of those rights
which enable him to perform the duties which attach to him. 2
Cha. R. 42; Newl. Contr. 424; 1 Vern. 408; 2 Vern. 17; 2 P.
Wms. 357, 674; 2 Bro. C. C. 345; 1 Ves. jr. 22; 2 Cox, R. 28;
2 Beav. 528; 2 Ch. R. 81; White's. L. C. in Eq. *277; 1 Hill,
Ch. R. 1, 4; 13 Maine, R. 124; 1 McMull. Eq. R. 237 3 Iredell's
Eq. R. 487; 4 Wash. C. C. R. 224.
MARITAL PORTION. In Louisiana, this name is given to that part
of a deceased husband's estate, to which the widow is entitled.
Civil Code, 334, art. 55; 3 Mart. N. S. 1.
MARITIME. That which belongs to or is connected with the sea.
MARITIME CAUSE. Maritime causes are those arising from maritime
contracts, whether made at sea or on land, that is, such as
relate to the commerce, business or navigation of the sea; as,
charter parties, affreightments, marine loans, hypothecations,
contracts for maritime service in building, repairing, supplying
and navigating ships, contracts and quasi contracts respecting
averages, contributions and jettisons; contracts relating to
marine insurance, and those between owners of ships. 3 Bouv.
Inst. n. 2621.
2. There are maritime causes also for torts and injuries
committed at sea.
Bouvier's Law Dictionary : M1 : Page 25 of 202
3. In general, the courts of admiralty have a concurrent
jurisdiction with courts of law, of all maritime causes: and in
some cases they have exclusive jurisdiction.
MARITIME CONTRACT. One which relates to the navigation of the
sea.
2. The admiralty has jurisdiction in case of the breach of such
contract, whether it has been entered into on land or at sea. 4
Wash. C. C. R. 453; see 2 Gallis. 465; 2 Sumn. 1; Gilp. 529.
MARITIME LAW. That system of law which relates to the affairs
of the sea, such as seamen, ships, shipping, navigation, and the
like.
MARITIME LOAN. A contract or agreement by which one, who is the
lender, lends to another, who is the borrower, a certain sum of
money, upon condition that if the thing upon which the loan has
been made, should be lost by any peril of the sea, or vis major,
the lender shall not be repaid, unless what remains shall be
equal to the sum borrowed; and if the thing arrive in safety, or
in case it shall not have been injured, but by its own defects or
the fault of the master or mariners, the borrower shall be bound
to return the sum borrowed, together with a certain sum agreed
upon as the price of the hazard incurred. Emer. Mar. Loans, c. 1,
s. 2; Poth. h. t. Vide Bottomry; Gross Adventure; Interest,
maritime; Respondentia.
MARITIME PROFIT, mar. law. The French writers use the term
maritime profit to signify any profit derived from a maritime
lean. Vide Interest maritime.
MARK. This term has several acceptations. 1. It is a sign
traced on paper or parchment, which stands in the place of a
signature, usually made by persons who cannot write. 2 Cart. R.
324; M. & M. 516; 12 Pet. 150; 7 Bing. 457; 2 Ves. 455; 1 V.
& B. 362; 1 Ves., jr. 11. A mark is now held to be a good
signature, though the party was able to write. 8 Ad. & El. 94; 3
Nev. & Per. 228; 3 Curt. 752; 5 John. 144. Vide Subscription.
2. - 2. It is the sign, writing or ticket put upon manufactured
goods to distinguish them from others. Poph. R. 144; 3 B & C.
541; 2 Atk. R. 485; 2 V. & B. 218; 3 M. & C. 1; Ed. Inj. 814.
Vide Trade Marks.
3. - 3. Mark or marc, denotes a weight used in several parts of
Europe, and for several commodities, especially gold and silver.
When gold and silver are sold by the mark, it is divided into
twenty-four carats.
4. - 4. Mark is also in England a money of accounts, and in
some other countries a coin. The English marc is two-thirds of a
pound sterling, or 13s. 4d., and the Scotch mark is of equal
value in Scotch money of account. Encyc. Amer. h. t.
MARKET. A public place appointed by public authority, where all
Bouvier's Law Dictionary : M1 : Page 26 of 202
sorts of things necessary for the subsistence, or for the
conveniences of life, are sold.
2. Markets are generally regulated by local laws.
3. By the term market is also understood the demand there is
for any particular article; as, the cotton market in Europe is
dull. Vide 15 Vin. Ab. 42; Com. Dig. h. t.
MARKET OVERT, Engl. law. Market overt is an open or public
market; that is, a place appointed by law or custom for the sale
of goods and chattels at stated times in public.
2. In London, every day except Sunday, is market day. In the
country, particular days are fixed for market days. 2 Bl. Com.
449.
3. It is a general rule that sales of vendible articles made in
market overt, are good not only between the parties, but are also
binding on all those who have any property or right therein. Id.
2 Chitt. Com. Law, 148 to 154; Com. Dig. Market, E; Bac. Abr.
Fairs and Market, E; 5 B. & A. 624; Dane's Abr. chap. 45, a 2.
4. There is no law recognizing the effect of a sale in market
overt in Pennsylvania. 3 Yeates R. 347; 5 Serg. & Rawle, 130;
in New York; 1 Johns, 480; in Massachusetts; 8 Mass. R. 521;
14 Mass. R. 500; in Ohio; 5 Ohio, R. 203; nor in Vermont. 1
Tyl. R. 341; nor indeed in any of the United States. 10 Pet.
161.
MARLEBRIDGE, STATUTE OF. The name of a statute passed the 52
Hen. III, A. D. 1267, so called because it was enacted at
Marlebridge. Barr. on Stat. 58.
MARQUE AND REPRISAL. The name given to a commission granted by
the supreme power of a state to a private person for the purpose
of seizing the property of a foreign state or its subjects.
Wheat. Law of Nations, 340. Vide Letters of Marque.
MARRIAGE. A contract made in due form of law, by which a free
man and a free woman reciprocally engage to live with each other
during their joint lives, in the union which ought io exist
between husband and wife. By the terms freeman and freewoman in
this definition are meant, not only that they are free and not
slaves, but also that they are clear of all bars to a lawful
marriage. Dig. 23, 2, 1; Ayl. Parer. 359; Stair, Inst. tit. 4,
s. 1; Shelford on Mar. and Div. c. 1, s. 1.
2. To make a valid marriage, the parties must be willing to
contract, Able to contract, and have actually contracted.
3. - 1. They must be willing to contract. Those persons,
therefore, who have no legal capacity in point of intellect, to
make a contract, cannot legally marry, as idiots, lunatics, and
infant; males under the age of fourteen, and females under the
age of twelve, and when minors over those ages marry, they must
have the consent of their parents or guardians.
Bouvier's Law Dictionary : M1 : Page 27 of 202
4. There is no will when the person is mistaken in the party
whom he intended to marry; as, if Peter intending to marry
Maria, through error or mistake of person, in fact marries Eliza;
but an error in the fortune, as if a man marries a woman whom he
believes to be rich, and he finds her to be poor; or in the
quality, as if he marry a woman whom he took to be chaste, and
whom he finds of an opposite character, this does not invalidate
the marriage, because in these cases the error is only of some
quality or accident, and not in the person. Poynt. on Marr. and
Div. ch. 9.
5. When the marriage is obtained by force or fraud, it is clear
that there is no consent; it is, therefore, void ab initio, and
may be treated as null by every court in which its validity may
incidentally be called in question. 2 Kent, Com. 66; Shelf. on
Marr. and Div. 199; 2 Hagg. Cons. R. 246; 5 Paige, 43.
6. - 2. Generally, all persons who are of sound mind, and have
arrived to years of maturity, are able to contract marriage. To
this general rule, however, there are many exceptions, among
which the following may be enumerated.
7. - 1. The previous marriage of the party to another person
who is still living.
8. - 2. Consanguinity, or affinity between the parties within
the prohibited degree. It seems that persons in the descending or
ascending line, however remote from each other, cannot lawfully
marry; such marriages are against nature; but when we come to
consider collaterals, it is not so easy to fix the forbidden
degrees, by clear and established principles. Vaugh. 206; S. C.
2 Vent. 9. In several of the United States, marriages within the
limited degrees are made void by statute. 2 Kent, Com. 79; Vide
Poynt. on Marr. and Div. ch. 7.
9. - 3. Impotency, (q. v.) which must have existed at the time
of the marriage, and be incurable. 2 Phill. Rep. 10; 2 Hagg.
Rep. 832.
10. - 4. Adultery. By statutory provision in Pennsylvania, when
a person is convicted of adultery with another person, or is
divorced from her husband, or his wife, he or she cannot
afterwards marry the partner of his or her guilt. This provision
is copied from the civil law. Poth. Contr. de Mariage, part 3, c.
3, art. 7. And the same provision exists in the French code
civil, art. 298. See 1 Toull. n. 555.
11. - 3. The parties must not only be willing and able, but
must have actually contracted in due form of law.
12. The common law requires no particular ceremony to the valid
celebration of marriage. The consent of the parties is all that
is necessary, and as marriage is said to be a contract jure
gentium, that consent is all that is needful by natural or public
law. If the contract be made per verba de presenti, or if made
per verba de futuro, and followed by consummation, it amounts to
Bouvier's Law Dictionary : M1 : Page 28 of 202
a valid marriage, and which the parties cannot dissolve, if
otherwise competent; it is not necessary that a clergyman should
be present to give validity to the marriage; the consent of the
parties may be declared before a magistrate, or simply before
witnesses; or subsequently confessed or acknowledged, or the
marriage may even be inferred from continual cohabitation, and
reputation as husband and wife, except in cases of civil actions
for adultery, or public prosecutions for bigamy. 1 Silk. 119; 4
Burr. 2057; Dougl. 171; Burr. Settl. Cas. 509; 1 Dow, 148; 2
Dow, 482; 4 John. 2; 18 John. R. 346; 6 Binn, 405; 1 Penn. R.
452; 2 Watts, R. 9. But a promise to marry at a future time,
cannot, by any process of law, be converted into a marriage,
though the breach of such promise will be the foundation of an
action for damages.
13. In some of the states, statutory regulations have been made
on this subject. In Maine and Massachusetts, the marriage must be
made in the presence, and with the assent of a magistrate, or a
stated or ordained minister of the gospel. 7 Mass. Rep. 48; 2
Greenl. Rep. 102. The statute of Connecticut on this subject,
requires the marriage to be celebrated by a clergyman or
magistrate, and requires the previous publication of the
intention of marriage, and the consent of parents; it inflicts a
penalty on those who disobey its regulations. The marriage,
however, would probably be considered valid, although the
regulations of the statutes had not been observed. Reeve's Dom.
Rel. 196, 200, 290. The rule in Pennsylvania is, that the
marriage is valid, although the directions of the statute have
not been observed. 2 Watts, Rep. 9; 1 How. S. C. R. 219. The
same rule probably obtains in New Jersey; 2 Halsted, 138; New
Hampshire; 2 N. H. Rep. 268; and Kentucky. 3 Marsh. R. 370. In
Louisiana, a license must be obtained from the parish judge of
the parish in which at least one of the parties is domiciliated,
and the marriage must be celebrated before a priest or minister
of a religious sect, or an authorized justice of the peace; it
must be celebrated in the presence of three witnesses of full
age, and an act must be made of the celebration, signed by the
person who celebrated the marriage, by the parties and the
witnesses. Code, art. 101 to 107. The 89th article of the Code
declares, that such marriages only are recognized by law, as are
contracted and solemnized according to the rules which it
prescribes. But the Code does not declare null a marriage not
preceded by a license, and not evidenced by an act signed by a
certain number of witnesses and the parties, nor does it make
such an act exclusive evidence of the marriage. The laws relating
to forms and ceremonies are directory to those who are authorized
to celebrate marriage. 6 L. R. 470.
14. A marriage made in a foreign country, if good there, would,
in general, be held good in this country, unless when it would
work injustice, or be contra bonos mores, or be repugnant to the
settled principles and policy of our laws. Story, Confl. of Laws,
§87; Shelf. on M. & D. 140; 1 Bland. 188; 2 Bland. 485; 3
John. Ch. R. 190; 8 Ala. R. 48.
15. Marriage is a contract intended in its origin to endure
till the death of one of the contracting parties. It is dissolved
by death or divorce.
Bouvier's Law Dictionary : M1 : Page 29 of 202
16. In some cases, as in prosecutions for bigamy, by the common
law, an actual marriage must be proved in order to convict the
accused. See 6 Conn. R. 446. This rule is much qualified. See
Bigamy.
17. But for many purposes it may be proved by circumstances;
for example, cohabitation; acknowledgment by the parties
themselves that they were married; their reception as such by
their friends and relations; their correspondence, on being
casually separated, addressing each other as man and wife; 2 Bl.
R. 899; declaring, deliberately, that the marriage took place in
a foreign country; 2 Moo. & R. 503; describing their children,
in parish registers of baptism, as their legitimate offspring; 2
Str. 1073; 8 Ves. 417; or when the parties pass for husband and
wife by common reputation. 1 Bl. R. 639; S. C. 4 Burr. 2057;
Dougl. 174; Cowp. 594; 3 Swans. R. 400; 8 S. & R. 159; 2
Hayw. R. 3; 1 Taylor, R. 121; 1 H. & McH. 152; 2 N. & McC.
114; 5 Day, R. 290; 4 R. & M. 507; 9 Mass. R. 414; 4 John.
52; 18 John. 346. After their death, the presumption is
generally conclusive. Cowp. 591; 6 T. R. 330.
18. The civil effects of marriage are the following: 1. It
confirms all matrimonial agreements between the parties.
19. - 2. It vests in the husband all the personal property of
the wife, that which is in possession absolutely, and choses in
action, upon the condition that he shall reduce them to
possession; it also vests in the husband right to manage the
real estate of the wife, and enjoy the profits arising from it
during their joint lives, and after her death, an estate by the
curtesy when a child has been born. It vests in the wife after
the husband's death, an estate in dower in the husband's lands,
and a right to a certain part of his personal estate, when he
dies intestate. In some states, the wife now retains her separate
property by statute.
20. - 3. It creates the civil affinity which each contracts
towards the relations of the other.
21. - 4. It gives the husband marital authority over the person
of his wife.
22. - 5. The wife acquires thereby the name of her husband, as
they are considered as but one, of which he is the head: erunt
duo in carne unƒ.
23. - 6. In general, the wife follows the condition of her
husband.
24. - 7. The wife, on her marriage, loses her domicil and gains
that of her husband.
25. - 8. One of the effects of marriage is to give paternal
power over the issue.
Bouvier's Law Dictionary : M1 : Page 30 of 202
26. - 9. The children acquire the domicil of their father.
27. - 10. It gives to the children who are the fruits of the
marriage, the rights of kindred not only with the father and
mother, but all their kin.
28. - 11. It makes all the issue legitimate.
Vide, generally, 1 Bl. Com. 433; 15 Vin. Ab. 252; Bac. Ab. h.
t.; Com. Dig. Baron and Feme, B; Id. Appx. b. t.; 2 Sell. Pr.
194; Ayl. Parergon, 359; 1 Bro. Civ. Law, 94; Rutherf. Inst.
162; 2 Supp. to Ves. jr. 334; Roper on Husband & Wife; Poynter
on Marriage and Divorce; Merl. RŠpert. h. t.; Pothier, Trait‚
du Contrat de Marriage; Toullier, h. t.; Chit. Pract. Index, h.
t.; Dane's Ab. Index, h. t., Burge on the Confl. of Laws, Index,
h. t.; Bouv. Inst. Index, h. t.
MARRIAGE BROKAGE. By this expression is meant the act by which
a person interferes, for a consideration to be received by him,
between a man and a woman, for the purpose of promoting a
marriage between them. The money paid for such service is also
known by this name.
2. It is a doctrine of the courts of equity that all marriage
brokage contracts are utterly void, as against public policy;
and are, therefore, incapable of confirmation. 1 Fonb. Eq. B. 1,
ch. 4, s. 10, note a; 1 Story, Eq. Jur. §263; Newl. on Contr.
469.
MARRIAGE PORTION. That property which is given to a woman on
her marriage. Vide Dowry.
MARRIAGE, PROMISE OF. A promise of marriage is a contract
entered into between a man and woman that they will marry each
other.
2. When the promise is made between persons competent to
contract matrimony, an action lies for a breach of it. Vide
Promise of Marriage.
MARRIAGE SETTLEMENT. An agreement made by the parties in
contemplation of marriage by which the title to certain property
is changed, and the property to some extent becomes tied up, and
is rendered inalienable. Rice's Eq. R. 315. See 2 Hill, Ch. R. 3;
Ril. Ch. Cas. 76; 8 Leigh, 29; 1 Dev. & Bat. Eq. 389; 2 Dev. &
Bat. Eq. 103; 1 Bald. 344; 15 Mass. 106; 1 Yeates, 221; 7
Pet. 348; 4 Bouv. Inst. n. 3947. Vide Settlement, Contracts.
MARSHAL. An officer of the United States, whose duty it is to
execute the process of the courts of the United States. His
duties are very similar to those of a sheriff.
2. It is enacted by the act to establish the judicial courts of
the United States, 1 Story's L. U. S. 53, as follows:
§27. That a marshal shall be appointed, in and for each
district, for the term of four years, but shall be removable from
Bouvier's Law Dictionary : M1 : Page 31 of 202
office at pleasure whose duty it shall be to attend the district
and circuit courts, when sitting therein, and also the supreme
court in the district in which that court shall sit: and to
execute throughout the district, all lawful precepts directed to
him, and issued under the authority of the United States, and he
shall have power to command all necessary assistance in the
execution of his duty, and to appoint, as there shall be
occasion, one or more deputies, who shall be removable from
office by the judge of the district court, or the circuit court
sitting within the district, at the pleasure of either. And
before he enters on the duties of his office, he shall become
bound for the faithful performance of the same, by himself and by
his deputies, before the judge of the district court, to the
United States jointly and severally, with two good and sufficient
sureties, inhabitants and freeholders of such district, to be
approved by the district judge, in the sum of twenty thousand
dollars, and shall take before said judge, as shall also his
deputies, before they enter on the duties of their appointment,
the following oath of office: "I, A B, do solemnly swear or
affirm, that I will faithfully execute alI lawful precepts
directed to the marshal of the district of________under the
authority of the United States, and true returns make; and in
all things well and truly, and without malice or partiality,
perform the duties of the office of marshal (or marshal's deputy,
as the case may be) of the district of _________ during my
continuance in said office, and take only my lawful fees. So help
me God."
3. - §28. That in all causes wherein the marshal, or his
deputy, shall be a party, the writs and precepts therein shall be
directed to such disinterested person, as the court, or any
justice or judge thereof may appoint, and the person so appointed
is hereby authorized to execute and return the same. And in case
of the death of any marshal, his deputy or deputies, shall
continue in office unless otherwise specially removed; and shall
execute the same in the name of the deceased, until another
marshal shall be appointed and sworn: And the defaults, or
misfeasances in office of such deputy or deputies in the mean
time, as well as before, shall be adjudged a breach of the
condition of the bond given, as before directed, by the marshal
who appointed them; and the executor or administrator of the
deceased marshal, shall have like remedy for the defaults and
misfeasances in office of such deputy or deputies during such
interval, as they would be entitled to if the marshal had
continued in life, and in the exercise of his said office, until
his successor was appointed, and sworn or affirmed: And every
marshal, or his deputy, when removed from office, or when the
term for which the marshal is appointed shall expire, shall have
power, notwithstanding, to execute all such precepts as may be in
their hands, respectively, at the time of such removal or
expiration of office; and the marshal shall be held answerable
for the delivery to his successors of all prisoners which may be
in his custody at the time of his removal, or when the term for
which he is appointed shall expire, and for that purpose may
retain such prisoners in his custody, until his successor shall
be appointed, and qualified as the law directs.
Bouvier's Law Dictionary : M1 : Page 32 of 202
4. By the act making certain alterations in the act for
establishing the judicial courts, &c. passed June 9, 1794, 1
Story's L. U. S. 865, it is enacted,
§7. That so much of the act to establish the judicial courts of
the United States, as is, or may be, construed to require the
attendance of the marshals of all the districts at the supreme
court, shall be, and the same is hereby repealed: And that the
said court shall be attended, during its session, by the marshal
of the district only, in which the court shall sit, unless the
attendance of the marshals of other districts shall be required
by special order of the said court.
5. The act of February 28, 1795, 1 Story's L. U. S. 391,
directs,
§9. That the marshals of the several districts, and their
deputies, shall have the same powers, in executing the laws of
the United States, as sheriffs and their deputies, in the several
states, have by law in executing the laws of the respective
states.
6. There are various other legislative provisions in relation
to the duties and rights of marshals, which are here briefly
noticed with reference to the laws themselves.
7. - 1. The act of May 8, 1792, s. 4, provides for the payment
of expenses incurred by the marshal in holding the courts of the
United States, the payment of jurors, witnesses, &c.
8. - 2. The act of April 16, 1817, prescribes the duties of the
marshal in relation to the proceeds of prizes captured by the
public armed ships of the United States and sold by decree of
court.
9. - 3. The resolution of congress of March 3, 1791; the act
of February 25, 1799, s. 5; and the resolution of March 3, 1821;
all relate to the duties of marshals in procuring prisons, and
detaining and keeping prisoners.
10. - 4. The act of April 10, 1806, directs how and for what,
marshals shall give bonds for the faithful execution of their
office.
11. - 5. The act of September 18, 1850, s. 5, prescribes the
duties of the marshal in relation to obeying and executing all
warrants and precepts issued under the provisions of this act,
and the penalties he shall incur for refusing to receive and
execute the said warrants when rendered, and for permitting the
fugitive to escape after arrest, Vide Story's L. U. S. Index, h.
t.; Serg. Const. Law, ch. 25; 2 Dall. 402; United States v.
Burr, 365; Mason's R. 100; 2 Gall. 101; 4 Cranch, 96; 7
Cranch, 276; 9 Cranch, 86, 212; 6 Wheat. 194; 9 Wheat. 645;
Minot, Stat. U. S. Index, h. t.
MARSHALLING SECURITIES, equity. When a party has two funds by
which his debt is secured, and another creditor has a claim only
Bouvier's Law Dictionary : M1 : Page 33 of 202
on one of these funds, a court of equity will compel the creditor
having a double security to resort to that fund which will leave
the other creditor his security, this is called marshalling
assets. 4 Bouv. Inst. n. 3788; 1 Story, Eq. Jur. §633 Amb. 91;
8 Ves. 389; 9 Ves. 209.
2. Marshalling of assets respects two different funds, and two
different sets of parties, where one set can resort to either
fund, the other only to one. It is grounded on obvious equity. It
does no prejudice to anybody, and it effectuates the testator's
intent. It takes place in favor of simple contract creditors, and
of legatees, devisees and heirs, and in a few other cases, but
not in favor of the next of kin. 4 Bro. C. C. 411; 1 P. Wms.
680.
3. The cases in which a court of equity marshals real and
personal assets for the payment of simple contract debts and
legacies, may be classed as follows: 1. Where there are
specialty and simple contract debts and legacies and lands left
to descend. In this case if the specialty creditors take a
satisfaction for their debts out of the personal estate, the
simple contract creditors first, and then the legatees, shall
stand in the place of the specialty creditors, for obtaining
satisfaction out of the lands, to the amount of so much as was
received by the specialty creditors out of the personal estate.
4. - 2. Where there are specialty and simple contract debts,
and lands are specifically devised. In this case if the creditors
take a satisfaction for their debts out of the personal estate,
the simple contract creditors shall stand in the place of the
specialty creditors for obtaining a satisfaction out of the lands
to the amount of so much as was received by the specialty
creditors out of the personal estate, but then there can be no
relief for the legatees, because there is as much equity to
support the, specific devise of the lands, as to support the
bequest of the legatees.
5. - 3. Where the debts are charged upon the lands. Here the
legatees shall have the personal estate towards their
satisfaction, and if the creditors take it in payment or towards
the discharge of their debts, the legatees shall stand in their
place pro tanto to have a discharge out of the lands.
6. - 4. When simple contract debts and legacies are both
charged on the land. In this case the land shall be sold and all
paid equally. 1 Madd. Ch. Pr. 617.
MARSHALSEA, English law. The name of a prison belonging to the
court of the king's bench.
MARTIAL LAW. Vide Law Martial.
MARYLAND. One of the original states of the United States of
America. The province of Maryland was included in the patent of
the Southern or Virginia company; and upon the dissolution of
that company, it reverted to the crown. Charles the First, on the
20th of June, 1632, granted it by patent to Lord Baltimore. Under
Bouvier's Law Dictionary : M1 : Page 34 of 202
this charter Maryland continued to be governed, with some short
intervals of interruption, down to the period of the American
Revolution, by the successors of the original proprietor. 1
Chalmer's Annals, 203.
2. Upon the revolution of 1688, the government of Maryland was
seised into the hands of the crown, and was not again restored to
the proprietary until 1716; from that period no alteration
occurred until the American Revolution. Bacon's Laws of Maryland,
1692, 1716.
3. The original constitution of this state was adopted on the
14th day of August, 1776. The present constitution was adopted in
1851.
4. The powers of the government are distributed into the
legislative, the executive, and the judicial.
5. - 1st. The legislature shall consist of two distinct
branches, a senate and a house of delegates, which shall be
styled "The general assembly of Maryland." Art. III. s. 1.
6. - 2. The general assembly shall meet on the first Wednesday
of January, 1852, on the same day, in the year 1853, and on the
same day, 1854, and on the same day in every second year
thereafter, and at no other time, unless convened by the
proclamation of the governor. Art. III. s. 7.
7. - 3. The senate will be considered with reference to the
qualification of the electors; the qualification of the members;
the length of time for which they are elected; and the time of
their election. 1. Every free white male person of twenty-one
years of age or upwards, who shall have been one year next
preceding the election a resident of the state, and for six
months a resident of the city of Baltimore, or of any county in
which he may offer to vote, and being at the time of the
election, a citizen of the United States, shall be entitled to
vote in the ward or election district in which he re-sides, in
all elections hereafter to be held; an& at all such elections
the vote shall be taken by ballot. And in case any county or city
shall be so divided as to form portions of different electoral
districts for the election of congressmen, senator, delegate or
other officer or officers, then to en-title a person to vote for
such officer, he must have been a resident of that part of the
county or city which shall form a part of the electoral district
in which he offers to vote for six months next preceding the
election: but a person who shall have acquired a residence in
such county or city, entitling him to vote at any such election,
shall be entitled to vote in the election district from which he
remoted, until he shall have acquired a residence in the part of
the county or city to which he has removed. Art. I. s. 1. 2. No
person shall be eligible as a senator who at the time of his
election is not a citizen of the United States, and who bas not
resided at least three years next preceding the day of his
election, in this state, and the last year thereof in the county
or city which he may be chosen to represent, if such county or
city shall have been so long established, and if not, then in the
Bouvier's Law Dictionary : M1 : Page 35 of 202
county from which, in whole or in part, the same may have been
formed; nor shall any person be eligible as a senator unless he
shall have attained the age of twenty-five years. No member of
congress, or person bolding any civil or military office under
the United States, shall be eligible as a senator; and if any
person, after his election as a senator, be elected to congress,
or be appointed to any office, civil or military, under the
government of the United States, his acceptance thereof shall
vacate his seat. No minister or preacher of the gospel of any
denomination, and no person holding any civil office of profit or
trust under the state, except justices of the peace, shall be
eligible as senator. Art. III. ss. 9, 10, 11. 3. Every county of
the state, and the city of Baltimore, shall be entitled to elect
one senator, who shall serve for four years from the day of their
election. The first election shall take place on the first
Wednesday of November, 1851, and an election for one-half the
senators, as nearly as practicable, shall be held on the same day
every second year thereafter. Art. III. 2, 3, 4, 5.
8. - 4. The house of delegates will be treated of in the same
manner which has been observed in considering the senate. 1. The
electors are qualified in the same manner as the electors of the
senate. 2. No person shall be a delegate who shall not have
attained the age of twenty-one years; the other qualifications
are the same as those for a senator. 3. The whole number of
delegates shall never exceed eighty, nor be less than sixty-five,
and shall be apportioned among the several counties according to
the population of each, the city of Baltimore to have four more
delegates than the most populous county; no county to have less
than two delegates, the apportionment to be made after the
returns of the national census in 1860 are published, and in like
manner after each subsequent census. They are to serve two years
from the day of their election, which takes place on the same day
as that for senators.
9. - 1. The executive power of the state shall be vested in a
governor, whose term of office shall commence on the second
Wednesday of January next ensuing his election, and continue for
four years, and until his successor shall have qualified.
10. - 2. The first election for governor under this
constitution shall be held on the first Wednesday of November, in
the year eighteen hundred and fifty-three, and on the same day
and month in every fourth year thereafter, at the places of
voting for delegates to the general assembly, and every person
qualified to vote for delegates shall be qualified, and entitled
to vote for governor; the election to be held in the same manner
as the election of dele-gates, and the returns thereof, under
seal, to be addressed to the speaker of the house of delegates,
and enclosed and transmitted to the secretary of state, and
delivered to the said speaker at the commencement of the session
of the legislature next ensuing said election.
11. - 3. The speaker of the house of delegates shall then open
the said returns in the presence of both houses, and the person
having the highest number of votes, and being constitutionally
eligible, shall be the governor, and shall qualify in the manner
Bouvier's Law Dictionary : M1 : Page 36 of 202
herein prescribed, on the second Wednesday of January next
ensuing his election, or as soon thereafter as may be
practicable.
12. - 4. If two or more persons shall have the highest and an
equal number of votes, one of them shall be chosen governor by
the senate and house of delegates; and all questions in relation
to the eligibility of governor, and to the returns of said
election, and to the number and legality of votes therein given,
shall be determined by the house of delegates. And if the person
or persons having the highest number of votes be ineligible, the
governor shall be chosen by the senate and house of delegates.
Every election of governor, by the legislature, shall be
determined by a joint majority of the senate and house of
delegates, and the vote shall be taken viva voce. But if two or
more persons shall have the highest and an equal number of votes,
then a second vote shall be taken, which shall be confined to the
persons having an equal number; and if the votes should again be
equal, then the election of governor shall be determined by lot
between those who shall have the highest and an equal number on
the first vote.
13. - 5. The state shall be divided into three districts. St.
Mary's, Charles, Calvert, Prince George's, Anne Arundle,
Montgomery, and Howard counties, and the city of Baltimore to be
the first; the eight counties of the Eastern shore to be the
second; and Baltimore, Harford, Frederick, Washington, Allegany,
and Carroll counties, to be the third. The governor, elected from
the third district in October last, shall continue in office
during the term for which he was elected. The governor shall be
taken from the first district, at the first election of governor
under this constitution; from the second district at the second
election, and from the third district at the third election, and
in like manner, afterwards, from each district, in regular
succession.
14. - 6. A person to be eligible to the office of governor,
must have attained the age of thirty years, and been for five
years a citizen of the United States, and for five years next
preceding his election a resident of the state, and for three
years a resident of the district from which he was elected.
15. - 7. In case of the death or resignation of the governor,
or of his removal from the state, the general assembly, if in
session, or if not, at their next session, shall elect some other
qualified resident of the same district, to be the governor for
the residue of the term for which the said governor had been
elected.
16. - 8. In case of any vacancy in the office of governor
during the recess of the legislature, the president of the senate
shall discharge the duties of said office till a governor is
elected as herein provided for; and in case of the death or
resignation of said president, or of his removal from the state,
or of his refusal to serve, then the duties of said office shall,
in like manner, and for the same interval, devolve upon the
speaker of the house of dele-gates, and the legislature may
Bouvier's Law Dictionary : M1 : Page 37 of 202
provide by law for the case of impeachment or inability of the
governor, and declare what person shall perform the executive
duties during such impeachment or inability; and for any vacancy
in said office, not herein provided for, provision may be made by
law, and if such vacancy should occur without such provision
being made, the legislature shall be convened by the secretary of
state for the purpose of filling said vacancy.
17. - 9. The governor shall be commander-in-chief of the land
and naval forces of the state, and may call out the militia to
repel invasions, suppress insurrections, and enforce the
execution of the laws; but shall not take the command in person
without the consent of the legislature.
18. - 10. He shall take care that the laws be faithfully
executed.
19. - 11. He shall nominate, and by and with the advice and
consent of the senate, appoint all civil and military officers of
the state, whose appointment or election is not otherwise herein
provided for, unless a different mode of appointment be
prescribed by the law creating the office.
20. - 12. In case of any vacancy during the recess of the
senate, in any office which the governor has power to fill, he
shall appoint some suitable person to said office, whose
commission shall continue in force till the end of the next
session of the legislature, or till some other person is
appointed to the same office, whichever shall first occur, and
the nomination of the person thus a pointed during the recess, or
of some other person in his place, shall be made to the senate
within thirty days after the next meeting of the legislature.
21. - 13. No person, after being rejected by the senate, shall
be again nominated for the same office at the same seision,
unless at the request of the senate; or be appointed to the same
office during the recess of the legislature.
22. - 14. All civil officers appointed be the governor and
senate shall be nominated to the senate within fifty days from
the commencement of each regular session of the legislature; and
their term of office shall commence on the first Monday of May
next ensuing their appointment, and continue for two years
(unless sooner removed from office) and until their successors,
respectively, qualify according to law.
23. - 15. The governor may suspend or arrest any military
officer of the state for disobedience of orders, or other
military offence, and may remove him in pursuance of the sentence
of a court-martial; and may remove for incompetency or
misconduct, all civil officers, who receive appointments from the
executive for a term not succeeding two years.
24. - 16. The governor may convene the legislature, or the
senate alone, on extraordinary occasions; and whenever, from the
presence of an enemy or from any other cause, the seat of
government shall become an unsafe place for the meeting of the
Bouvier's Law Dictionary : M1 : Page 38 of 202
legislature, he may direct their sessions to be held at some
other convenient place.
25. - 17. It shall be the duty of the governor semi-annually,
and oftener if he deem it expedient, to examine the bankbook,
account books, and official proceedings of the treasurer anA
comptroller of the state.
26. - 18. He shall, from time to time, inform the legislature
of the condition of the state, and recommend to their
consideration such measures as he may judge necessary and
expedient.
27. - 19. He shall have power to grant reprieves and pardons,
except in cases of impeachment, and in cases in which he is
prohibited by other articles of this constitution, and to remit
fines and forfeitures for offences against the state; but shall
not remit the principal or interest of any debt due to the state,
except in cases of fines and forfeitures; and before granting a
nolle prosequi, or pardon, he shall give notice, in one or more
newspapers, of the application made for it, and of the day on or
after which his decision will be given; and in every case in
which he exercises this power, he shall report to either branch
of the legislature. Whenever required, the petitions,
recommendations and reasons which influence his decision.
28. - 20. The governor shall reside at the seat of government,
and shall receive for his services an annual salary of thirty-six
hundred dollars.
29. - 21. When the public interest requires it, he shall have
power to employ counsel, who shall be entitled to such
compensation as the legislature may allow in each case after the
services of such counsel shall have been performed.
29. - 22. A secretary of state shall be appointed by the
governor, by and with the advice and consent of the senate, who
shall continue in office, unless sooner removed by the governor,
till the end of the official term of the governor from whom he
received his appointment, and shall receive an annual salary of
one thousand dollars.
30. - 23. He shall carefully keep and preserve a record of all
official acts an proceedings (which may, at all times, be
inspected by a committee of either branch of the legislature,)
and shall perform such other duties as may be prescribed by law
or as may properly belong to his office.
31. - 3d. The judicial power of this state shall be vested in a
court of appeals, in circuit courts, in such courts for the city
of Baltimore as may be hereinafter prescribed, and in justices of
the peace.
32. - 2. The court of appeals shall have appellate jurisdiction
only, which shall be co-extensive with the limits of the state.
It shall consist of a chief justice and three associate justices,
any three of whom shall form a quorum, whose judgment shall be
Bouvier's Law Dictionary : M1 : Page 39 of 202
final and conclusive in all cases of appeals; and who shall have
the jurisdiction which the present court of appeals of this state
now has, and such other appellate jurisdiction as hereafter may
be provided for by law. And in every case decided, an opinion, in
writing, shall be filed, and provision shall be made, by law, for
publishing reports of cases argued and determined in the said
court. The governor, for the time being, by and with the advice
and consent of the senate, shall designate the chief justice, and
the court of appeals shall hold its sessions at the city of
Annapolis, on the first Monday of June, and the first Monday of
December, in each and every year.
33. - 3. The state shall be divided into four judicial
districts: Allegany, Washington, Frederick, Carroll, Baltimore,
and Harford counties, shall compose the first; Montgomery,
Howard, Anne Arundel, Calvert, St. Mary's, Charles and Prince
George's, the second; Baltimore city, the third; and Cecil,
Kent, Queen Anne's, Talbot, Caroline, Dorchester, Somerset, ana
Worcester, shall compose the fourth district. And one person from
among those learned in the law having been admitted to practice
in this this state at least, five years, and above the age of
thirty years at the time of his election, and a resident of the
judicial district, shall be elected from each of said districts
by the legal and qualified voters therein, as a judge of the said
court of appeals, who shall hold his office for the term of ten
years from the time of his election, or until he shall have
attained the age of seventy years, whichever may first happen,
and be reeligible thereto until he shall have attained the age of
seventy years, and not after, subject to removal for
incompetency, wilful neglect of duty, or misbehaviour in office,
on conviction in a court of law, or by the governor upon the
address of the general assembly, two-thirds of the members of
each house concurring in such address; and the salary of each of
the judges of the court of appeals shall be two thousand five
hundred dollars annually, and shall not be increased or
diminished during their continuance in office; and no fees or
perquisites of any kind, shall be allowed by law to any of the
said judges.
34. - 4. No judge of the court of appeals shall sit in any case
wherein he may be interested, or where either of the parties may
be connected with him by affinity or consanguinity within such
degrees as may be prescribed by law, or when he shall have been
of counsel in said case; when the court of appeals, or any of
its members shall be thus disqualified to bear and determine any
case or cases in said court, so that by reason thereof no
judgment can be rendered in said court, the same shall be
certified to the governor of the state, who shall immediately
commission the requisite number of persons learned in the law for
the trial and determination of said case or cases.
35. - 5. All judges of the court of appeals, of the circuit
courts, and of the courts for the city of Baltimore, shall, by
virtue of their offices, be conservator's of the peace throughout
the state.
36. - 6. All public commissions and grants shall run thus:
Bouvier's Law Dictionary : M1 : Page 40 of 202
"The State of Maryland," &c., and shall be signed by the
governor, with the seal of the state annexed; all writs and
process shall run in the same style, and be tested, sealed and
signed as usual; and all indictments shall conclude "against the
peace, government and dignity of the state."
37. - 7. The state shall be divided into eight judicial
circuits, in manner and form following, to wit; St. Mary's,
Charles, and Prince George's counties shall be the first: Anne,
Arundel, Howard, Calvert and Montgomery counties shall be the
second; Frederick and Carroll counties shall be the third;
Washington and Allegany counties shall be the fourth; Baltimore
city shall be the fifth; Baltimore, Harford and Cecil counties
shall be the sixth; Kent, Queen Anne's, Talbot and Caroline
counties shall be the seventh; and Dorchester, Somerset and
Worcester counties shall be the eighth; and there shall be
elec-ted, as hereinafter directed, for each of the said judicial
circuits, except the fifth, one person from among those learned
in the law, having been admitted to practice in this state, and
who shall have been a citizen of this state at least five years,
and above the age of thirty years at the time of his election,
and a resident of the judicial circuit, to be judge thereof; the
said judges shall be styled circuit judges, and shall
respectively hold a term of their courts at least twice in each
year, or oftener if required by law, in each county composing
their respective circuits; and the said courts shall be called
circuit courts for the county in which they may be held, and
shall have and exercise in the several counties of this state,
all the power, authority and jurisdiction which the county courts
of this state now have and exercise, or which may hereafter be
prescribed by law, and the said judges in their re-spective
circuits, shall have and exercise all the power, authority and
jurisdiction of the present court of chancery of Maryland;
provided, nevertheless, that Baltimore county court may hold its
sittings within the limits of the city of Baltimore, until
provision shall be made by law for the location of a county seat
within the limits of the said county proper, and the erection of
a court house and all other appropriate buildings, for the
convenient administration of justice in said court.
38. - 8. The judges of the several judicial circuits shall be
citizens of the United States, and shall have resided five years
in this state, and two years in the judicial circuit for which
they may be respectively elected, next before the time of their
election, and shall reside therein while they continue to act as
judges; they shall be taken from among those who, having the
other qualifications herein prescribed, are most distinguished
for integrity, wisdom and sound legal knowledge, and shall be
elected by the qualified voters of the said circuits, and shall
hold their offices for the term of ten years, removable for
misbehaviour, on conviction in a court of law or by the governor,
upon the address of the general assembly, provided that
two-thirds of the members of each house shall concur in such
address, and the said judges shall each receive a salary of two
thousand dollars a year, and the same shall not be increased or
diminished during the time of their continuance in office; and
no judge of any court in this state, shall receive any
Bouvier's Law Dictionary : M1 : Page 41 of 202
perquisite, fee, commission or reward, in addition thereto, for
the performance of any judicial duty.
39. - 9. There shall be established for the city of Baltimore
one court of law, to be styled "the court of common pleas," which
shall have civil jurisdiction in all suits where the debt or
damage claimed shall be over one hundred dollars, and shall not
exceed five hundred dollars; and shall, also, have jurisdiction
in all cases of appeal from the judgment of justices of the peace
in the said city, and shall have jurisdiction in all applications
for the benefit of the insolvent laws of this state, and the
supervision and control of the trustees thereof.
40. - 10. There shall also be established, for the city of
Baltimore, another court of law, to be styled the superior court
of Baltimore city, which shall have jurisdiction over all suits
where the debt or damage claimed shall exceed the sum of five
hundred dollars, and in case any plaintiff or plain-tiffs shall
recover less than the sum or value of five hundred dollars, he or
they shall be allowed or adjudged to pay costs in the discretion
of the court. The said court shall also have jurisdiction as a
court of equity within the limits of the said city, and in all
other civil cases which have not been heretofore assigned to the
court of common pleas.
41. - 11. Each of the said two courts shall consist of one
judge, who shall be elected by the legal and qualified voters of
the said city, and shall bold his office for the term of ten
years, subject to the provisions of this constitution, with
regard to the election and qualification of judges and their
removal from office, and the salary of each of the said