Gale Encyclopedia Of American Law 3Rd Edition Volume 6 P49 pot

Because letters of marque and REPRISAL
allowed privately owned and operated vessels
to carry out acts of war, the practice came to be
known as privateering. Privateering was fre-
quently encouraged from the period between
1692 to 1814, at which time weaker countries
used privateers to hurt a stronger country in the
way guerrilla warfare is curre ntly used. Priva-
teers operated concomitant to regular navies.
Their main purpose was to annoy the enemy;
however, an enemy’s merchant vessels were
often seized in retaliation for acts of hostility.
The system of privateering was subject to
extensive abuses. In the absence of proper
letters, a privateer was tantamount to a pirate.
PIRACY is subject to severe punishment through-
out the world. Although privateers allegedly
existed in order to support the defense of their
sovereigns, they frequently acquired much
personal wealth through their activities. In
addition, since privateers were not subject to
the same discipline as a regular navy, they
yielded to the temptation to seize ships beyond
the scope of their authority.
Such abuses, and new the ories of naval
warfare led civilized nations, in 1856, to sign an
agreement outlawing privateering. The agree-
ment does not prohibit a state from organizing
a voluntary navy of private vessels, which are
under the dominion and control of the state.
The U.S. Constitution provides that no state

can grant letters of marque and reprisal. The
federal government is not limited in this right
by the Constitution; however, modern custom
and treaties prevent it from granting the letters.
CROSS REFERENCE
Admiralty and Maritime Law.
MARRIAGE
Marriage is the legal status, condition, or
relationship that results from a contract by which
one man and one woman, one man and one man,
or one woman and one woman, who have the
capacity to enter into such an agreement,
mutually promise to live together in the relation-
ship of husband and wife in law for life, or until
the legal termination of the relationship.
Marriage is a legally sanctioned contract
between two persons. Traditionally, marriage
has been between a man and a woman, but
several U.S. court and legislative decisions from
2003 onward have authorize d same-sex couples
to acquire this legal status. Entering into a
marriage contract changes the legal status of
both parties, giving
HUSBAND AND WIFE new rights
and obligations.
PUBLIC POLICY is strongly in favor
of mar riage based on the belief that it preserves
the family unit. Traditionally, marriage has been
viewed as vital to the preservation of morals and
civilization.

The traditional principle upon which the
institution of marriage is founded is that a
husband has the obligation to support a wife
and that a wife has the duty to serve. In the past,
this arrangement has meant that the husband
has the duty to provide a safe house, to pay for
necessities such as food and clothing, and to live
in the house. A wife’s obligation has tradition-
ally entailed maintaining a home, living in the
home, having sexual relations with her hus-
band, and rearing the couple’s children.
Changes in society have modified these mar ital
roles considerably as married women have
joined the workforce in large numbers, and
more married men have become more involved
in child rearing.
Individuals who seek to alter marital rights
and duties are permitted to do so only within
legally prescribed limits. Antenuptial agree-
ments are entered into before marriage, in
contemplation of the marriage relationship.
Typically these agreements involve property
rights and the terms that will be in force if a
couple’s marriage ends in
DIVORCE. Separation
agreements are entered into during the marriage
prior to the commencement of an action for a
separation or divorce. These agr eements are
concerned with
CHILD SUPPORT, visitation, and

temporary maintenance of a spouse. The laws
governing these agreements are generally con-
cerned with protecting every marriage for social
reasons, whether the parties desire it or not.
Experts suggest that couples should try to
resolve their own difficulties because that is
more efficient and effective than placing their
issues before the courts.
In the United States, marriage is regulat ed
by the states. At one time, most states recog-
nized common law marriage, which is entered
into by agreement of the parties to be husband
and wife. In such an arrangement, no marriage
license is required, nor is a wedding ceremony
necessary. The parties are legally married when
they agree to marry and subsequently live
together, publicly holding themselves out as
husband and wife. The public policy behind the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
468 MARRIAGE
recognition of COMMON-LAW MARRIAGE is to
protect the parties’ expectations, if they are
living as husband and wife in every way except
that they never participated in a formal
ceremony. By upholding a common-law mar-
riage as valid, children are legitimized, surviving
spouses are entitled to receive
SOCIAL SECURITY
benefits, and families are entitled to inherit
Your marriage record is vital.

Be sure the information you give is complete and accurate.
PLEASE PRINT- USE BLACK INK
MARRIAGE LICENSE APPLICATION
TO BE FILLED OUT BY COUPLE MAKING APPLICATION
(Please read instructions on reverse side of this form)
STATE OF HAWAI’I • DEPARTMENT OF HEALTH
OFFICE OF HEALTH STATUS MONITORING
LICENSE NO. ______________________________________
_
1a. FIRST NAME OF GROOM
b. MIDDLE NAME
c. LAST NAME
2. DATE OF BIRTH (Month, Day, Year)
3. USUAL RESIDENCE: a. STREET ADDRESS
CITY b. COUNTY
c. STATE OR FOREIGN
COUNTRY
4. PLACE OF BIRTH: *City & State or
Country
5. FATHER: a. FULL NAME - FIRST, MIDDLE, LAST
b. STATE OR FOREIGN COUNTRY
OF BIRTH*
c. Living?* Yes, No,
Refused, or Unknown
GROOM (MALE)
Zip Code ____________
Home Ph.# __________
Office Ph.# __________
6. MOTHER: a. FULL NAME - FIRST, MIDDLE, MAIDEN NAME
b. STATE OR FOREIGN COUNTRY

OF BIRTH*
c. Living?* Yes, No,
Refused, or Unknown
7a. FIRST NAME OF BRIDE
b. MIDDLE NAME c. LAST NAME
8. DATE OF BIRTH (Month, Day, Year)
9. USUAL RESIDENCE: a. STREET ADDRESS
CITY
b. COUNTY
c. STATE OR FOREIGN
COUNTRY
10. PLACE OF BIRTH: *City & State or
Country
11. FATHER: a. FULL NAME- FIRST, MIDDLE, LAST
b. STATE OR FOREIGN COUNTRY
OF BIRTH*
c. Living?* Yes, No,
Refused, or Unknown
BRIDE (FEMALE)
Zip Code ____________
Home Ph.# __________
Office Ph.# __________
12. MOTHER: a. FULL NAME- FIRST, MIDDLE, MAIDEN NAME
b. STATE OR FOREIGN COUNTRY
OF BIRTH*
c. Living?* Yes, No,
Refused or Unknown
Blood relationship of
groom to bride:
On what island do you plan to be married?

(Oahu, Hawai’i, Maui, Kaua’i Lana’i or Moloka’i)
Name of Marriage Performer (Commissioned by the State
of Hawai’i)
FORWARDING ADDRESS:
(After Marriage)
DO YOU WANT YOUR NAMES
PUBLISHED IN THE NEWSPAPER? YES NO
CONFIDENTIAL INFORMATION - PLEASE COMPLETE
NUMBER OF
THIS MARRIAGE
IF PREVIOUSLY MARRIED, LAST MARRIAGE ENDED.
EDUCATION* - Specify
Highest Grade Completed
DATE ENDED
SUPPLE-
MENTARY
DATA
FIRST, SECOND,
ETC. (SPECIFY)
BY DEATH, DIVORCE,
DISSOLUTION OR
ANNULMENT (specify)
MONTH / YEAR
PLACE ENDED
(COUNTY & STATE OR
COUNTRY)
RACE* OCCUPATION*
Elem. Or
Secondary
(0-12)

College
(1 - 5+)
GROOM
(MALE)
25.
26a. 26b.
26c.
27. 28.
29.
BRIDE
(FEMALE)
30.
31a. 31b. 31c. 32. 33. 34.
FOR OFFICE USE ONLY
CERTIFICATION - SIGN BEFORE MARRIAGE AGENT
We, the undersigned, certify that the information given in this application is true and correct to the best of our knowledge and belief.
Written consent of court is attached, if under jurisdiction of court or under age 16.
FULL SIGNATURE OF PROSPECTIVE GROOM (MALE)
FULL SIGNATURE OF PROSPECTIVE BRIDE (FEMALE)
Sworn and subscribed to before me this day of , 20
GROOM:
SIGHTED:
#:
NAME ?
Yes
No
DOB ?
Yes
No
AGE:

Sex: M F
Previous Marriage(s):
BRIDE:
Yes
No
Yes
No
M F
MARRIAGE LICENSE AGENT
JUDICIAL DISTRICT, STATE OF HAWAI’I
OHSM-1
ITEMS INDICATED WITH *ARE OPTIONAL, BUT DO NOT LEAVE THESE ITEMS BLANK; ENTER REFUSED OR UNKNOWN INTENTIONAL FALSIFICATION IS A CRIME
Marriage License Application
When do you plan to be
married?
ٗ ٗ
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY PER-
MISSION OF GALE, A
PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
MARRIAGE 469
property in the absence of a will. These public
policy reasons have declined in significance.
Most states have abolished common law
marriage, in large part because of the legal
complications that arose concerning property

and inheritance.
The U.S. Supreme Court has held that states
are permitted to reasonably regulate marriage
by prescribing who can marry and the manner
in which marriage can be dissolved. States may
grant an
ANNULMENT or divorce on terms that
they conclude are proper, because no one has
the constitut ional right to remain married.
There is a right to marry, however, that cannot
be casually denied. States are proscribed from
absolutely prohibiting marriage in the absence
of a valid reason. The U.S. Supreme Court, for
example, struck down laws in southern states
that prohibited racially mixed marriages. These
anti-miscegenation statutes were held to be
unconstitutional in the 1967 case of Loving v.
Virginia (388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d
1010), because they violated
EQUAL PROTECTION of
the laws.
By contrast, the court ruled in 1878 that
polygamous marriages (i.e., having more than
one spouse simultaneously) are illegal. The
requirement that marriage involve one man
and one woman was held to be essential to
Western civilization and the United States in
Reynolds v. United States (98 U.S. 145, 25 L. Ed.
244). Chief Justice
MORRISON R. WAITE, writing

for a unanimous court, concluded that a state
(in that case, Utah) may outlaw
POLYGAMY for
everyone, regardless of whether it is a religious
duty, as the Mormons claimed it was.
All states limit people to one living husband
or wife at a time and will not issue marriage
licenses to anyone who has a living spouse. Once
someone is married, the person must be legally
released from his or her spouse by death, divorce,
or annulment before he or she may legally
remarry. Persons who enter into a second
marriage without legally dissolving a first mar-
riage may be charged with the crime of bigamy.
The idea that marriage is the union of one
male and one female has been thought to be
so basic that it is not ordinarily specifically
expressed by statute. This traditional principle
has been challenged by gays and lesbians, who,
until recently, have unsuccessfully sought to
legalize their relationships. In Baker v. Nelson,
(191 N. W. 2d 185 [Minn. 1971]), the Minnesota
Supreme Court sustained the clerk’s denial of
a marriage license to a homosexual couple.
The 1993 decision of the Hawaii Supreme
Court in Baehr v. Lewin (852 P. 2d 44, 74 Haw.
530), raised the possibility of homosexual
marriage. In Baehr, the court held that the state
law restricting legal marriage to parties of the
opposite sex establi shes a sex-based classifica-

tion, which is subject to strict constitutional
scrutiny when challenged on equal protection
grounds. Although the court did not recognize
a constitutional right to same-sex marriage, it
indicated that the state would have a difficult
time proving that the gay and lesbian couples
were not being denied equal protection of
the laws. On remand, the Hawaii circuit
court found that the state had not met its
burden, and it enjoined the state from denying
marriage applications solely because the appli-
cants were of the same sex. Before the state
supreme court could issue a final ruling, the
voters of Hawaii passed a
REFERENDUM to amend
the constitution to allow the state legislature to
restrict marriage to men and women only. As
a result, the lawsuit was dismissed, and the state
restricted marriage solely to that of men and
women.
Similar lawsuits were filed in other states,
based on equal protection provisions in state
constitutions. In Massachusetts, the state’s
highest court granted gays and lesbians the
right to same-sex marriage in 2003. State
supreme courts in California and Connecticut
ruled in favor of same-sex marriage in
2008, and the Iowa Supreme Court did so as
well in 2009. In California, the voters pas sed
Proposition 8 in November 2008, amending

the state constitution to overturn the court
decision. In May 2009 the California Supreme
Court upheld the validity of the proposition.
State legislatures in Vermont, New Hampshire,
and Maine passed same-sex marriage statutes
as well. However, the Maine law was rescinded
by the voters in the November 2009 election.
In the wake of Baehr, Congress enacted the
DEFENSE OF MARRIAGE ACT OF 1996 (DOMA), Pub.
L. No. 104–199, 110 Sat. 219, which defines
marriage as a legal union between one ma n and
one woman and permits states to refuse to
recognize same-sex marriages performed in
other states. With five states permitting same-
sex marriage as of 2010, legal commentators
expected constitutional challenges to DOMA
from same-sex married couples who move to
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
470 MARRIAGE
other states and are denied legal protections and
benefits.
Each state has its own requirements concern-
ing the people who may marry. Before a state will
issue a marriage license, a man and a woman
must meet certain criteria. Some states prohibit
marriage for those judged to be mentally ill or
mentally retarded. In other states, however, a
judge may grant permission to mentally retarded
persons to marry.
Every state proscribes marriage between close

relatives. The prohibited degree of relationship is
fixed by state law. Every state forbids marriage to
a child or grandchild, parent or grandparent,
uncle or aunt, and niece or nephew, including
illegitimate relatives and relatives of half blood,
such as a half brother who has the same father
but a different mother. A number of states also
prohibit marriage to a first cousin, and some
forbid marriage to a more distant relative, in-law,
stepparent, or stepchild.
Age is an additional requirement. Every
jurisdiction mandates that a man and a woman
must be old enough to wed. In the 1800s the
LEGAL AGE was as low as 12 for females. Modern
statutes ordinarily provide that females may
marry at age 16, and males at age 18. Sometimes
a lower age is permitted with the written consent
of the parents. A number of states allow for
marriage below the minimum age if the female is
pregnant and a judge grants permission.
Every couple who wishes to marry must
comply with a state’s formal requirements. Many
states require a blood test or a blood test and
physical examination before marriage, to show
whether one party is infected with a venereal
disease. In some states, for example, the clerk is
forbidden to issue a marriage license until the
parties present the results of the blood test.
Most states impose a waiting period be-
tween the filing of an application for a license

and its issuance. The period is usually three
days, but in some states the period may reach
five days. Other states mandate a waiting period
between the time when the license is issued and
the date when the marriage ceremony may take
place. Many states provide that the marriage
license is valid only for a certain period of time.
If the ceremony does not take place during this
period, a new license must be obtained.
It has been customary to give notice of
an impending marriage to the general public.
The old form of notice was called publication
of the banns, and the upcoming marriage was
announced in each party’s church three Sundays
in a row before the marriage. These announce-
ments informed the community of the intended
marriage and gave everyone the opportunity to
object if any knew of a reason why the two
persons could not be married. In the early
2000s, the nam es of applicants for marriage
licenses are published in local newspapers.
Once a license is issued, the states require
that the marriage commence with a wedding
ceremony. The ceremony may either be civil or
religious because states may not require reli-
gious observances. Ceremonial requirements
are very simple and basic, in order to accom-
modate everyone. In some states, nothing more
is required than a declaration by each party in
the presence of an authorized person and one

additional witness that he or she takes the other
in marriage.
A minority of states have sought to curb
growing divorce rates by enacting legislation
designed to encourage couples to remain
married. Statutes in states such as Arkansas,
Arizona, and Louisiana provide fo r
COVENANT
marriages, where couples agree to impose upon
themselves limitations on their ability to divorce
one another. Twenty other states have consid-
ered, but ultimately rejected, the adoption of
similar bills. In covenant marriages, parties
mutually agree to reject “no-fault divorce,” agree
to enroll in premarital or post-wedding counsel-
ing, and also agree to divorce only under certain,
more limiting conditions, such as
DOMESTIC
VIOLENCE
,abandonment,ADULTERY,imprisonment
of a spouse, or lengthy separation. States that pass
bills recognizing covenant marriages do not
actually require such marriages, but rather
formally acknowledge them as legally viable, thus
creating legal recourse under the law for breaches
of such covenants.
Louisiana passed its covenant-marriage law
in 1997. At the time, it was touted as the first
substantive effort in two centuries to make
divorce more difficult, and lawmakers had

hoped that other states would follow suit. Since
then, however, fewer than 5 percent of
Louisiana couples have opte d to enter into such
marriages. Arizona’s version of the law is less
restrictive in that it permits an additional reason
for divorce based on the mutual consent of
the parties.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MARRIAGE 471
The most common objection to covenant
marriages comes from those who view such
measures as undue government intrusion into
family matters. The counter-argument is that
states increasingly have viewed divorce as a
legitimate matter of public concern because of
its extensive costs and the havoc it causes to
primary and extended social and economic
relationships. In this regard, covenant marriages
are no more intrusive than are state laws
that permit or deny divorce based on certain
articulated grounds.
Another objection is that covenant mar-
riages seemingly infringe upon the separation of
church and state because the mandatory
premarital counseling contained in the two
existing laws is often provided by clergy. Other
opponents to the attempted legislative measures
in other states have either expressed reservation
for laws that seem to limit adult autonomy and
choice or have themselves been active in the so-

called divorce industry. This resistance was
apparently the case in Texas and Oklahoma,
where covenant-marriage bills failed because of
opposition by key committee chairmen who
were divorce attorneys.
In addition to the failed legislative attempts
to pass covenant-marriage bills in other states,
different tactics to curb divorce have been tried.
For example, Florida enacted the Marriage
Preparation and Preservation Act in 1998, but
no state has followed Florida in requiring its
marriage-education curriculum for public high
schools. In Wisconsin a federal judge struck
down a new state law that earmarked welfare
money for clergy who encouraged long-married
couples to mentor younger couples. According
to the judge, the measure unfairly and uncon-
stitutionally favored ministers over lay persons,
such as judges or justices of the peace. Texas
passed a law allocating $3 from every marriage-
license fee to be used for marriage-education
research and reform.
FURTHER READINGS
Alsenas, Linda. 2008. Gay America: Struggle for Equality.
New York: Amulet Press.
Brummer, Chauncey E. 2003. “The Shackles of Covenant
Marriage: Who Holds the Key to Wedlock?” University
of Arkansas at Little Rock Law Review 25 (winter).
Morley, Michael T., et al. 2003. “Developments in Law and
Policy: Emerging Issues in Family Law.” Yale Law and

Policy Review 21 (winter).
Pinello, Daniel. 2003. Gay Rights and American Law. New
York: Cambridge Univ. Press.
CROSS REFERENCES
Celebration of Marriage; Domestic Violence; Family Law;
Gay and Lesbian Rights; Miscegenation; Necessaries;
Privileged Communication.
MARSHAL
A federal court officer whose job entails main-
taining the peace, delivering legal papers,
and perfo rming duties similar to those of a state
sheriff.
The term marshal originated in Old
ENGLISH
LAW
, where it was used to describe a variety of
law enforcement officers with responsibilities to
the courts and the king or queen. In contem-
porary U.S. law, it refers primarily to the
chief law officers for the federal courts (28
U.S.C.A. §§ 561 et seq.). U.S. marshals execute
federal laws within the states under the instruc-
tions of the courts. Their chief duty is to
enforce legal orders; they have no independent
authority to question whether a judge is right or
wrong. Their responsibilities include delivering
writs and processes and carrying out other
orders, which range from making arrests to
holding property in the custody of the court.
Marshals may exercise the same powers as a

state sheriff.
The chain of command for U.S. marshals
begins in the White House. The president
appoints to a four-year term one marshal for
each judicial district. Each appointment is
subject to confirmation by the U.S. Senate.
Once an appointment is confirmed, the presi-
dent retains the power to remove the marshal at
any time. In the
JUSTICE DEPARTMENT, the U.S.
Among their other
duties, U.S. marshals
are charged with
executing federal laws
within the states
under the instructions
of the courts. In
September 1962, 500
federal marshals were
sent to the University
of Mississippi campus
to protect James
Meredith when he
became the first
African American
to enroll at the
institution.
FLIP SCHULKE/CORBIS
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
472 MARSHAL

attorney general designates where each mar-
shal’s office is located. Each marshal appoints
her or his own deputies and staff, with salaries
based on schedules in federal law.
At the state and local levels, the term
marshal is also used to describe police officers
whose job is similar to that of a constable or
sheriff. It can also denote the head of a city
police or fire department.
MARSHALING ASSETS
AND SECURITIES
The process of organizing, ranking, and distribut-
ing fund s in a manner set forth by law as being the
most effective way to discharge debts that are owed
to various creditors.
When assets and
SECURITIES are marshalled,
the two-fund do ctrine is frequently applied. It
provides that when one claimant has two
possible funds in the hands of a debtor to
whom the claimant is able to resort to satisfy his
or her demand, and a second claimant has an
interest in only one of the funds, the second
claimant can force the first to satisfy the claims
out of the fund in which he or she, the second
claimant, has no lien.
v
MARSHALL, JOHN
John Marshall presided over the U.S. Supreme
Court from 1801 to 1835. Appointed by

President
JOHN ADAMS, Marshall assumed leader-
ship during a pivotal era. The early nineteenth
century saw tremendous political battles over
the future of the United States and its
Constitution, often with the Court at the center
of controversy. By the force of personality,
argument, and shrewdness, Marshall steered it
through this rocky yet formative period. He
weathered harsh criticism as the Court set
important precedents that increased its power
and defined its role in government. Historians
credit him with establishing what has been
called the American judicial tradition, in which
the Supreme Court acts as an independent
branch of government endowed with final
authority over constitutiona l interpretation.
Marshall was born September 24, 1755,
near Germantown (now Midland), Virginia. He
was the son of Thomas Marshall, a wealthy
landowner,
JUSTICE OF THE PEACE, and sheriff.
Like his father he fought in the Revolutionary
War and married into a prominent family.
His father’s tutoring significantly enhanced
his mere two years of formal education, which
▼▼
▼▼
John Marshall 1755–1835
17501750

18001800
18251825
18501850
17751775
❖
1755 Born,
Germantown (now
Midland), Va.
◆
1780 Admitted to
Virginia bar
1782–88 Served in
Va. House of Delegates
◆
1788 Attended Virginia convention to ratify the U.S. Constitution
1775–83
American Revolution
1803 Supreme Court established Court's right of judicial
review for acts of Congress in Marbury v. Madison
1801–35 Served as chief
justice of Supreme Court
1810 Supreme Court struck
down a state law as
unconstitutional for the
first time in Fletcher v. Peck
1812–14
War of 1812
1835 Died,
Washington, D.C.
1821 Supreme Court extended its judicial review

jurisdiction in Cohens v. Virginia
1796 Refused
bribe from
French foreign
ministry in
XYZ Affair
1799–
1800
Served
in
U.S.
House
◆◆
◆◆❖
1824 Supreme Court ruled that powers granted under
the Commerce Clause superseded those of states in
Gibbons v. Ogden
◆
John Marshall.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MARSHALL, JOHN 473
were augmented in 1780 by a brief attendance
at lectures in law at the College of William
and Mary.
Marshall was also influenced by
GEORGE
WASHINGTON
. Because of his service to General
Washington in the war, Marshall became a strong
Federalist. He later wrote about his mentor in his

book Life of George Washington (1805–7).
Marriage ties made Marshall a relative of a
leading Virginia political family. This helped
secure his place in society, paving the way for an
early legal and political career in the 1780s. He
specialized in appellate cases and quickly distin-
guished himself in the Virginia state bar. He also
served in Virginia’s council of state from 1782 to
1784, and in its house of delegates four times
between 1782 and 1795. But it was as a partisan
of the Federalists—the opponents of the states ’
rights–minded Republicans—that he came to
wide acclaim. The struggle between the Feder-
alists and the Jeffersonian Republicans was the
most important political contest of the day.
Marshall served as a devoted publicist and
organizer for the Federalist cause in Virginia,
and this work earned him various offers to serve
as U.S. attorney general and as an associate
justice of the Supreme Court. It also earned him
the animosity of his distant cousin, Republican
THOMAS JEFFERSON, who soon became U.S. presi-
dent and was his lifelong political adversary.
In 1798 Marshall agreed to serve Federalist
president
JOHN ADAMS as one of three U.S.
ministers to France during one of the Napo-
leonic Wars between France and Great Britain.
In a scandal known as the
XYZ AFFAIR, the French

foreign ministry attempted to solicit a bribe
from the U.S. emissaries, and Marshall became
a national hero for refusing. He quickly
emerged as the leading spokesman for
FEDERAL-
ISM
in Washington, D.C., as a member of
Congress from 1799 to 1800 and briefly as
SECRETARY OF STATE under Adams in 1800. Then
Adams lost the 1800 presidential election to
Jefferson, and the Republicans won control of
Congress. In a desperate attempt to preserve the
Federalists’ power, Adams spent the remaining
days of his administration making judicial
appointments. Sixteen new positions for judges
on federal circuit courts and dozens for justices
of the peace in the District of Columbia were
handed out during the final days of Adams’s
administration. These last-minute appointees
came to be known as
MIDNIGHT JUDGES. One of
these seats went to Marshall, who was appointed
chief justice of the Supreme Court.
On March 4, 1801, Marshall assumed his
duties as the head of the Court. Jefferson and
the Republicans were furious over Adams’s
court stacking, and they swiftly quashed the
appointments—except that, inexplicably, they
did not challenge Marshall's. Marshall kept the
Court out of the fray. He feared that in a

conflict between the judiciary and the
EXECUTIVE
BRANCH
, the Court would lose.
Marshall again faced political conflict when
in 1803 the Court ruled on a case brought by
William Marbury, whose appointment as a D.C.
justice of the peace had been one of those
barred by the Republicans. Marshall’s opinion
for the unanimous Court in
MARBURY V. MADISON,
5 U.S. (1 Cranch) 137, 2 L. Ed. 60, dismissed
Marbury’s suit on the ground that the Supreme
Court lacked jurisdiction to rule on it. But at the
same time, the Court restated the position that
it had the power to rule on questions of
constitutionality. By striking down a section of
the
JUDICIARY ACT OF 1789 (1 Stat. 73), Marshall’s
opinion marked the first time that the Court
overturned an act of Congress. Not for more
than 50 years would it exercise this power again.
Marshall asserted the right of the Supreme
Court to engage in
JUDICIAL REVIEW of the law,
writing, “It is emphatically the province and
duty of the judicial departmen t to say what the
law is.” Marbury was the crucial first step in the
evolution of the Supreme Court’s authority as it
exists today.

Marshall emphasized the need to limit state
power by asserting the primacy of the federal
government over the states. In 1819, as Marshall
reached the height of his influence, he cited the
Contracts Clause of the U.S. Constitution (art. 1,
§ 10) as a basis for protecting corporate charters
from state interference (
TRUSTEES OF DARTMOUTH
COLLEGE V
. WOODWARD,17U.S.[4Wheat.] 518, 4 L.
Ed. 629). That year he also struck a blow to
STATES’
RIGHTS in MCCULLOCH V. MARYLAND,17U.S.(4
Wheat.) 316, 4 L. Ed. 579, where he noted that
the Constitution is not a “splendid bauble” that
states can abridge as they see fit. In 1821 he
advanced the theory of judicial review, rejecting a
challenge by the state of Virginia to the appellate
authority of the Supreme Court (Cohens v.
Virginia, 19 U.S. [6Wheat.] 264, 5 L. Ed. 257).
In his written opinions, Marshall typically
relied on the power of logic and his own
ITIS, EMPHATICALLY,
THE PROVINCE AND
DUTY OF THE
JUDICIAL
DEPARTMENT TO SAY
WHAT THE LAW IS
.
—JOHN MARSHALL

GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
474 MARSHALL, JOHN
forceful eloquence, rather than citing law. This
approach was noted by Associate Justice JOSEPH
STORY
: “When I examine a question, I go from
headland to headland, from case to case.
Marshall has a compass, puts out to sea, and
goes directly to the result.”
Marshall was not without opponents. Fore-
most among them was Jefferson. In 1810
Jefferson wrote to President
JAMES MADISON that
“[t]he Chief Justice’s leadership was marked by
“cunning and sophistry” and displayed “ran-
courous hatred” of the democratic principles of
the Republicans. Jefferson led the Republican
attack on Marshall with the accusation that he
twisted the law to suit his own biases.
Although Marshall weathered the attacks,
his authority, and the Court’s, was ultimately
affected. Not all his decisions were enforced;
some were openly resisted by the president.
New appointments to the Court brought states’
rights advocates onto the bench, and Marshall
began to compromise as a leader and to make
concessions to ideological opponents.
Marshall died in office on July 6, 1835.
FURTHER READINGS
Friedman, Leon, and Fred L. Israel, eds. 1995. The Justices of

the United States Supreme Court: Their Lives and Major
Opinions, Volumes I–V. New York: Chelsea House.
Klarman, Michael J. 2001. “How Great Were the ‘Great’
Marshall Court Decisions?” Virginia Law Review 87
(October). Available online at />sol3/papers.cfm?abstract_id=270081; website home
page: (accessed August 12,
2009).
Marion, David E. 2001. “The State of the Canon in
Constitutional Law: Lessons from the Jurisprudence
of John Marshall.” Bill of Rights Journal (The William
and Mary) 9 (February).
Newmyer, R. Kent. 2002. John Marshall and the Heroic Age
of the Supreme Court. Baton Rouge: Louisiana State
Univ. Press.
Olken, Samuel R. 1999. “Chief Justice John Marshall and
the Course of American Constitutional History.” John
Marshall Law Review 33 (summer).
Simon, James F. 2003. What Kind of Nation: Thomas
Jefferson, John Marshall, and the Epic Struggle to Create a
United States. New York: Simon & Schuster.
CROSS REFERENCES
Constitution of the United States; Fletcher v. Peck; Gibbons v.
Ogden; Supreme Court of the United States.
v
MARSHALL, MARGARET HILARY
On October 13, 1999, Margaret Hilary Marshall
became the first woman chief justice of the
Supreme Judicial Court of Massachusetts.
Marshall was born in 1944 in Newcastle,
Natal, South Africa. Her mother, Hilary A. D.

Marshall, was born in Richmond, England. Her
late father, Bernard Charles Marshall, was a
native of Johannesburg, South Africa, and was a
chemist and production manager at the African
Metals Corporation.
In 1966 Marshall received a bachelor of arts
degree from Witwatersrand University in Johan-
nesburg. At Witwatersrand, Marshall majored in
English and art history. From 1966 to 1968 she
was president of the National Union of South
African Students, leading her fellow classmates in
protests against apartheid. The National Union
of South African Students was the only multi-
racial national group in the country at the time.
Marshall immigrated to the United States in
1968 to pursue an education at the graduate
level. She studied at Harvard University, where
she was awarded a graduate scholarship by the
Ernest Oppenheimer Trust. The following y ear,
she received her master’s degree in education
from Harvard. After doing so, Marshall decided
on a law career. She studied at Yale Law School
from 1973 until 1975. Although she completed
her last year of law school at Harvard, Yale
awarded her a
JURIS DOCTOR degree in 1976.
Marshall began her career as a lawyer in
private practice, working as both an associate
Margaret
H. Marshall.

COURTESY OF THE
SUPREME JUDICIAL
COURT OF
MASSACHUSETTS
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
MARSHALL, MARGARET HILARY 475
and a member in the Boston law firm of
Csaplar & Bok from 1976 through 1989. In
1978 she became a naturalized U.S. citizen. She
then continued in the private
PRACTICE OF LAW
in Boston as a partner at the prominent law
firm of Choate, Hall & Stewart from 1989
through 1992. During these years Marshall’s
practice consisted primarily of civil
LITIGATION.
She earned a reputation as an expert in the area
of
INTELLECTUAL PROPERTY, which includes patent,
COPYRIGHT, and trademark laws that protect
inventions, designs, artistic and literary pro-
ducts, and commercial symbols.
While pursuing her career in private practice,
Marshall continued in the fight against apartheid
in her native county. She urged the United States
to impose sanctions against South Africa due to
its racial
SEGREGATION. At that time, advocating
sanctions against South Africa was a treasonable

offense in her native country. Consequently, she
was not able to return to South Africa because of
her activities in the United States.
Marshall returned to Harvard University in
1992, where she served as general counsel and
vice president until 1996. In that position,
Marshall was responsible for Harvard’s legal
and regulatory affairs. Furthermore, she served
as an active member of the President’s Aca-
demic Council.
In November 1996 Marshall became an
associate justice of the Supreme Judicial Court
of Massachusetts. She was the second woman
ever to serve as a justic e on the Massachusetts
Supreme Judicial Court, which is the oldest
court in continuous service in the United States.
As a Supreme Judicial Court justice, Marshall
is known for authoring opinions that strongly
support
CIVIL RIGHTS and liberties. For example, in
one opinion, she supported the constitutional
rights of sex offenders by holding that they are
entitled to a hearing before their names are
entered on the sex-offender registry in Massa-
chusetts. Marshall is also known for opposing
CAPITAL PUNISHMENT.
On March 9, 1998, Marshall authored an
opinion in the widely publicized case of Com-
monwealth of Massachusetts v. Louise Woodward,
694 N.E.2d 659 (Mass. 1998). In that case, at the

trial-court level, a jury found Woodward, an au
pair from England, guilty of the
MURDER of
Matthew Eappen, an eight-month-old child
under her care. However, the trial judge reduced
the ju ry’s verdict from murder to
INVOLUNTARY
MANSLAUGHTER
and sentenced Woodward to time
served. Both sides appealed, and the case ulti-
mately went before the Supreme Judicial Court
for disposition. In the 46-page decision, Marshall
stated that the reduced conviction of
MANSLAUGH-
TER
, as well as the sentence imposed by the trial
judge, were lawful. In making her ruling, Marshall
explained that the trial judge merely invoked the
commonly used right to r educe a jury verdict a nd
to sentence a
DEFENDANT to time served.
After Marshall served as an associate justice
on the Supreme Judicial Court for three years,
the governor of Massachusetts, Paul Cellucci,
nominated her to be the court ’s first female
chief justice and the first female to head one of
the three branches of government in Massachu-
setts. On October 13, 1999, the Governor’s
Council approved Marshall’ s nomination. In
December of that year, Marshall was sworn in as

chief justice of the Supreme Judicial Court. As
such, she is the first naturalized U.S. citizen to
become a chief justice.
Margaret Hilary Marshall 1944–
2000
1975
1950
1944 Born, Newcastle,
Natal, South Africa
1950–53
Korean War
1961–73
Vietnam War
1976 Earned
J.D. from Yale
1978 Naturalized
as U.S. citizen
1989–92 Became
partner at law
firm of Choate,
Hall & Stewart
2000 U.S. Supreme Court’s
Bush v. Gore decision halted
presidential vote recount in Florida
1999 Sworn in as chief justice of
Mass. Supreme Judicial Court
1996 Became associate justice
of Mass. Supreme Judicial Court
1992–96 Served as general counsel
and vice president of Harvard University

▼▼
▼▼
❖
◆◆ ◆
◆
◆◆
2003 Wrote decision in Goodridge
v. the Department of Public Health,
legalizing same-sex marriage in the
state of Mass.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
476 MARSHALL, MARGARET HILARY
As Chief Justice, Marshall designates which
judges write opinions on particular cases, acts as
the liaison to the Massachusetts governor and
legislature, and has wide ranging authority over
the administration of the state’s courts. In a
keynote address delivered to the Massachusetts
Bar Association on January 2, 2000, Marshall
stated, “Because of my experiences in South
Africa, I value profoundly the central place of law
in American society law in the true sense. An
impartial judiciary. Equal justice under the law.”
In January 2002 Marshall wrote the major-
ity opinion in a unanimous decision that held
that children who are conceived by
ARTIFICIAL
INSEMINATION
after the death of their father have
the same inheritance rights as other children.

The ruling was believed to be the first on the
controversial issue by any state
SUPREME COURT.
Also in January 2002, Marshall addressed
the Massachusetts Bar Association Confere nce,
where she called for “a revolution in the
administration of justice,” stating that the court
system needed to improve its management
system as well as its staffing and budget
controls. In March 2002, her discussion of the
court system’s problems were amplified in a 52-
page report that was published by a blue-ribbon
panel appointed by Marshall.
In 2003 Marshall wrote the decision in
Goodridge v. the Department of Public Health,
440 Mass. 309, 798 N.E.2d 941 (Mass. 2003)
that legalized same-sex marriages in the state of
Massachusetts by ruling the ban on such
marriages violated the
EQUAL PROTECTION clauses
of the state constitution. The ruling made
Massachusetts the first state to legalize same-
sex marriages in the country.
Marshall is married to New York Times
columnist Anthony Lewis and has three step-
children.
FURTHER READINGS
Ellement, John R. 2009. “Top Judge: Ban ‘CSI’ in Mass.
Courtrooms.” Boston.com Available online at http://
www.boston.com/news/local/breaking_news/2009/12/

top_judge_ban_c.html (accessed January 2, 2009).
Lavoie, Denise. 2002. “Court Rules on Posthumous
Conception.” Associated Press. (January 2)
Teicher, Stacy A. 2000. “A Subtle Revolution as Women
Lead the Bench.” Christian Science Monitor. (January 5).
MARSHALL PLAN
After WORLD WAR II, Europe was devastated
and urgently needed an organized plan for
reconstruction and economic and technical
aid. The Marshall Plan was initiated in 1947
to meet this need.
The originator of the plan, U.S. Secretary of
State George C. Marshall, introduced it in a
speech at Harvard University on June 5, 1947. He
pointed out two basic reasons for providing aid to
Europe: the United States sought the reestablish-
ment of the European countries as independent
nations capable of conducting valuable trade with
the United States; and the threat of a Communist
takeover was more prevalent in countries that
were suffering economic depression.
In 1947 a preliminary conference to discuss
the terms of the program convened in Paris.
The Soviet Union was invited to attend but
subsequently withdrew from the program, as
did other Soviet countries.
Sixteen European countries eventually par-
ticipated, and, in July 1947, the Committee for
European Economic Cooperation was estab-
lished to allow representatives from member

countries to draft a report that listed their
requirements for food, supplies, and technical
assistance for a four-year period.
The Committee for European Economic
Cooperation subsequently became the Organi-
zation of European Economic Cooperation, an
expanded and permanent organization that was
responsible for submitting petitions for aid. In
1948, Congress passed the Economic Coopera-
tion Act (62 Stat. 137), establishing funds for
the Marshall Plan to be administered under the
Economic Cooperation Administration, which
was directed by Paul G. Hoffman.
Between 1948 and 1952, the sixteen-member
countries received more than $13 billion dollars
in aid under the Marshall Plan. The plan was
generally regarded as a success that led to
industrial and agricultural production, while
stifling the Communist movement. The plan
was not without its critics, however, and many
Europeans believed the
COLD WAR hostilities
between the Soviet nations and the free world
were aggravated by it.
v
MARSHALL, THURGOOD
Thurgood Marshall, the first African American to
serve on the U.S. Supreme Court, saw law as a
catalyst for social change. For nearly 60 years, as
both a lawyer and a jurist, Marshall worked to

dismantle the system of
SEGREGATION and improve
the legal and social position of minorities.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MARSHALL, THURGOOD 477