Those very early Maine laws…
So The Legal Genealogist is getting ready to head off to Maine this weekend for the Maine Genealogical Society’s 2016 Annual Fall Conference in Brewer and, as usual, decided to delve into that state’s early laws.
And immediately ran into a snag.
Because there aren’t any early Maine laws.
Oh, it wasn’t all that much of a lawless frontier in the early days of the Republic, no.
It’s just that … well … it wasn’t a state in the early days of the Republic.
The Maine that exists today didn’t come into being until 1820. That’s when Maine became the 23rd state as part of the Missouri Compromise, which allowed Missouri to enter the union as a slave state and Maine as a free state.1
So the laws of the State of Maine begin with the adoption of the Constitution of 1820, “in order to establish justice, ensure tranquillity, provide for our mutual defence, promote our common welfare, and secure to ourselves and our posterity the blessings of liberty,”2 and in the adoption of a fairly comprehensive set of laws at a first session of the Legislature there in 1820-21.3
Now there are some pretty interesting laws in that first set of state laws passed in 1820-21 and published by order of the Legislature of March 1821. Among them:
• A law that made it illegal to dig up or remove dead bodies.4
• A law that made it illegal to take a dead body in order to try to collect a debt.5
• A law that made it illegal to sell bad or unwholesome food.6
• A law that sought to control damage from fireworks.7
• A law that said a murder case had to be tried in the county where the death occurred, even if the mortal wound was inflicted elsewhere. And that was the same rule if the victim was “feloniously stricken, poisoned or injured, on the high seas.”8
Before 1820, well… that’s a different story.
Because, of course, before 1820, the area that today is Maine was part of Massachusetts. Or… well … maybe part of New York. Or both.
You see, in the 1600s there were mostly competing claims to parts of what is today Maine.
The Charter of the Council of Plymouth, the 1620 charter from King James to a bunch of English nobles, is the first real part of Maine’s legal history and it put what is modern-day Maine into the same territory as modern Massachusetts under English nobles.9 Part of the territory was granted in 1669 to the Duke of York by Charles II, and that put it under the control of what became New York.10
Of course, the English claims weren’t the only ones either: the French claimed the area as well and their claims were contested until the middle of the 18th century when the French and Indian War was fought.11
So the legal history of early Maine includes a little bit of this and a little bit of that…
The best early reference is the Maine Historical Society’s Province and Court Records of Maine.12 A now-four-volume set, this reference set covers all of the surviving records of the courts of the day (1607-1691, that is) — and it really was the courts that ran the show.
There was a lot of jockeying for control during that time, with land grants for parts of Maine being issued by local nobility in Maine, by the colonists in Massachusetts, by those in New York, and don’t forget the French.
Finally, the English got their act together with a totally new charter for the Massachusetts Bay Colony in 1691, and that put Maine under the control of Massachusetts as a district of the Commonwealth of Massachusetts starting in 1691.
And that means, for the most part, the early laws of Maine are the early laws of Massachusetts, and you need to look at the Acts and Resolves Passed by the General Court of Massachusetts.13
But only until 1820. When Maine started passing its own laws.
Like “An Act respecting Houses of Correction, and for suppressing and punishing of Rogues, Vagabonds, common Beggars and other idle and disorderly persons.”14
Or “An Act for the preservation of certain Fish.”15
Or… sigh… warming the cockles of our genealogical hearts… “An Act for recording Births and Deaths by the Clerks of Towns”…16
Just remember, though, that the very earliest Maine laws … aren’t in Maine at all.
SOURCES
- “Maine,” History.com (http://www.history.com/ : accessed 11 Sep 2016). ↩
- Preamble, Maine Constitution of 1820, in Laws of the State of Maine, 2 vols. (Brunswick, Me. : State Printer, 1821), I: 21; digital images, Google Books (http://books.google.com : accessed 11 Sep 2016). ↩
- See ibid. ↩
- Ibid., “An Act to protect the Sepulchres of the Dead,” I: 93. ↩
- Ibid., “An Act to prevent the arrest of Dead Bodies,” I: 93. ↩
- Ibid., “An Act against selling unwholesome Provisions,” I: 104. ↩
- Ibid., “An Act to prevent damage from firing Crackers, Squids, Serpents and Rockets within the State,” I: 115. ↩
- Ibid., §§40-41, “An Act regarding Judicial Process and proceedings,” I: 266. ↩
- See Michael G. Chiorazzi and Marguerite Most, Prestatehood Legal Materials: A Fifty-State Research Guide (New York: Haworth Inf. Press, 2005), 482. ↩
- Wikipedia (http://www.wikipedia.com), “History of Maine,” rev. 29 Aug 2016. ↩
- Ibid. ↩
- Charles Thornton Libby, et al., editors, Province and Court Records of Maine, 4 vols. (Portland, Me. : Maine Historical Society, 1928-1958). ↩
- See generally “Massachusetts Acts and Resolves Available in the Internet Archive,” Massachusetts State Library (http://www.mass.gov/anf/research-and-tech/oversight-agencies/lib/ : accessed 11 Sep 2016). ↩
- “An Act respecting Houses of Correction, and for suppressing and punishing of Rogues, Vagabonds, common Beggars and other idle and disorderly persons” in Laws of the State of Maine, 2 vols. (Brunswick, Me. : State Printer, 1821), I: 451; digital images, Google Books (http://books.google.com : accessed 11 Sep 2016). ↩
- Ibid., “An Act for the preservation of certain Fish,” II: 773. ↩
- Ibid., “An Act for recording Births and Deaths by the Clerks of Towns,” II: 596. ↩
I have to tell folks all the time when researching ancestors in Maine, New Hampshire and even Massachusetts to pay attention to the history and the border changes. Parts of New Hampshire were Norfolk County, Massachusetts, which is now south of Boston! York County, Massachusetts is now Maine, but not until the 1820 Compromise (which is a long story in itself!). Check everywhere for records! Even my dear Nutfield, which is now Londonderry, New Hampshire, was a grant of land from the MASSACHUSETTS governor Shute to the Scots Irish in 1718. Governor Wentworth of New Hampshire incorporated this land as the town of Londonderry in 1722 So where do we find those records?
The border change issue does keep us on our toes, doesn’t it? 🙂
That’s my state and research specialty. Don’t forget to start your pre-1820 reseach in Alfred, the York County seat, York being the oldest county in the state and home of some of the earliest tangible deed transactions. Town histories are as important as the vital records themselves sometimes – with all the tug and pull over lumber and land, almost every town in the state seems to have lost records to fire, flood or carelessness. This state certainly has its challenges, but when you unravel them you begin to appreciate that which makes this state so great.
It makes me wonder — why WOULD someone try to take a dead body to collect a debt? How prevalent were attempts to do so???
You find the answer, and I’ll give you the space to report your findings — at length. (I wondered exactly the same thing… 🙂 )
Such a law is still found in Washington State statues.
http://apps.leg.wa.gov/rcw/default.aspx?cite=68.50&full=true#68.50.120
68.50.120
Holding body for debt—Penalty.
Every person who arrests, attaches, detains, or claims to detain any human remains for any debt or demand, or upon any pretended lien or charge, is guilty of a gross misdemeanor.
[ 1943 c 247 § 27; Rem. Supp. 1943 § 3778-27. Formerly RCW 68.08.120.]
Bouvier’s Law Dictionary, 1862 edition, under the entry DEAD has:
2. To take up a dead body without lawful authority…
3. The preventing a dead body from being buried, is also an indictable offence.
These were punishable by statute.
There may be something in Blackstone’s Commentaries but I don’t have time to search it right now.
I love these ancient law books for solving things.
We all understand what it means, Doug. The question is, how common was it to actually try to grab a dead body to collect a debt? In other words, why was such a law enacted in the first place?
In brief, I suspect it is a very old law from the parent Massachusetts law code related to a feudal practice in Europe that permitted a creditor to seize the body of a debtor. Kanavan’s Case [1 Me 226] is mentioned as a citation of related case law dealing with arrest of dead bodies, so someone may have tried it in Maine. A Google Book search for “arrest of dead bodies” yields some interesting references.
And the Aroostok war but that was later in 1848
Later true, but another disputed boundary. For folks in the disputed area, records might be in Canada. And then there were the portions of Maine occupied by the British during the war of 1812, and under their control for a couple years. (Of course I have ancestors who were there then.)
Maine Laws vol 1&2 : vol 1 pp 92-99 or so (I used a different e-version) discuss not moving a body without the Sheriff or Corner, as in a suspicious death. Also discussed trade ship wreck – holding a body/bodies in lieu of payment for debts that are owed, or until restitution is paid to the owner(s) of the ship by the company that insured the vessel? Am I close?
That’s where I lose part of my maternal ancestors for a time. Edward KING and Mary SCALES were from North Yarmouth, Cumberland, MA [now ME]. All nine of their children were born there. My ancestry follows their youngest son, Eliab. Eliab [Jr.] marries and has several children there, but somewhere along the way he’s lost until his death in Newport, RI. His next to the youngest son, Edvardus KING, was born in New Boston [Gray], ME , RI in 1784. The youngest, Nicholas, was born in 1787, location uncertain. He married and died in Newport, RI. Eliab III married a girl from Albion, ME, in Newport, RI, and they both died there. I need to learn more about that area in Maine to locate Eliab [Jr.] before he removes to RI.