Maine law

“ Congress can not change a law of domestic relation in the State of Maine; no more can it in the State of Missouri. Any statute which proposes to do this is a mere nullity; it takes away no right, it confers none. If it remains on the statute book unrepealed, it remains there only as a monument of error and a beacon of warning to the legislator and the statesman. To repeal it will be only to remove imperfection from the statutes, without affecting, either in the sense of permission, or of prohibition, the action of the States or of their citizens. ”

“ They do but show their own unwisdom herein. The Publicans know far better, and they avow, there is nothing they so much dread as local option. In Maine itself, a State frightfully drunken in the first half of the century, the opponents of Neal Dow in the State Legislature scornfully allowed him to carry a Bill which gave to each parish Permission to accept his measure as law. ”

“ Maine is undoubtedly right in connecting the theories of Bentham and Austin with the overwhelming activity of legislatures in modern times. And formal legislation, as he elsewhere shows, comes late in the history of most legal systems. Law is generated in other ways, which seem irreconcilable with anything like legislation. Not only the tax-gathering emperors of the East, indifferent to the condition of their subjects, but even actively benevolent governments have up to a certain point left the law to grow by other means than formal enactments. ”

“ The tourist, who went ashore with a view to breakfast, said that it would be a good place to stay in and go a-fishing and picnicking on Campobello Island. It has another advantage for the wicked over other Maine towns. Owing to the contiguity of British territory, the Maine Law is constantly evaded, in spirit. The thirsty citizen or sailor has only to step into a boat and give it a shove or two across the narrow stream that separates the United States from Deer Island and land, when he can ruin his breath, and return before he is missed. ”

“ Among other duties the commissioners care for county property, manage county business and take charge of county roads. Maine has no general law under which cities are chartered, and does not even set a minimum population. A town may, therefore, be incorporated as a city whenever it can obtain from the legislature a city charter which a majority of its electorate prefers to a continuance under its town government ”

“ They had read history, so far as they troubled to read it at all, "backwards," and had invested early man and early society with conceptions which, as a matter of fact, are themselves historical products. The jurists, for example, had in their analysis of legal sovereignty postulated the commands of a supreme lawgiver by simply ignoring the fact that, in point of time, custom precedes legislation and that early law is, to use Maine's own phrase, "a habit" and not a conscious exercise of the volition of a lawgiver or a legislature. ”

“ The Kansas statute is substantially like the Michigan, but more vague in wording (Kansas, 1889, 257) . It denounces arrangements, contracts, agreements, etc., which (also) tend to advance, reduce, or control the price or the cost to the producer or consumer of any productions or articles, or the rate of insurance or interest on money or any other service. The Maine law (Maine, 1889, 266, 1) is aimed only against the old-fashioned trust ”

“ Maine warned his countrymen against the insularity which results from ignorance of all law and institutions save one’s own; his example has shown the benefit of the contrary habit. His prominent use of Roman law and the wide range of his observation have made his works as intelligible abroad as at home, and thereby much valuable information—for example, concerning the nature of British supremacy in India, and the position of native institutions there—has been made the property of the world of letters instead of the peculiar and obscure possession of a limited class of British public servants. ”

“ And so petitions poured in on the legislature of Maine asking for the submission of an amendment to the constitution which should ground the prohibitory principle in the state’s organic law. This request was at first declined, not from antagonism to prohibition itself, for neither party dare attack that by any open declaration, but on the ground that since the fathers fell asleep all things might well continue as they were; new fangled ideas were well enough for new regions, but said the average politician,
“The good old ways are good enough for me.” ”

“ A majority of 700 in a total poll of 120,000 is clearly not a sufficient mandate for a drastic law which previous experience has conclusively shown cannot be enforced successfully in the urban districts of the State." Successful enforcement of prohibition on a State basis would appear to be hopeless. The history of Prohibition in Maine will for ever form an eloquent proof of the mischief which comes when the ancient ecclesiastical failure to distinguish between the sphere of morals and the sphere of law is perpetuated under the conditions of modern life. ”

“ In 1846 Maine passed the first prohibitory liquor law, and in 1884 inserted a prohibition clause in the Constitution. The laws against the manufacture of and the traffic in intoxicating liquors are very strict and supported by severe penalties. Liquors for medicinal, mechanical, and manufacturing purposes are sold in towns and cities under the supervision of State agents. Husbands are not liable for debts contracted by their wives in their own name, but the latter may be sued for them. ”

“ He subsequently became a merchant in his native city and rose to a position of importance in its business and political life. His chief interest, however, was in the temperance question, and he early attracted attention as an ardent champion of the prohibition of the sale of intoxicating drinks. He drafted the drastic Maine prohibitory law of 1851. He was mayor of Portland in 1851 and in 1855, and was a member of the Maine legislature in 1858–1859. Early in the Civil War he became colonel of the 13th Maine Volunteer Infantry. ”

“ But Maine's admirable style and skill in exposition will make his works models of investigation even if their statements of fact require modification.
Maine's works are:
‘Ancient Law: its Connection with the Early History of Society and its Relation to Modern Ideas,’ 1861. ‘Village Communities,’ 1871. ‘Early History of Institutions,’ 1875. ‘Dissertations on Early Law and Custom,’ 1883. ‘Popular Government,’ 1885. 6. ‘International Law’ (Whewell lectures, 1887) , 1888. Papers on ‘Roman Law and Legal Education’ (from ‘Cambridge Essays,’ 1856) ”

“ No one who is interested in the growth of human ideas or the origins of human society can afford to neglect Maine's Ancient Law. Published some fifty-six years ago it immediately took rank as a classic, and its epoch-making influence may not unfitly be compared to that exercised by Darwin's Origin of Species. The revolution effected by the latter in the study of biology was hardly more remarkable than that effected by Maine's brilliant treatise in the study of early institutions. ”

“ The growth of the sense of common welfare has been greatly impeded by court decisions based on common-law doctrines which the constitution was designed to displace, decisions sometimes tincturing later legislation; yet several courts have fairly kept pace with the growing sense of eternal equities among the people—they who adopted the constitution partly to provide a judicative mechanism adapted to their own needs and subject to their own supreme will: The decision of the supreme court of Maine that the public are entitled to a voice in the management of forests affecting stream-flow ”

“ Even the rudiments of Roman law were not then included in the ordinary training of English lawyers; it was assumed at the universities that any good Latin scholar could qualify himself at short notice for keeping up such tradition of civilian studies as survived. Maine cannot have known much Roman law in 1847, but in 1856 he contributed to the Cambridge Essays the essay on Roman law and legal education, republished in the later editions of Village Communities, which was the first characteristic evidence of his genius. ”

“ Maine, in his treatise on Ancient Law in its relations to Modern Thought, shews from the history of law, and from what is known of the primitive institutions of mankind, the origin of much that has lasted till now, and has a firm footing both in the laws and in the ideas of modern times ”

“ The men whom he influenced were very eminent, but in numbers they were few. As a rule, students for the bar never at any time paid any attention to his teaching. The first published lectures were almost forgotten when Mr (afterwards Sir Henry) Maine was appointed to lecture on jurisprudence at the Inner Temple. Both in his private and public lectures Maine constantly urged upon his hearers the importance of Austin’s analytical inquiries into the meaning of legal terms. He used to say that it was Austin’s inquiries which had made a philosophy of law possible. ”

“ Therefore, it must be assumed that they certainly were, and also that they were all citizens of the same State and that the State from which incorporation was obtained. [Footnote: Louisville, Cincinnati and Charleston R. R. Co. v. Letson, 2 Howard's Reports, 497, 555; Ohio and Mississippi R. R. Co. v. Wheeler, I Black's Reports, 286.]
Sir Henry Maine maintained that legal fictions were the rude device of early stages in government, and to add to them disturbed the symmetry of a legal system and was unworthy the approval of modern courts. [Footnote: Ancient Law, 26.] ”

“ No person shall be held to answer for a capital or infamous crime, unless on a presentment or indictment of a grand jury, except in cases of impeachment, or in such cases of offenses, as are usually cognizable by a justice of the peace, or in cases arising in the army or navy, or in the militia when in actual service in time of war or public danger. The Legislature shall provide by law a suitable and impartial mode of selecting juries, and their usual number and unanimity, in indictments and convictions, shall be held indispensable. ”

“ He would probably regard the empire of Runjeet Singh as divided into small districts—an assumption which inverts no doubt the true historical order, the smaller group being generally more ancient than the larger. But provided that the other conditions prevail, the mere fact that the law is administered by local tribunals for minute areas should make no difference to the theory. The case described by Maine is that of the undoubted possession of supreme power by a sovereign, coupled with the total absence of any attempt on his part to originate a law. ”

“ Portland, 69 Maine, 278, it was held that a statute similar to the one now in question which took away the action from citizens of other States or countries that did not give a like remedy in like cases to citizens of Maine was unconstitutional, as denying to such foreigners the equal protection of the laws. ”

“ Whenever the Governor upon complaint, due notice and hearing shall find that a sheriff is not faithfully or efficiently performing any duty imposed upon the sheriff by law, the Governor may remove such sheriff from office and appoint another sheriff to serve for the remainder of the term for which such removed sheriff was elected. All vacancies in the office of sheriff, other than those caused by removal in the manner aforesaid shall be filled in the same manner as is provided in the case of judges and registers of probate. ”

“ The expression universitas juris is not classical, but for the notion jurisprudence is exclusively indebted to Roman law; nor is it at all difficult to seize. We must endeavour to collect under one conception the whole set of legal relations in which each one of us stands to the rest of the world. These, whatever be their character and composition, make up together a universitas juris; and there is but little danger of mistake in forming the notion, if we are only careful to remember that duties enter into it quite as much as rights. Our duties may overbalance our rights. ”

“ If we insist on reading the history of morality as reflected in jurisprudence, by turning our eyes not on the law of Contract but on the law of Crime, we must be careful that we read it aright. The only form of dishonesty treated of in the most ancient Roman law is Theft. ”

“ The monopoly of mind by law is broken down. The crowd at the morning audience of the great Roman jurisconsult lessens. The students are counted by hundreds instead of thousands in the English Inns of Court. Art, Literature, Science, and Politics, claim their share of the national intellect; and the practice of jurisprudence is confined within the circle of a profession, never indeed limited or insignificant, but attracted as much by the rewards as by the intrinsic recommendations of their science. This succession of changes exhibited itself even more strikingly at Rome than in England. ”

“ It would soon be seen that the separation of the Law of Persons from that of Things has no meaning in the infancy of law, that the rules belonging to the two departments are inextricably mingled together, and that the distinctions of the later jurists are appropriate only to the later jurisprudence. From what has been said in the earlier portions of this treatise, it will be gathered that there is a strong à priori improbability of our obtaining any clue to the early history of property, if we confine our notice to the proprietary rights of individuals. ”