Donald G. Alexander
Retired Maine Supreme Judicial Court Justice Donald G. Alexander outside the Kennebec County Courthouse in Augusta on Dec. 7. Alexander is the author of a new and revealing history of the Maine judiciary. (Portland Phoenix/Jim Neuger)
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It was a simple enough project.

Justice Donald G. Alexander, Chief Justice Leigh Saufley, and other justices of the Maine Supreme Judicial Court in 2019 were discussing how the judicial system could participate in Maine’s bicentennial observances in 2020, marking the two centuries since Maine achieved statehood on March 15, 1820.

But almost exactly a year later, Gov. Janet Mills issued her first emergency proclamation for the coronavirus pandemic. Like almost all events planned for later in the year, the court bicentennial never took place.

Alexander had envisioned a pamphlet updating the 1920 centennial court history written by then-Chief Justice Leslie C. Cornish, a lively affair with many pungent quotes, of which Alexander makes abundant use.

But with more time – Alexander and Saufley had just left the court – he decided to dig into the research, and over the next year produced an amazing amount of relevant facts, many never before reported.

While the title – “The Maine Supreme Judicial Court and the Maine Judiciary, the 200th Anniversary” – and presentation by Tower, a legal publisher now based in Standish, describe a reference book, its contents belie its austere appearance.

There are many good stories from the high court’s early days and dramatic examples of the court system’s failures and triumphs. With so few state judicial histories of note, and the absence of any comprehensive Maine political history since the 19th century, Alexander’s book deserves a readership well beyond judges, attorneys, and court clerks.

Malaga Island

Talking about the book in two recent interviews, Alexander immediately pointed to the complete absence of any judicial record from two of the darkest episodes in Maine’s treatment of Black or “colored” people, and its American Indian tribes – both of which occurred in 1912, at the height of the eugenics movement.

The Malaga Island dispossession is the better known of the two.

This small, 41-acre island off the coast of Phippsburg, not far from Bath, was inhabited after the Civil War, and perhaps earlier, by a poorly documented group of settlers – some of them undoubtedly freed slaves traveling to the North, with other mixed-race and some white families.

The original settlers included descendants of Benjamin Darling, a free Black man who lived on nearby Horse Island, beginning in 1794.

What is undisputed is that shortly after the turn of the century, the settlement came under suspicion among the dominant white, Anglo, and Protestant majority that had led Maine since statehood.

In 1905, the state decided to seek guardianship for many of the islanders. In legal terms, the close-knit island families were now considered “feeble-minded.” The petitions, which were granted, meant among other things they no longer had voting rights under constitutional provisions then in effect.

Alexander could find no record of the probate court decisions, except one name, “Judge Lowell” – probably the probate judge who approved the guardianships.

He also theorizes that the early promotion of Maine as a tourist destination focused attention on the “different” people living so close to the mainland. In any event, in 1912, Gov. Frederick Plaisted, a Democrat, visited the island and issued a chilling description, quoted in the Brunswick Record, then a weekly newspaper.

“The best plan,” Plaisted said, “would be to burn down the shacks with all their filth. Certainly, the conditions are not creditable to our state, and we ought not to have such things near our front door.”

Plaisted ordered all residents to leave the island and had stragglers evicted. “Several individuals were institutionalized, some were sterilized, and all were displaced,” Alexander reported. “State employees even exhumed the cemetery remains,” transferring them to what was then the Maine School for the Feeble Minded, later the Pownal State School, and finally Pineland before it was closed in 1996. The remains were buried in unmarked graves.

No one attempted any legal proceedings in opposition to the state’s response to the public agitation, which appeared in newspapers as early as 1902.

Yet Alexander says there were ample grounds to object: under Maine’s “adverse possession” law the Malaga islanders had been there far longer than needed to claim ownership. Instead, Plaisted designated descendants of a white settler, Eli Perry, as the owners, even though none lived on the island.

The “rediscovery” of the islanders dates from about two decades ago, and a milestone was reached when state Sen. Craig Hickman, one of two Black members of the Legislature, led an archaeological tour and ceremony in 2018.

Passamaquoddy lands

A still-obscure incident also occurred in 1912, when Congress approved a bill authorizing, at state request, a large dam on the St. Croix River along the Canadian border in what is now Baileyville. It flooded Passamaquoddy tribal land, part of Indian Township in the Pleasant Point reservation.

The dam provided power for a new paper mill, which still exists. No one even mentioned the proceedings to the tribe; Alexander found no evidence of any legal filings.

As tribal Chief William Nicholas much later recalled, “What was once a river became an impoundment of water that still sits over thousands of acres of reservation land. This all happened without consent or even consultation.”

Alexander says construction of the Grand Falls dam violated a portion of the Maine Constitution recognizing rights and obligations inherited from Massachusetts – including specific duties involving American Indian tribes. Each tribe had a (white) state agent to represent its interests, but this one raised no objection.

Like the Malaga Island settlers, the Passamaquoddy tribe should have had recourse under the Mill Act, a state law that provided for landowner compensation of flooded property. But again, no legal proceedings ensued.

Adding insult to injury, in 1995, at the behest of sport fishermen and over tribal objections, the Legislature closed fish passage for alewives, or river herring, that still existed by the millions in the St. Croix watershed. It wasn’t until 2013 that the fish passage was finally restored.

Dred Scott

There were also high points in the Supreme Judicial Court history. One was a ringing response to the infamous 1857 Dred Scott decision by the U.S. Supreme Court.

In the opinion upholding the Fugitive Slave Act, U.S. Chief Justice Roger Taney wrote that Blacks “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”

Less than four years later, the nation was embroiled in the Civil War.

Maine had come into the union in a fashion deeply resented by many of its citizens. To “balance” admission of Maine as a free state, Southern states insisted on the simultaneous admission of Missouri as a slave state. Abolitionist sentiment ran as high in Maine as anywhere in the North.

When Dred Scott was handed down, the Supreme Judicial Court responded. The Maine Senate requested an “Opinion of the Justices,” as Massachusetts and a handful of other states also allow, questioning whether “free colored persons, of African descent,” are legally voters in Maine.

The court answered in the affirmative. Associate Justice John Appleton wrote a virtual treatise, going all the way back to Roman law, in couching his opinion.

Maine Chief Justice John Tenney summed it up: “From the adoption of the Constitution to the present day, it is believed there has been no instance in the state in which the right to vote has been denied to any person resident within the state, on account of his color.”

It’s the same unamended language that also makes Maine one of only two states, along with Vermont, that allows prisoners to vote.

The stolen election

Just about everyone with an interest in the topic knows what happened in January 1880, when in response to two rival militias – mobs, really – gathering on the Statehouse lawn representing two rival legislatures and governors, Joshua Chamberlain rode to the rescue.

Chamberlain, the hero of the Little Round Top at Gettysburg and four-term governor of Maine, had returned to his teaching duties at Bowdoin College but was also head of the state militia – what we now know as the National Guard, based in Bangor.

After months of infighting following the September state election, Chamberlain rode down from Bangor, appeared on the Statehouse balcony facing what’s now Capitol Park, and bared his chest, saying that whoever fired would have to shoot him first.

After a compatriot stepped in front to protect Chamberlain – and after a long silence – the mob began to disperse and the crisis was over.

It’s a great story, but it completely overlooks what happened earlier, in most accounts amounting to “the unpleasantness.” The reality is starker, and much more interesting.

Outgoing Gov. Alonzo Garcelon, a Democrat, had lost his re-election battle and decided, with the aid of the executive council and the connivance of the secretary of state, to steal the election and seat a friendly Legislature that would certify his “victory.”

It helps to know that Maine was then a maelstrom of competing parties and interests, with the two major parties not always dominant. And because the state Constitution then required a majority for election, gubernatorial elections – then for a one-year term – had been frequently sent to the House of Representatives. The popular vote winner did not always become governor.

Garcelon was a prime example. In the 1878 election, he’d finished far behind the Republican candidate, Selden Connor, and also the National Greenback Party’s Joseph Smith.

But by melding support in the House, no candidate having polled a majority, Garcelon eked out a win. The next year, he did even worse.

The Republican candidate, Daniel Davis, did better than Connor, while Smith also increased his vote total, while Garcelon fell to fewer than 22,000 votes. More important, election returns made it clear Republicans now had a majority in the House of Representatives and would choose their candidate when they convened in January.

So Garcelon decided to cheat. The town and cities sent their election sheets to Augusta in a way that now seems remarkably haphazard but worked well enough then.

Seizing on technicalities such as the use of initials rather than spelled-out names, Garcelon and the executive council, previously elected by the outgoing Legislature, disqualified enough Republican votes to transform the outcome.

In Portland, a slate of five elected Republican House members was replaced by Democrats and “Fusionists.” The same thing happened in Lewiston. (In those days, Democrats were usually strongest in rural areas, while Republicans controlled the cities.)

Instead of a deficit of seats, Garcelon’s proclamation on Dec. 17 showed Democrats and Fusionists with a 20-vote House majority and controlling the Senate by nine.

Word traveled slowly back then. It was only gradually that citizens, who often paid little attention to the vote-counting in Augusta, realized what was going on.

Soon, though, Garcelon began to realize the weakness of his position, and he petitioned the Supreme Judicial Court with a series of questions, asking for the “solemn occasion” prescribed by the Constitution.

It’s not clear what he expected, but the justices went to work, rapidly, and soon produced a unanimous report. It was not what Garcelon wanted to hear.

While acknowledging minor discrepancies in the returns, the court said on Jan. 3, 1880, one day before convening, that the tallies reported by municipalities should be accepted: “It is enough if the returns can be understood, and if understood, full effect should be given to their natural and obvious meaning. They are not to be strangled by idle technicalities.”

Republican legislators followed up with their questions to the court, which effectively mirrored the response to the Democrats. While Chamberlain’s role was undoubtedly important, it could also be said that the justices were the heroes of the day, essentially “stopping the steal” with well-considered, measured legal conclusions.

Alexander is in awe of how quickly and efficiently the justices worked.

“They were meeting on a moment’s notice, discussing complicated, technical questions on election law, and producing opinions the ordinary voter could understand,” he says.

The aftermath was filled with ironies. The legitimate governor, Daniel Davis, served only a year, defeated for reelection for the first two-year term by none other than Harris Plaisted, uncle of Frederick Plaisted, who later evicted the Malaga Island settlers. The Constitution was also changed to require a plurality, not a majority, for election.

Not every intervention was as consequential or successful, but when the Supreme Judicial Court had an adequate record before it, its decisions more often than not brought credit to the state.

Alexander’s history carries the story right up to 2021 and contains short biographies of every judge who has served on the Supreme, Superior and District courts. It isn’t light reading, but it may be essential for anyone seeking to understand and appreciate Maine’s democratic traditions.

Douglas Rooks, a Maine editor, commentator, and reporter since 1984, is the author of three books. His first, “Statesman: George Mitchell and the Art of the Possible,” is now in paperback. He welcomes comments at [email protected].

Leigh Saufley
Former Maine Chief Justice Leigh Saufley is now dean of the University of Maine School of Law. (Portland Phoenix/Jim Neuger)

Former chief justice: Continuity marks Maine judiciary

In the preface to his new history of the state judiciary, retired Maine Supreme Judicial Court Justice Donald G. Alexander gives abundant credit to three others – former Chief Justice Leigh Saufley, now dean of the University of Maine School of Law in Portland; Derek Langhauser, Gov. Janet Mills’ first legal counsel, and Paul Mills, a Maine historian who is the governor’s brother.

Saufley said the credit is mostly undeserved.

“We did brainstorm about what the book might be, but Don has a brain that’s always brainstorming, she said. “As usual, he was the one who did all the work.” (Although Mills did suggest many, mostly small improvements, Saufley said.)

She said she appreciates the sense of history the volume brings to today’s court system and said it reminded her of one of her proudest moments: insisting that the new Capital Judicial Center in Augusta be attached to the old Kennebec County Courthouse by a sky bridge.

“Nobody else thought it was needed,” Saufley said, “but I knew it was.”

Saufley said she was most surprised by what she learned about the court’s early years, when – like the U.S. Supreme Court after the Constitution was ratified in 1789 – the judiciary started from ground zero.

There were just three Supreme Judicial Court judges, riding circuit throughout the state to hear cases in makeshift courthouses, taverns, and even private homes. And there were just 207 lawyers in Maine, and many communities had just one.

Judges and lawyers traveled largely by horseback since roads were too primitive to allow carriages. By one account, “The rather lengthy rides were not the only source of contact between lawyers; they stayed at local inns and spent their evenings together. Flip and punch, the favorite beverages of the day, were consumed in quantity, and late nights were frequent. The travelers staged mock trials in which a losing party could expect that the verdict would entail the purchase of liquor or tobacco for his opponent.”

Saufley said the book allows readers to trace the courts from the early days “forward to where each individual picked up in the court system.” That sense of continuity, she said, is vital as the courts move into uncharted territory in Maine’s third century.

— Douglas Rooks