William Cushing (1732-1810)

Source

Jurist

Early Years. William Cushing was born in Scituate, Massachusetts, on 1 March 1732, the son of John and Mary Cushing. Both his father and grandfather were superior court judges and members of the governor’s council. He attended a Latin school in Scituate and then Harvard College, graduating in 1751. He taught school for a year and considered preparing for the ministry, but in 1754 he began to study law as an apprentice in the office of Jeremiah Gridley. Admitted to practice in 1755, he practiced law in Scituate for five years and then moved to the district of Maine (still part of the province of Massachusetts Bay) as the lawyer for the Kennebec Proprietors, a land-development company. He was admitted as a barrister in 1762.

Provincial Judge. Cushing practiced law in Maine for eleven years, also sitting as a justice of the peace and a probate court judge. In 1772, when his father retired from the superior court, Cushing was named to fill the vacancy. As the political turmoil continued to develop in Massachusetts in the years leading up to the Revolution, Cushing was able to demonstrate political neutrality between the Whig and Tory factions. By the end of 1772 the British proposed to have the Crown, rather than the colonial assembly, pay the superior court judges. The objective was to free the judges of local political pressure, or to assure their loyalty to the Crown, depending on one’s point of view. Cushing refused the Crown’s salary, as did all but one of his colleagues, Chief Justice Peter Oliver. Cushing demonstrated his concern for the dignity of the judicial system, however, in a related matter. The public uproar against Oliver was so great that jurors refused to sit and be sworn when Oliver sat on the bench. Cushing, even though he differed with Oliver on the propriety of accepting the Crown’s grant, had no trouble holding such jurors in contempt of court.

State Judge. As the provincial government fell into disarray in 1775, all of the superior court judges except Cushing stood by the Crown. Rebellious Massachusetts colonists developed a new government, led by a revolutionary council, composed of the legislators who favored independence. This council reorganized the courts and named Cushing to the superior court of Massachusetts Bay. John Adams was named chief justice, but he was occupied in the Continental Congress. Cushing acted as chief justice at the first session of this new court in June 1776. He was elevated to the chief justice’s seat when Adams resigned in 1777 and served for twelve more years in this capacity. Cushing was also a member of the 1779 state constitutional convention.

Slavery. The Massachusetts constitution, adopted in 1780, contained a bill of rights that stated that “all men are born free and equal.” The constitution did not specifically mention slavery. In 1783 a white man was charged with assault when he tried to repossess an escaped slave. At the end of the trial, Cushing instructed the jury on the legal principles to be applied in deciding the charge. He said: “The right of Christians to hold Africans in perpetual servitude, and sell and treat them as we do our horses and cattle, that (it is true) has been heretofore countenanced by the Province Laws .... But whatever sentiments have formerly prevailed ... a different idea has taken place with the people of America, more favorable to the natural rights of mankind . . . . Our Constitution . . . declaring that all men are born free and equal . . . is totally repugnant to the idea of being born slaves.” This instruction effectively abolished slavery in Massachusetts.

After the War. Cushing was vice president of the state convention that ratified the United States Constitution in 1788, and he was the first associate justice named by George Washington to the U.S. Supreme Court in 1789, where he served for twenty-one years. He served as acting chief justice in 1793, in John Jay’s absence, and administered the oath of office to Washington. Cushing and his wife, Hannah Phillips, whom he married in 1774, had no children. Cushing died on 13 September 1810.

Source

David R. Warrington, “William Cushing,” in The Oxford Companion to the Supreme Court of the United States, edited by Kermit L. Hall (New York & Oxford: Oxford University Press, 1992), pp. 213-214.

CUSHING, WILLIAM

William Cushing was born March 1, 1732. He graduated from Harvard College in 1751, and received an honorary master of arts degree from Yale University in 1753 and an honorary doctor of laws degree from Harvard University in 1785.

After his admission to the bar in 1755, Cushing began his judicial career in Lincoln County, Massachusetts (now a part of Maine), as judge for the Probate Court of that county during 1760 and 1761. In 1772, he served as a justice for the Massachusetts Superior Court, followed by a term as chief justice of that court from 1777 to 1789.

"Where [states' rights have] been abridged, it was thought necessary for the greater, indispensable good of the whole."
—William Cushing

In 1779, Cushing was a member of the first Massachusetts Constitutional Convention. In 1788, he acted as vice president at the Massachusetts Convention, a convention that endorsed the U.S. Constitution.

Cushing returned to the bench in 1789 as associate justice of the U.S. Supreme Court, rendering decisions until 1810.

In addition to his legal and judicial career, Cushing was active in the establishment of the American Academy of Arts and Sciences and was a fellow of that institution from 1780 to 1810.

Cushing died September 13, 1810, in Scituate, Massachusetts.