USA > Massachusetts > Plymouth County > Scituate > The early planters of Scituate; a history of the town of Scituate, Massachusetts, from its establishment to the end of the revolutionary war > Part 21
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31
Records of the Superior Court of Judicature (Suffolk County) A. D. 1700-1714, page 100.
* Judge Sewall's feeling of Hostility toward Saffin at the time is shown by the following lines penned in his diary June 1703 when the General Assembly had ordered a trial in the Courts. The judge was known to have a special aversion to periwigs. He himself always appeared with his long hanging loosely down his back and surmounted by a close fitting, black, papal skull cap. "Superanunated Squier, wigg'd and powder's with pretence, Much beguiles the just Assembly by his lying Impudence. None being by, his bold attorneys push it on with might and main.
By which means poor simple Adam sinks to slavery again.
§ Massachusetts Archives Vol IX Page 153.
258
THE EARLY PLANTERS OF SCITUATE
General Assembly had favored him i but the Council pre- sided over by his enemy Gov. Dudley, negatived it. He was growing old and perhaps more irascible, and he quit. Deane says that he died at Bristol July 29, 1710. Gov- ernor Washburn in his Judicial History does likewise. Baylies in his Memoir of Plymouth Colony without men- tioning the place gives the date as of May twenty-ninth of the same year. Each is wrong. His executors in their account to the Probate Court # name the date of his death as July 28, 1710, and the place Boston. Judge Sewall, not to let him pass out of this life without notice, records in his diary "Satterday, July 29th. last night, John Saffin, esqu'r died. He expressed to Mr. Pemberton § an Assurance of his good estate 2 or 3 hours before his death."
In his will he remembers his Sciutate relatives-"Item. I give and bequeath unto my kinsman Joseph Garrett of Scituate two tenth parts of that one thousand acres of land granted to me in the Narrhagensett Country by the Com- mittee for the Mortgage land there; and to his Two Brethren (Garret's) each of them one tenth part of sd thousand acres."
* House Journal June 1, 1703. "Ordered-That the Petition- er have a Hearing before this Court on the 2nd Wednesday of the next session."
Suffolk Probate Records Number 3264.
Pastor of the (Old) South Church.
JUDGE WILLIAM CUSHING MEMORIAL AT GREENBUSH. From a photograph by Alden S. Cook.
259
BIOGRAPHICAL SKETCHES
THE CUSHINGS
The progenitors of the New England branch of this brilliant family were Matthew Cushing and his wife Nazreth (Pitcher). They came to Boston in August 1638 and later with their children, Daniel, Jeremiah, Matthew, Deborah and John settled in Hingham.
John, the youngest, was then a lad of nine years. He spent his boyhood and young manhood in that town. In 1656 he married Sarah, a daughter of Nicholas Hawkes and six years later came to Scituate. He was then thirty- five years old and of sufficient financial ability to purchase from the son of William Vassall, the farm at Belle House Neck which the latter had quitted, with more or less dis- appointment, ten years before, to go to Barbadoes. The first ten years of Cushing's residence in Scituate do not find him performing much public service. He served on the grand jury and was a receiver of excise. Seven of his eleven children, John, Thomas, Matthew, James, Joshua, Sarah and Caleb, were born during this time. In 1672 he was a selectman. This office he held many years. In 1673 and again in 1683 he was appointed to solemnize marriages and administer oaths, though not then of the magistracy. In 1676 he was made a deputy from Scituate to the Colony Court and in this capacity served his constit- uency continuously until 1685. In that year the colony having been divided into the three counties of Plymouth, Bristol and Barnstable, he was chosen an Associate for the former. In 1689 he was made an Assistant and was an- nually returned to that office until the amalgamation of the two colonies in 1692.
He was the founder of a family of statesmen, patriots, judges, teachers, lawyers and physicians, who in their re- spective generations have been prominent in widely settled communities especially in New England. His descendants have contributed to the best public thought and action of
260
THE EARLY PLANTERS OF SCITUATE
their times to a greater degree than probably any other Old Colony family, Standish, Alden, Winslow and Bradford not excepted.
His eldest son, bearing the same name, was born at Scituate in 1662, and at the age of forty was appointed Chief Justice of the Superior Court of Common Pleas for Plymouth County, a tribunal of limited civil jurisdiction, which sat once a year at Plymouth. In his day, and for many years thereafter, it was not deemed inconsistent, that the same individual should be at the same time, a judge of one of the courts and a member of the provincial council, a body commissioned to act with and advise the President (Governor), in matters of government. Judge Cushing was chosen to this body in 1710 and continued a member of it until 1728. He was then commissioned to be a judge of the Superior Court, the court of general jurisdiction in the province, and occupied a place upon this bench until 1733 when "his name was omitted in the commission which was then issued to other members of the court." For many years the Commonwealth of Massachusetts has per- petrated the libel in its Manuel for the General Court that Judge Cushing was removed. Although this publication has, in all probability, not injured the good repute which the venerable gentleman left behind him, in the interest of truth it should be written here that the occasion of his failure to be recommissioned was his advanced age-seven- ty-one-and not his removal. In these days we accomplish the same result with a pension. Governor Washburn says, speaking of Judge Cushing's attainments while a member of the Superior Court, "I do not find that he was educated beyond what was requisite for the duties of a highly re- spectable walk in private life, and of course he could not have held high rank for learning in comparison with some of his Associates upon the bench" . On the other hand, Reverend Josiah Cotton, his contemporary, says of him at
¡ Benjamin Lynde, the elder, Addington Davenport, Edmund Quincy and Paul Dudley.
261
THE CUSHINGS
this time "He was a gentleman well versed in law; the life and soul of our court while he continued in it, a man in the main, of justice and integrity" t.
He was twice married. From him descended James Savage, the antiquarian and historian. He deceased in 1737.
John Cushing, the third to bear that name, and son of Judge John above named, was born July 17, 1695, on the ancestral farm at Belle-House Neck. At the age of twenty- six he was a member of the provincial legislature from Scituate, and later Judge of Probate for the County of Plymouth. Like his father he was a judge of the Superior Court of Common Pleas, holding this office at the same time that he was a judge of the Probate Court. In ad- dition, he was a member of the Council and still in emulation of the example set by his father, occupied these two positions simultaneously. He was appointed to the Superior Court in 1747 by Governor Shirley and continued to sit upon this bench until his resignation in 1771.
The historian # of his son says of him that "He was bred to the bar; and with abilities, learning and genial manners, rapidly achieved the honors of his profession." His con- temporaries upon the Superior bench were the younger Benjamin Lynde, Stephen Sewall, Chambers Russell, Peter Oliver, Thomas Hutchinson (afterward colonial Governor for three years) and, for a portion of the time, Edmund Trowbridge. Most of these men incurred for themselves in the discharge of their judicial duties, the enmity of the revolutionary leaders and the provincial populace over the Stamp Act and the issuance of Writs of 'Assistance to the port collectors, for the seizure of uncustomed goods. Otis, Sam Adams and their followers were impatient at the atti- tude of the court. They were ready by whatever means, to break down any barrier that stood as an obstacle to their great object, and wont to ascribe disloyal and unworthy
New England Hist. and Gen. Reg. for Jaunary 1854 P. 42.
$ Flanders-Lives and Times of the Chief Justices Vol II P. 12.
262
THE EARLY PLANTERS OF SCITUATE
motives to those who disagreed with them. Thus John Adams, whose political virulency was always acid, wrote in his diary ten years later, when, on his way to attend court at Ipswich, he overtook Judge Cushing :-
"Overtook Judge Cushing, in his old curricle, and two lean horses, and Dick, his negro, at his right hand, driving the curricle. This is the way of travelling in 1771 :- a Judge of the Circuits, a Judge of the Supe- rior Court, a Judge of the King's Bench, Common Pleas and Exchequer for the Province, travels with a pair of wretched old jades of horses, in a wretched old dung cart of a curricle, and a negro, on the same seat with him, driving. But we shall have more glorious times anon, when the sterling salaries are ordered out of the revenue to the judges, &c., as many most ardent ly wish, and the judges themselves, among the rest, I suppose. f Stopped at Martin's, in Lynn, with Judge Cushing; oated, and drank a glass of wine, and heard him sigh and groan the sighs and groans of seventy- seven, though he kept active. He conversed in his usual, smiling, insinuating, scrupling strain." #
It was said that the judges through party bias, failed to pronounce impartial judgments. Especially was this criticism advanced in the matter of the issuance of the Writs of Assistance. Historians of the Revolutionary times have left nothing untold of the brilliancy of Otis and Thacher when this question was argued by them in 1761, before the Superior Court of which this third John Cushing was a member. Whatever may be said of Chief Justice Hutchin- son and the others, Judge Cushing, like his son William, was no Tory. He occupied a delicate position, however. As a judge of the highest court of the province he was sworn to uphold the law. Writs of Assistance, before 1761, had
¡ It had been suggested, that the judges appointed by the Crown would be less subject to its influence, if their salaries were paid out of the local revenue. The Legislature later crystalized this suggestion into law.
# John Adams' Works Vol II P. 279.
263
THE CUSHINGS
frequently been issued by it. They were authorized by the Statutes of 14 Charles 11, Chapter 2; and 7 George III Chapter 46. The Court of which he was a member had the same jurisdiction as that which the courts of "the Kings Bench, Common Pleas and Exchequer united," exercised in England. English laws, so far as was consistent with the state of the country, were made its guide" i. When Charles Paxton, Surveyor of the Port of Boston, applied to the Court for the Writ of Assistance, that tribunal, al- ready sensing the popular feeling, "desired the Opinion of the Bar, whether they had a Right and ought to grant it." #
James Otis, Jr., then Advocate General, resigned his commission to argue against the issuance of the writ. With him was Oxenbridge Thacher, astute, learned and resource- ful. Against these two were pitted the dean of the bar, Jeremy Gridley, and Robert Auchmuty, soon to take .the place resigned by Otis, and later to be made judge of the Admiralty.
Thacher opened the arguments against the writ. He contended that although the statute of Charles II provided for and authorized it, yet in the sixty years of the life of that statute up to the time of argument, it neither was ap- plied for or granted until 1756. Therefore that non user was a great presumption against it. He urged also that the Massachusetts Court had not in this particular the powers of the English Court of Exchequer, and that in the case of McNeal vs Brideoak previously decided by the provincial tribunal, it had expressly disclaimed the author- ity of the Exchequer. Josiah Quincy, Jr., the reporter, does not give Otis' argument in full. Enough is published however to show that it partook largely of an historical character. Replying to it Gridley said: (The writ) "is properly a Writ of Assistants, not Assistance : not to give the Officers a greater Power, but as a check upon them. For by this they cannot enter into any House without the
Washburn-Judicial History of Massachusetts Page 97.
1 Quincy,-Mass. Reg. Page 51.
264
THE EARLY PLANTERS OF SCITUATE
presence of the Sheriff or other civil officer, who will be always supposed to have an eye over and be a check upon them. Quoting History is not speaking like a Lawyer. If it is Law in England, it is Law here; it is extended to this Country by Act of Parliament. By Act of Parliament they are entitled to like Assistants; now how can they have like Assistants, if the Court cannot grant them it; and how can the Court grant them like Assistance if they cannot grant this writ. Pity it would be, they should have like Right, and not like Remedy. But the General Court has given this Court authority to grant it, and so has every other Planta- tion Court given their Superior Court." f These argu- ments occurred at the August term, and on December second the Court unanimously granted the writ. This action did not, of course, increase the popularity of the judges, al- though they had declared the law as they saw it.
On the other side of the water, Sir William Blackstone in the debate on the repeal of the Stamp Act, is said to have "declared Tory as he was, that Parliament had no right to impose internal taxes" but Coke, and Charles Pratt, Earl of Camden, later Lord Chief Justice, each asserting a different reason, disagreed with him." #
It must be undoubted that Judge Cushing, in agreeing to the issuance of the writ, did so purely because his reason- ing, or his regard for precedent led him in that direction. If the latter, he has since been well supported. Many an eminent jurist has shown an equal devotion to the doctrine of stare decisis.
When the time came however, for Judge Cushing to show his mettle, he was not slow in making the exhibition. The occasion arose in December 1765. At that time the Superior Court, in the several circuits, for the want of "stamp-papers" had done no business, "except opening the court, and continuing all matters to the next term, ever since the Stamp Act was to have taken place in the Colonies."
Quincy,-Mass. Rep. Page 57.
Ibidem Page 516.
265
THE CUSHINGS
In this situation the town of Boston, at a meeting on the eighteenth day of December, memorialized the Governor and Council to the effect that "The Courts of law within the Province, in which alone justice can be distributed among the people, so far as respects civil matters, are to all intents and purposes shut up; for which your memorialists apprehend no just and legal reason can be assigned." The memorial asked that directions be given to the several courts and their officers, that they might be opened to litigants. The Governor and Council called before them, the three leaders of the Suffolk bar, two of whom had five years previous appeared before the Superior Court and argued on opposite sides, on the question of issuing the writs of Assistance. On this occasion Otis and Gridley were joined by John Adams. All were in accord that the courts should be opened and business conducted in them. The Governor and his advisers trimmed however. They declared that the memorial raised a question of law; and that the tribu- nal to pass upon it was the court itself. This was reported to the town. After holding three meetings, it unanimously disapproved the action of the Council. It resolved that the courts ought to be open and instructed its representatives in the General Court to use their utmost endeavors to bring this about. The last of these meetings was held on the sixteenth day of January 1766, and the following March was the date for the regular sitting of the court. When the time arrived Hutchinson did not appear. It was charged that he purposely made the flimsy pretext of go- ing on a journey to explain his absence. ¡ Cushing, Lynde and Oliver attended. The latter timidly suggested that he was there under duress; that if forced to proceed in defiance of the Stamp Act, he would do so only as an act of self preservation, as he knew that he was in the hands of the populace and his judicial acts, if so performed under duress,
+ It was a few short months before (August 1765) that his house had been beset by a mob and property valued at £3000 destroyed. Quincy-Mass. Rep. Page 168.
266
THE EARLY PLANTERS OF SCITUATE
would be void. Cushing on the contrary, apparently tak- ing the ground which had been urged by Gridley, Otis and Adams the December previous, that the passage of the Stamp Act neither deprived his court of jurisdiction, nor excused him from exercising his judicial duties, announced himself as ready to proceed. Lynde followed him. Again Cushing pursued the dictates of duty as he saw it. Had he been of Tory leaning, he could have run away as did Hutchinson; or protested, with Oliver. His conduct was admirable. It was dignified and courageous. It merited and received the commendation of his critic John Adams, who gives this account of the first day of March term 1766 :-
"11 Tuesday. Went to Boston. The Chief Justice not there; a piece of political finesse to make the people believe he was under the necessity of going a journey this week, but would be here by the next, was put about, while care was taken to secure an agreement to an adjournment for three or four weeks; so that Hutchinson is to trim and shift and luff up and bear away; and elude all blame of the ministry and the people. Cushing spoke out boldly and said he was ready to go on; he had no difficulty about going on."
Judge Cushing sat in the trial of Capt. Preston who was indicted for the murder of Crispus Attucks and others, in the "Boston Massacre." The trial took place in October. It was the last important case in which he sat. John Adams and Josiah Quincy, Jr., each, moved by a fine spirit and a desire that the accused captain should have his full rights accorded him, appeared in his defense. Before agreeing to the employment Quincy sought the advice of Judge Cushing, John Hancock and Joseph Warren. Each counselled him to undertake it. This action of the young patriot barrister in resorting to Judge Cushing for counsel, speaks decisive- ly for the high place which the latter held in the hearts of the leaders of public opinion, in the hour of his retirement.
267
THE CUSHINGS
He resigned the next year, came back to his farm in Scituate, and died in 1786.
His son William immediately succeeded him upon the Superior Court of Judicature. He was for a time as much the object of distrust, so fickle is the public mind, as his father had been in the days of writs of Assistance and the Stamp Act.
William Cushing was born at Scituate, March 1, 1732. He was prepared for college by Mr. Richard Fitzgerald the Latin School Master in Scituate and graduated from Har- vard at the age of nineteen. This does not denote any precocity upon his part. They matriculated younger at Cambride in 1751, than they do to-day. Having received his degree he taught a grammar school at Roxbury for a year and then entered upon the study of the law in the office of Jeremy Gridley, Esqr., in Boston. Flanders says that he remained in Mr. Gridley's office until he was "called to the bar, in 1755." This is an error. Under the then rule of the Superior Court of Judicature for the Province, the lawyer must practice for three years in the inferior courts # before being "called by the Court to be a Barrister at Law." This did not take place until the August term 1762. § The same rule required that the judges and lawyers be clothed in robes. While sitting in the trial of civil and ordinary criminal cases, the gowns worn by the judges were of black silk with white bands; when capital cases were on, the robe was of scarlet with black velvet collar, cuffs and facings. T The head of the judge was covered with the large judicial peruke, while the barristers wore a tie-wig. Cushing at the time of his admission did not appear clad in this apparel. When later, he was a judge of the same court which promulgated this requirement, he
+ Flanders-Lives and Times of the Chief Justices Page 16.
1 John Adams' Works II Page 133.
§ Quincy, Massachusetts Reports, page 35.
T Memoirs of Increase Sumner. Genealogical Register for
Apr. 1854, page 116.
268
THE EARLY PLANTERS OF SCITUATE
became strongly addicted to the wig wearing habit. This story is told of him, that :-
"making his appearance in the streets of New York whence he had gone for the purpose of being present at the first term of the Supreme Court of the United States held there in February 1790, his head was cov- ered with the large English wig which he had worn in Massachusetts. He noticed that he was attracting considerable attention and being a modest man, rather marvelled at it. He was at a loss how to account for it, until, turning a corner he came abrutply upon a sail- or, who, surprised into astonished expression, exclaimed "My eyes ! what a wig !" Cushing was now let into the secret, and returning to his lodgings, sent for a peruke- maker, and obtained a more fashionable covering for his head." f
Admitted to the bar, William Cushing began the practise of his profession in Scituate but soon removed to Pownal- borough (now Dresden) in Maine. His father owned lands in that region, and this, it is supposed, was the cause of his going there." # In 1760, the new county of Lincoln having been created, and Maine then being territorially a part of the province of Massachusetts, Sir Francis Bernard the Royal Governor made him Judge of Probate for that county. He was back in Boston, however, in two years to be called as a barrister to the bar of the Superior Court as already told. §
At the close of the year 1771 "Lynde, Chief Justice (of
Address of J. D. Hopkins, Esquire, before the Cumberland County (Maine) Bar Association, 1833.
1 Flanders Lives and Times of the Chief Justices page 16.
§ Cushing says that Cushing remained Judge of Probate for Lincoln County for twelve years. If this is correct it occasions the inquiry, as to why he should have been admitted as a bar- rister in Boston in 1762. The statement seems to be supported however, by the fact that his name does not once appear as counsel in any of the cases argued in the Superior Court and reported by Quincy, although those of his contemporaries, Otis, Adams, Dana, Fitch, Sewall, Paine and Samuel Quincy are mentioned with repeated frequency.
269
THE CUSHINGS
the Superior Court) and Cushing Justice, resigned and the Honourable Peter Oliver, Esq., was made Chief Justice, and the Honourable Nath'l Ropes and William Cushing Esquire, were made Justices and all took their seats accord- ingly in Suffolk February Term 1772." t When this occurrence took place the public mind was much inflamed. In the same court to which this new blood was thus added, only the year before, Captain Prescott and six of his com- pany who were engaged in the Boston massacre, had been acquitted; and the two who had been convicted of man- slaughter for the death of Attucks had been ordered to be punished merely by branding the palms of their hands. Whatever may have been the righteousness of either verdict or punishment, the court, which imposed the latter, was not in favor with the commonalty.
Cushing had been less than six months upon the bench before the question respecting the payment of the judges' salaries arose. On August seventh 1772 the ministry pro- vided that they should be paid by the Crown. The Legis- lature, when it met the following January, equally determined, ordered an appropriation out of the provincial revenue for the purpose. Governor Hutchinson, in whose time as Chief Justice of the Superior Court, the same question had been exploited, withheld his assent and John Adams thereupon proposed the impeachment of those who should refuse to accept the salaries provided by the Assem- bly. The state of affairs cannot be better described than in his own words, written later :--
"At this period the universal cry among the friends of their country was, what shall we do to be saved? It was by all agreed, as the Governor was entirely depend- ent upon the Crown, and the Council in danger of becoming so, if the judges were to be made so too, the liberties of the country would be totally lost, and every man at the mercy of a few slaves of the Governor, but no man presumed to say what ought to be done,
+ Quincy, Massachusetts Reports page 330.
270
THE EARLY PLANTERS OF SCITUATE
and what could be done. Intimations were frequently given, that this arrangement should not be submitted to. I understood very well what was meant and I fully expected that if no expedient could be suggested, the judges would be obliged to go where secretary Oliver had gone, to the Liberty Tree, and compelled to . take an oath to renounce royal salaries. Some of these judges are men of resolution; and the Chief Justice in particular, piqued himself so much upon it, and had so often gloried in it on the bench, that I shuddered at the expectation that the mob might put on him a coat of tar and feathers, if not put him to death. I had a real respect for the judges; three of them, Trowbridge, Cushing and Brown, I could call my friends. Oliver and Ropes, abstracted from the politics, were amiable men, and all of them were very respectable and virtuous characters."
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.