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 22
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Under the threat of impeachment, and perhaps fearing the more debasing, not to say possibly fatal action by the mob, suggested in the fear of Adams, Judge Trowbridge at the opening of the January session of the court in 1774, announced his intention of receiving his salary in the man- ner laid down by the Assembly. Cushing did not act with haste. By some this was ascribed to timidity; by others, to royal leanings; and there are also those who claim that his inaction was due to a desire to please both factions. Neither of these critics are probably correct, and all are un- fair. Judge Cushing is described by those who knew him well as a man of great "caution and reserve;" of "unshak- en integrity and deliberate judgment" and whose "excellence consisted in his cool, logical and lucid argumentation, which convinced if it did not move his hearers." #
+ John Adams' Works Vol II Pages 328-330.
The quoted opinions are ga thered from three different
writers: Washburn's Judicial History, page 316.
Flander's
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He took his time to deliberate upon the question and finally acquiesced in the proposal of the Legislature, taking Judges Ropes and Foster Hutchinson, a brother of the Governor, with him. This left Chief Justice Peter Oliver to stand alone the threatened impeachment which never eventuated.
Subsequent events demonstrated that Judge Cushing's course during these trying occurrences met with the popular approval. When the court was reorganized by the Provin- cial Congress in November 1775, and John Adams was made Chief Justice, Cushing was the only one of the judges com- missioned by the Crown, whose services were retained upon the new tribunal. Adams did not sit; and upon his resigna- tion in 1776, Judge Cushing was appointed Chief Justice. This position he not only accepted, but in doing so, showed a moral courage, the possession of which had been openly doubted. Had the cause of liberty been unsuccessful, he would have been in the same class for punishment with those who had incited rebellious opposition to the mother country, and had taken up arms against the exercise of her authority. Usurpation of the judicial function was a most serious undertaking, and had the Revolution been crushed he would have been severely dealt with.
Lives of the Chief Justices page 19 and Warren's American Revolution Vol I page 117. Perhaps the last embodies in effect the feeling of all :- "Two of the judges, Trowbridge and Ropes, readily complied with the demand and relinquished the offensive stipend. A third was William Cushing, Esq. a gentleman ren- dered respectable in the eyes of all parties by his professional abilities and general integrity. He was a sensible, modest man, well acquainted with law, but remarkable for the secrecy of his opinions. This kept up his reputation through all the ebullitions of discordant parties. He readily resigned the royal stipend, without any observations of his own; yet it was thought at the time that it was with a reluctance that his taciturnity could not conceal. By this silent address he retained the confidence of the Court faction, nor was he less a favorite among the Republicans".
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Should further doubt remain as to his devotion to the cause of freedom, one has but to read his draft of the in- structions t of the town to its representatives offered at a town meeting held in Scituate on the fourth day of June 1776. The man who in that resolution charged Great Britain with "being determined to exercise their (its) bar- barities upon us, and, to all appearances, to extirpate, if practable, the Americans from the face of the earth, unless they will tamely resign the rights of humanity, and to re- people this once happy country with the ready sons of vas- salage," could not, a short three years before, have seriously considered becoming such a vassal himself by the acceptance of a salary from that government, when the propriety of such action was called in question. Happily his place upon this bench was saved to him and his services to the people preserved by the result of the Revolution.
Of his work during this time, little has become a matter of record, except unimportant memoranda or judgments found among the papers, in the clerk's offices.
One charge to a Worcester County jury involving his views upon slavery, is vouched for by Flanders.
"At the April term of the Superior Court, held at Worcester, in 1783, Nathaniel Jennison + was tried for assault and battery on one Quorks .(or Quork Walker). 'The justification is' said the Chief Justice, 'that Quorks is his slave; and to prove it, it is said that Quorks, when a child about nine months old, with his father and mother, was sold, by bill of sale, in 1754, about twenty- nine years ago, to Mr. Caldwell now deceased; that
1 Ante page. 239.
Governor Washburn in a paper read before the Massachu- setts Historical Society, (Fourth Series Vol IV. Pages 333 et seq.) on the "Extinction of Slavery in Massachusetts" maintained not only, that Judge Cushing did not charge the jury in the Jennison case, but that he did not sit at all.
This statement will create a mild surprise when the occasion, the auditors before whom it was made, and the person promul- gating it, are taken into account. The facts are obtained through the medium of the docket of the Supreme Judicial Court for the
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when he died Quorks was appraised as a part of his personal estate, and set off to the widow in her share of the same; that Dr. Jennison, marrying her, was entitled to Quorks as his property; and, therefore, that he had a right to bring him home when he ran away, and that the defendant took only proper measure for that pur- pose. And the defendant's counsel also rely on some former laws of the Province, which give countenance
County of Worcester. This docket, together with those from the various counties of the Commonwealth and the province of Maine, were after great diligence, gathered together by John Noble, Esquire, for many years clerk of the same court for the County of Suffolk and deposited in the archives of this court at Boston. They contradict Governor Washburn flatly, though, of course, they do not disclose that Judge Cushing charged the jury. This copy of the entry is from the criminal docket for the year 1783 :-
Before
WILLIAM CUSHING, Esq., Chief Justice. NATHANIEL PEASLEE, Sargent DAVID SEWALL INCREASE SUMNER
Esquires Justices.
"No. 8 Commonwealth vs Nathaniel Jennison.
Upon an indictment for assault. This indictment was found September Term A. D. 1781 and now in this present Term, the said Nathaniel Jennison comes into Court & has this indictment read to him, he says that thereof he is not guilty & thereof for Trial puts &c. a Jury thereupon is impannelled & sworn to Try the issue viz., Jonas How, Foreman & fellows namely, Wm. Mc- Farland, Isaac Choate, Joseph Bigelow, John White, Daniel Bul- lard, Ebenezer Lovell, Phillip Goodridge, John Lyon, Jona Wood- bury, Thomas White and John Town, who after hearing all mat- ters and things concerning the same, return their verdict, and upon their oath do say, that the said Nathaniel Jennison is guilty: It is therefore considered by the Court that the said Nathaniel Jennison pay a fine of Forty shillings, pay costs & stand committed "till sentence be performed, costs taxed at £." The reason for the failure to carry out the taxation of costs is probably found in the fact that Jennison had brought proceedings in the Inferior Court of Common Pleas for the County of Worcester through which in the civil side he sought to get the custody and possession of Quork Walker as his chattel. The decision was against Jennison. He appealed to the Supreme Judicial Court, but failed to file there- in "attested copies of the writ judgment or evidence filed in the Superior Court as the law directs" and was defaulted. There- upon Walker sought and obtained affirmation of this judgment and collected damages and costs in the sum of "£50 gold or silver, or bills of public credit of the new emission equivalent to 17/8 for one silver dollar" and "costs taxed at £I:10:07"
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to slavery. As to the doctrine of slavery and 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 nowhere is it expressly enacted or established. It has been a usage; a usage which took its origin from the practice of some of the Euro- pean nations, and the regulation of the British government respecting the then colonies for the bene- fit of trade and wealth. But whatever sentiments have formerly prevailed in this particular, or slid in upon us by the example of others, a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that innate desire of liberty, with which Heaven, without regard to color, complexion, or shape of feature has inspired all the human race. And upon this ground, our Constitution of Government, by which the people of this Common- wealth have solemnly bound themselves, sets out with declaring that all men are born free and equal, and that every subject is entitled to liberty and to have it guarded by the laws, as well as life and property; and, in short, is totally repugnant to the idea of being born slaves. This being the case, I think the idea of slav- ery is inconsistent with our own conduct and Consti- tution, and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct, or given up by personal consent or contract." After this charge Dr. Jennison was found guilty.
Twice during his term of service on this bench Cushing was importuned to become a candidate for Governor. When Governor Hancock declined a re-election in 1785, both parties wanted to nominate him. Each time he de- clined, saying, "but many weighty reasons prompted me to decline the too high and arduous task." He did however, accept from his Scituate neighbors in 1787, an election to
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the Massachusetts Convention which met in January of the following year, for the adoption of the Federal Constitution.
He was chosen Vice-President of that body and, because of the ill health of John Hancock, the President, he presided during a greater part of the session, over its debates and proceedings. While as presiding officer, Judge Cushing could not largely participate in the serious discussions which marked the sessions of the convention, his tact was at all times apparent. It was due doubtless, in some measure, to the high esteem in which he was held, and the known fact of his own approval of it, that the Constitution was finally ratified. Out of a total membership in this convention of three hundred and sixty, it obtained a majority of only nineteen votes.
After it became operative, upon its ratification and adoption by Massachusetts, Maryland, South Carolina, New Hampshire and Virginia, all of which followed their sister states in this final act of devotion to the federal cause, Judge Cushing again consented to run for elective office. He was chosen an Elector of President and Vice-President and helped to cast the ten votes of his Commonwealth for George Washington of Virginia and John Adams of Massachusetts to those offices.
When that great constitutional tribunal -the Supreme Court of the United States ---- was organized, Judge Cushing was called upon by Washington to bring his learning, sagac- ity and well equipped judicial mind to its membership. The President later on, after the resignation of John Jay, deter- mined upon the appointment of Cushing to be Chief Justice, apparently without consulting the person upon whom the great honor was to be bestowed. It is told that Cushing first heard of it at a dinner party given by the President, when he was accosted as Chief Justice and told by Wash- ington to take the place at table at his right hand. Although unanimously confirmed to the position, he declined it, plead- ing that his health would not permit it. He presided however, during the absence of Chief Justice Jay upon
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his diplomatic mission to the Court of St. James, negotiat- ing the first treaty with the defeated mother country.
Judge Cushing's health at this period of his life was poor. We have his own statement for that fact. The reports of the activities of his court from 1789 to 1810 when death removed him, show that he took his full part, however, in the transaction of its business. This was no easy task. While there was in the beginning, comparatively little to occupy the attention of the judges upon the appellate side of the court, under the Judiciary Act they sat in the Circuit Courts from Massachusetts to Georgia. In his travel over this big circuit Judge Cushing was invariably accompanied by his wife, a woman twenty-two years his junior, highly accomplished, much devoted to, and very proud of her husband. They travelled in what has been described, both as coach and phaeton, drawn by a pair of horses driven by the judge himself. A collateral relative, Charles Cushing Paine, Esq., in an unpublished sketch of Judge Cushing says that the conveyance which ever it may have been, "was remarkable for its many ingenious arrangements (all of his contrivance) for carrying books, choice groceries, and other comforts. Mrs. Cushing always accompanied him, and gen- erally read aloud, while riding. His faithful servant, Prince, a jet black Negro, whose parents had been slaves in the family, and who loved his master with unbounded affec- tion, followed behind, in a one horse vehicle with the bag- gage."
While thus riding the circuit, the cases which he decided were infrequently of more than local importance. The most noteworthy was that of McDonough vs. Dannery and the ship Mary Ford. f In the war between England and France which followed the former's disastrous conflict with her colonies in America, a French privateer had captur- ed the English ship Mary Ford. After taking her, her captors abandoned her, through stress of weather, and she was salvaged by Americans, who claimed thereby to become
1 3 Dallas, Page 188.
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the true owners. Judge Cushing denied them this title. He held that a ship of a belligerent nation, taken by an enemy ship as a prize of war, and afterward abandoned, was still the property of the original owners; that after payment of salvage from the proceeds of the sale of ship and cargo, the balance of the avails of the sale belonged to these owners. The case was taken to the full court of which Judge Cush- ing was a member. There he was sustained.
Judge Cushing's greatest decision was given in the case of Chisholm, Exor. vs. Georgia f, a case thus early involv- ing states' rights. The plaintiff, a resident of South Caro- lina, instituted an action against the State of Georgia. The state did not appear, refusing thus to recognize the jurisdic- tion of a federal court over it as a sovereign commonwealth; but Ingersoll and Dallas, two leading members of the bar of the Supreme Court, "presented a written remonstrance and protestation on behalf of the state, against the exercise of jurisdiction in the cause." Edmund Randolph, then At- torney General, had moved that the state be defaulted for its non-appearance. Addressing the Court upon this mo- tion he said :---
"I do not want the remonstrance of Georgia to satisfy me that the motion which I have made is un- popular. Before that remonstrance was read, I had learned from the acts of another state, whose will must always be dear to me, that she too, condemned it. On ordinary occasions, these dignified opinions might in- fluence me greatly; but on this, which brings into question a constitutional right, supported by my own conviction, to surrender it, would in me, be official perfidy."
Thus, is partly shown the public interest in, and intense feeling which surrounded the case. The Court itself was divided. Judge Iredell led those of the judges who argued for state sovereignty. Chief Justice Jay and Judge Cush- ing, led those against it. It devolved upon Cushing to
+ 2 Dallas Page 419.
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write the opinion. Speaking for a majority of the Court. he held :
"The grand and principal question in this case is, whether a state can, by the Federal Constitution be sued by an individual citizen of another state. x x x x As controversies between state and state and between a state and citizens of another state, might tend gradually to involve states in war and bloodshed, a disinterested civil tribunal was intended to be instituted to decide such controversies, and preserve peace and friendship. Further : if a state is entitled to justice in the Federal Court against a citizen of another state, why not such citizen against the state, when the same language equally comprehends both? The rights of individuals and justice due to them, are as dear and precious as those of states. Indeed, the latter are founded upon the former; and the great end and object of them must be to secure and support the rights of individuals, or else vain is Government. But still, it may be insisted, that this will reduce states to mere corporations and take away all sovereignty. As to corporations all states whatever are corporations or bodies politic. The only question is what are their powers? As to indi- vidual states and the United States, the Constitution marks the boundaries of powers. Whatever power is deposited with the Union by the people for their own necessary security, is so far a curtailing of the power and prerogatives of states. This is, as it were, a self- evident proposition; at least, it cannot be contested. Thus the power of declaring war, making peace, rais- ing and supporting armies for public defence, levying duties, excises and taxes, if necessary, with many other powers are lodged in Congress; and are a most essen- tial abridgment of state sovereignty. Again, the restrictions upon states "No state shall enter into any treaty, alliance, or confederations, coin money, emit bills of credit, make anything but gold and silver a
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tender in payment of debts, or pass any law impairing the obligation of contracts;" these, with a number of others, are important restrictions of the power of states, and were thought necessary to maintain the Union; and to establish some fundamental, uniform principles of public justice, throughout the whole Union. So that, I think no argument of force can be taken from the sovereignty of states. Where it has been abridged, it was thought necessary for the greater, indispensable good of the whole. If the Constitution is found in- convenient in practice in this or any other particular, it is well that a regular mode is pointed out for amend- ment. But, while it remains, all officers, Legislative, Executive and Judicial, both of the State and the Union, are bound by oath to support it."
Nothing less could have been expected of a descendant from two other judges who had adhered closely to the voice of judicial conscience when its promptings dictated a course adverse to the popular will. The general feeling was against the opinion. It is certain that it was responsible . for Article XI of the Amendments of and in addition to the Constitution of the United States, proposed in the same year that the opinion was handed down (1793); and adopted on January 8, 1798. 1
One other case, # of equal importance at the time, pre- sents the opportunity for observation of the courageous bearing, profound learning, keen logic, force and clearness of expression possessed by this most distinguished son of Scituate.
During the war (in 1777) the Assembly of Virginia pass- ed an act sequestering all British debts within her limits. The treaty negotiated by Jay in 1783, provided that credi-
+ "Article XI. The judicial power of the United States shall not be construed to extend to any suit in law or equity com- menced or prosecuted against one of the United States by citi- zens of another state, or by citizens or subjects of any foreign state".
Ware vs Hylton, 3 Dallas at page 281.
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tors on either side should meet with no lawful impediment to the recovery of all bona fide debts theretofore contracted. Judge Cushing held, and in this he was again supported by a majority of the Court, that the treaty revived the debts in favor of creditors, and removed the bar to recov- ery which the act of the Virginia Assembly had interposed. His opinion, in part, follows :-
"I shall not question the right of a state to confiscate debts. Here is an act of the Assembly of Virginia, passed in 1777, respecting debts which, contemplating to prevent the enemy deriving strength by the receipt of them during the war, provides that if any British debtor will pay his debt into the Loan Office, obtain a certificate and receipt as directed, he shall be discharged from so much of the debt. But an intent is expressed in the act not to confiscate, unless Great Britain should set the example. This act, it is said, works a discharge and a bar to the payer. If such payment is to be con- sidered as a discharge or a bar, so long as the act had force, the question occurs,-Was there a power, by the treaty, supposing it contained proper words, entirely to remove this law and this bar, out of the creditor's way?
This power seems not to have been contended against, by the Defendant's counsel. And indeed, it cannot be denied; the treaty having been sanctioned in all its parts, by the Constitution of the United States, is, as the supreme law of the land. Then arises the great question, upon the import of the fourth article of the treaty. And to me the plain, obvious meaning of it goes to nullify, ab initio, all laws, or the impediments of any law, as far as they might have been designed to impair or impede the creditor's rights or remedy against his original debtor x x
X X What has some force to confirm this construction, is the sense of all Europe, that such debts could not be touched by States, without a breach of public faith. And for that, and
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other reasons, no doubt, this provision was insisted upon in full latitude, by the British negotiators. If the sense of the article be, as stated, it obviates, at once, all the ingenious metaphysical reasoning and refinement upon the words, debt, discharge, extinguish- ment, and affords an answer to the decision made in the time of the interregnum -- that payment to seques- tors, was payment to the creditor.
A State may make what rules it pleases; and those rules must necessarily have place within itself. But here is a treaty, the supreme law, which overrules all state laws, upon the subject, to all intents and purposes; and that makes the difference."
During the argument of this case at the bar, many objections were made to this construction of the law and the treaty by Judge Cushing. He answered them all however, spoke for the Court in writing the opinion, and was sus- tained by a majority of his brethren.
During his service upon the Supreme bench Cushing was the close friend of Washington. They were much in each other's company; sat for their portraits to the same artist; hunted and fished the woods and streams of Virginia together, and were altogether intimate and cordial.
William Cushing had no children. He always retained in his possession while he lived, the family acres at Walnut Tree Hill, Scituate. Here was his home, though infrequent- ly visited by him in the last twenty years of his life. Rev. Dr. Kendall, his friend, says of it, "his mansion was a place of resort not only by his fellow townsmen but also by cit- izens of the neighboring cities." His contemporary Josiah Quincy sums up his character thus :
"His virtues were of the pilgrim cast; pure in morals and inflexible in principle. x x x x The friend of such men as John Adams, Francis Dana, and Oliver Ellsworth, all of whom entertained for him the high- est respect, could not be otherwise than of an elevated cast of intellect and moral power."
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He died in 1810. He was buried in the family burial ground, overlooking the new mouth of the North River, where a modest shaft of granite over his grave, points to the heavens-the source of his inspiration-and through and far beyond the heavens, to the source of all truth.
Another son of John Cushing, the third of that name, was Elijah, who lived in Pembroke and was a judge of the Court of Common Pleas for Plymouth County. He had all of the shy and retiring traits of his brother William but none of the latter's great abilities.
The second son of the original John Cushing of Scituate was Thomas, born in 1663, an ensign of the Ancient and Honourable Artillery Company and a member of the Pro- vincial Council. He settled in Boston and was the sire and grandsire of those two other Thomas Cushings who as legislators, presiding officers and patriots, continued to up- hold the family name and make history during the progress of those events in which their relatives were bearing so prominent a judicial part. Caleb, another son of the first John, born at Scituate in 1672, graduated from Harvard twenty years later and was settled in the ministry at Salis- bury. His son Caleb, though born to the cloth, adopted the judicial wig and gown, became a judge of the Common Pleas Court for Essex County and after its reorganization, its Chief Justice. In a more obscure but none the less sincere way than his cousins, he lent his aid as a judge, patriot and member of the first Provincial Congress, to the cause of American liberty.
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