Unlikely Abolitionist: William Cushing and the Struggle Against Slavery HARRY DOWNS* Introduction One of the striking differences between the federal Union established under the Constitution and the Confederation of States established under the Articles of Confederation is the creation under Article III of a judicial power of the United States and of a Supreme Court to exercise that power. Acting pursuant to its power to determine the structure of that Court, Congress determined that the Court should consist of one ChiefJustice and five Associate Justices. The six lawyers President Washington named to the Court1 were leading members of the bar, yet none achieved lasting distinction by reason of his service on the Court. Chief Justice Jay, for example, is best remembered for the treaty with England which bears his name; and when he resigned in 1795 following his election as Governor of New York, local papers referred to his new office as “a promotion.”2 William Cushing served far and away the longest of these original six: he persevered in his duties until his death in September 1810. Yet despite his having spent a half-century on the provincial, state, and federal benches, he is little known nor long remembered. Cushing was bom in Scituate, Massachusetts on March 1, 1732, the son of John and Mary Cotton Cushing. His family sometimes has been called the family ofjudges: both his father and his grandfather (also named John) were justices of the Royal Superior Court ofJudicature, the highest court in the Massachusetts Bay Colony. His family also held slaves. The very week William was born his father John paid Mary Thaxter £90 “for my Negro woman servant or slave named Phillis, to have and to hold ye sd negro woman servant or slave to him ye sd John Cushing his heirs executors and assigns forever.”3 When William was thirteen, his fa ther purchased from Ruth Randall on May 26, 124 JOURNAL OF SUPREME COURT HISTORY Associate Justice William Cushing (above) was born into a family of judges: both his father and grandfa ther had been justices of the Royal Superior Court of Judicature, the highest Court in the Massachusetts Bay Colony. Cushing’s family owned slaves, but it is unclear whether his own personal servant, Prince Warden, was a slave or servant. 1745, “my negro man named Jonathan... to hold as a Servant for Life” for £120.4 In later years, Cushing himselfretained a personal ser vant, Prince Warden, whose status—servant or slave—was not entirely clear. Cushing graduated from Harvard College shortly after his nineteenth birthday.5 He spent a year as preceptor of the Roxbury Grammar School, read law in the office of Boston attor ney Jeremy Gridley, and was admitted to the bar in February 1755. He immediately opened an office in Plymouth and for the next five years practicedbefore the provincial courts. He then moved his practice to the frontier town of Pownalborough (now Dresden) in the district of Maine, where, on October 1, 1760, King George II issued him his first judicial com mission: judge of probate of Lincoln County. The following year, he was reappointed pro batejudge and also made ajustice ofthe peace, and in 1762 he was called to the degree of barrister.6 Cushing did not marry until 1774, when he was forty-two years old. Hannah Phillips Cushing (above) regularly accompanied him on circuit to ease his loneliness. Cushing was now past thirty years of age and an established member of the bar. He re turned from Pownalborough to Scituate, pur chased in fee simple the number one pew in Scituate’s New Meeting House, and married Hannah Phillips of Middletown, Connecticut. He never again lived on the frontier, though as ajustice on circuit he frequently visited various frontier courts. In 1772 Governor Thomas Hutchinson ap pointed Cushing to succeed his father as ajus tice of the Superior Court of Judicature. The timing of the appointment propelled Cushing into the vortex ofthe controversy overpayment ofjudicial salaries. The Townsend Act of 1767 had shifted payment of provincial governors’ salaries from province to Crown, to protect them against risk of retaliation by the provin cial assemblies. This had caused great discon tent in...
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May 1, 2005
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