REMEMBERING A COURAGEOUS JURIST
WHO RULED AGAINST THE INSTITUTION OF SLAVERY

NOVEMBER 1, 1998
R.M. FEWKES

A few weeks ago I had the privilege of offering the Invocation at a special ceremony for the restoration of a historic burial site honoring the work and person of William Cushing, former Chief Justice of the Massachusetts Superior Court and Associate Justice of the U.S. Supreme Court. The burial site is off of Neal Gate Street in Scituate. A stone monument marks the spot where he was buried and a sign there quotes his famous decision outlawing slavery in the Commonwealth of Massachusetts in April 1783. The site had become overgrown and barely accessible to the public. A young boy scout, working on his Eagle badge, took on the project of clearing the land and installing new signs so that the public could learn something about this famous jurist and make their way to the little cemetery and stone monument where he lies at rest. He did a fine job. There were representatives from the Scituate and Norwell Board of Selectmen, Scoutmasters, and of course, quite a number of boy scouts who came to honor one of their troop members.

I prefaced my prayer by noting that Chief Justice Cushing had been a member of our parish along with his wife Hannah and that once a year during All Souls Sunday we pass a silver communion chalice, given to the church by Mrs. Cushing, as a way of remembering her and her husband, and the names of our beloved dead. In my prayer I said:

"Gracious Spirit of Life and of History, we are thankful this day for the example of your servant and lover of the law, William Cushing, who had the courage, wisdom and insight to tell the people of Massachusetts that slavery and discrimination were against the moral law of God and the constitutional law of our state and nation. One man made a difference and changed the moral thinking and actions of thousands of his fellow citizens. May we take courage from his example and strive to live our lives as worthily as did our great jurist and Chief Justice of the Massachusetts Supreme Court, William Cushing. We remember his accomplishment with pride and pray that this monument in his memory will elevate the moral and spiritual aspirations of future generations towards the higher good of all. He would have it so, and so let it be. Amen."

William Cushing was born on the first of March 1732 in the Town of Scituate. He lived on a family estate that had been purchased from the heirs of William Vassall, lay leader and founder of the Second Parish in Scituate, now the First Parish in Norwell. So many judges before and since have borne the Cushing name that it has been called the "Family of Judges." Both his father and grandfather were judges in the pre-revolutionary Provincial Courts, and his father, John Cushing, Jr., was a judge in the Mass. Superior Court, who was succeeded by his son William upon his retirement in 1772.

Prior to his new appointment William had spent 12 years as a probate judge in Lincoln County, Pownalborough, Maine. Shortly after his return to Scituate he married 20 year old Hannah Phillips. He was more than 20 years older than his young bride. Over the years Hannah accompanied her husband on his judicial circuits. They were on the road most of the time and consequently spent only a few months of the year in their Scituate home. The fact that they had no children enabled her to journey with him from place to place. In January 1792 Hannah wrote to a friend: "The time draws nigh for us to quit home, and not return until May. We are traveling machines, and no abiding in every sense of the word."

In 1776 there was a serious outbreak of Small Pox in the colony. Doctors were urging the populace to submit to inoculations. There was a lot of fear and panic about the dangers of inoculation. Judge and Madam Cushing set an example by submitting to vaccination and helped allay the anxiety associated with it.

Judge Cushing was appointed to the Massachusetts Superior Court under the Crown just before the outbreak of the Revolution. He was the only member of the King's bench who publicly supported independence and was the only justice of the Provincial Court to be retained after the courts were reorganized. The period between the beginning of the Revolution and the establishment of a new Federal Government was a time of peril and personal danger for those in the judicial establishment. Judges would arrive at the court houses and find them surrounded by armed and angry dissidents. On one occasion Chief Justice Cushing was met by a committee from a mob and asked not to proceed to the court house. Justice Cushing replied that "the law had appointed the court to be held at that time and it was their duty to hold it accordingly." Followed by his Associates, he proceeded into the street towards the court house. In the words of his grand nephew:

"His countenance was blanched to paleness, but his step was firm. As he advanced, the crowd opened before him, but slowly and sullenly; muskets rattled, and some bayonets rapped upon his breast; quietly and firmly, however, he moved on, reached the court house, and the court was regularly opened. The respect and affection universally borne towards him contributed, without doubt, in no slight degree, to preserve the public support to the courts, and maintained their authority in this crisis."

The incident that led to the far reaching judicial opinion which abolished slavery in the Commonwealth of Massachusetts had to do with a Negro, named Quaco, or Quork Walker, who had been born into slavery. He had been promised his freedom at age 21 by Mrs. Caldwell, the wife of his first master. She was widowed, then remarried, and died before he came of age. When he turned 21 he ran away from his new owner, but was overtaken, beaten and imprisoned for a brief period. The brother of his first master, John Caldwell, came to his aid, and helped put his case before the court. Quaco won a lower court ruling and was awarded L50. But the case was appealed and came before the Massachusetts Supreme Court.

Chief Justice Cushing expressed the opinion that since the Constitution of the state of Massachusetts, which was adopted in 1780, had omitted the words which disfranchised "Negroes, Indians, and Mulattos," and gave the right of suffrage to "every male person being twenty-one years of age", that there was no basis for keeping Quaco in perpetual slavery, and furthermore, the very notion of "perpetual servitude of a rational creature" was itself totally repugnant to the natural right and desire granted by Heaven to all human beings for Liberty. Massachusetts thus became the first of the states in the new found Union to abolish slavery.

I am reminded of the lines from James Russell Lowell's great poem: "When a deed is done for freedom, through the broad earth's aching breast/ Runs a thrill of joy prophetic, trembling on from east to west." Judge Cushing's prominent role in this judicial decision did indeed set in motion a prophetic movement from east to west, and north to south, that led to the eventual abolishment of the institution of slavery in every state of the Union. "In the gain or loss of one race all the rest have equal claim." And it began here by one of our own church members who had the courage to say in the words of the law, both secular and moral, that slavery was inherently wrong and needed to be done away with.

Judge Cushing went on to further an already distinguished career in the judiciary. In 1789 he was the first Associate Justice appointed to the U.S. Supreme Court by President Washington. His circuit travels as a federal judge took him from Portland, Maine to Augusta Georgia. He was an untiring advocate for the right of law. He had the honor as Senior Associate Justice (in the absence of the Chief Justice) to administer the oath of office to President Washington at his Second Inaugural, the first time this ceremony had ever been performed. President Washington later submitted his name to become the next Chief Justice of the U.S. Supreme Court, which was unanimously approved by the Senate, but due to ill health he felt he had to decline. He died on September 17, 1810, at age 78 years.

Madam Cushing survived her husband by more than a quarter of a century. It was her wish to be buried in a more accessible locale at the First Parish Cemetery and to have her husband's remains transferred there after her death. But Judge Cushing's relatives did not wish to disturb his resting place and so husband and wife who had been so close in life were separated in death. But that was only their physical remains. In spirit they were one.

I am, of course, struck by William Cushing's exemplary courage as a judge and a man of moral sensibilities. How many of us would have the moral fiber and guts to face down an armed and unruly mob and walk the gauntlet to uphold the right of law? I would like to think that we can look to his example to give ourselves courage to face the tumult of hate and greed that grips nations and cultures and follow the still small voice of conscience that tells us what is right and just and good in human relations.

Do you realize what a risky venture it was for a judge of the Crown to support Independence, or how radical a thing it was in 1783 to declare that slavery was not only unconstitutional, but immoral? He was speaking against moneyed business interests in both North and South who profited greatly from the institution of slavery. One man did indeed make a difference and helped change the thinking and actions of thousands of his fellow citizens. We never know when the actions and example we set may change the thinking and behavior of others great or small. May we take courage from his example and strive to live our lives as worthily as did our great jurist and fellow church member, Chief Justice William Cushing.

READING:
CHIEF JUSTICE CUSHING RULING AGAINST SLAVERY
WORCESTER, MASS. APRIL 1783

"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 formerly, but nowhere is it expressly enacted or established....But whatever sentiments have formerly prevailed in this particular,...a different idea has taken place with the people of America, more favorable to the natural right of mankind, and to that natural, innate desire of Liberty, with which Heaven (without regard to color, complexion or shape of noses, features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring 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 slavery is inconsistent with our own conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature...."