William Cushing
Encyclopedia
William Cushing was an early Associate Justice
of the United States
Supreme Court, from its inception to his death. He was the longest-serving of the Court's original members, sitting on the bench for 21 years. Had he accepted George Washington
's appointment, he would have become the third Chief Justice of the United States
.
Massachusetts
to a family which had settled in adjacent Hingham
in 1638, Cushing graduated from Harvard College
in 1751 and became a member of the bar in Boston in 1755. Cushing's family was among the earliest settlers of Hingham. Although his family had a history of attorneyship
, he seemed to have had a hard time at the beginning of his career. During that time, as well, his father, John Cushing, served on the Massachusetts Superior Court of Judicature
for about 24 years. When his father resigned in 1771, Cushing took his position on the Court. However, when the American Revolution
started, he had to choose between the rebels and Great Britain
; unlike the rest of the court, he chose the rebels.
, citing the 1780 Constitution of Massachusetts's statement that "all men are born free and equal". During Shays' Rebellion
, he made sure that court sessions continued, despite the aggressive protests of the armed rebels. He later presided over the trial against the rebels. A year later, in 1788, he was vice president of the Convention of the Commonwealth of Massachusetts, which narrowly ratified the Constitution.
became President of the United States
, Cushing was among Washington's first choices for Supreme Court justices. He was nominated on September 24, 1789, and confirmed by the Senate
two days later. Although Cushing became Washington's longest serving Supreme Court appointment, only 19 of his decisions appear in the case reporters, mainly due to frequent travels and failing health, as well as the incompleteness of the case reports of the era. He generally held a nationalist
view typically in line with the views of the Federalist Party
, and often disagreed with Thomas Jefferson's
Democratic-Republicans
. His two most important decisions were probably Chisholm v. Georgia
and Ware v. Hylton
, which regarded intrastate suits and the supremacy of treaties
.
Cushing administered the oath of office at Washington's second inauguration as president.
resigned from the Court in 1795, Washington faced the task of appointing a new Chief Justice
. Washington appointed John Rutledge
on July 1, 1795 during a Senate
recess, during which time Rutledge served by recess appointment
. On December 15, 1795, during the Senate's next session, it rejected Rutledge's nomination.
Washington subsequently nominated Cushing on January 26, 1796; the Senate unanimously confirmed the nomination. An unverified story tells of a diplomatic dinner party the night of the Senate's confirmation vote, where Washington gave Cushing accolades as the Chief Justice of the United States, asking Cushing to sit in the seat to Washington's right, much to Cushing's surprise. The following day, Washington signed and dispatched Cushing's commission.
Cushing received his commission on January 27, but returned it to Washington on February 2, declining appointment. An error in the rough minutes of the Court on February 3 and 4, 1796 lists Cushing as Chief Justice, although this entry was later crossed out. This error can be explained by the text of the Judiciary Act of 1789
, which allowed for the Court to hear cases with a quorum
of only four justices; that is, the Chief Justice need not always be present for the Court to conduct business. As Cushing was the most senior Associate Justice present on those dates, he would have been expected to preside over the proceedings.
Washington then nominated Oliver Ellsworth
to be Chief Justice, transmitting the nomination to the Senate in a March 3 message stating that Ellsworth would replace "William Cushing, resigned." Subsequent histories of the Court have not counted Cushing as Chief Justice, but instead report that he declined the appointment. Had Cushing accepted promotion to Chief Justice and then resigned, he would have had to leave the court entirely; accepting the appointment would have implicitly required Cushing to resign his place as Associate Justice. That he continued on the Court as an Associate Justice for years afterward lends weight to the assertion that Cushing declined promotion. Additionally, Cushing's February 2 letter explicitly stated his return of the commission for Chief Justice, and his desire to retain his seat as Associate Justice.
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Supreme Court, from its inception to his death. He was the longest-serving of the Court's original members, sitting on the bench for 21 years. Had he accepted George Washington
George Washington
George Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...
's appointment, he would have become the third Chief Justice of the United States
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
.
Youth and early career
Born in ScituateScituate, Massachusetts
Scituate is a seacoast town in Plymouth County, Massachusetts, United States, on the South Shore, midway between Boston and Plymouth. The population was 18,133 at the 2010 census....
Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
to a family which had settled in adjacent Hingham
Hingham, Massachusetts
Hingham is a town in northern Plymouth County on the South Shore of the U.S. state of Massachusetts and suburb in Greater Boston. The United States Census Bureau 2008 estimated population was 22,561...
in 1638, Cushing graduated from Harvard College
Harvard College
Harvard College, in Cambridge, Massachusetts, is one of two schools within Harvard University granting undergraduate degrees...
in 1751 and became a member of the bar in Boston in 1755. Cushing's family was among the earliest settlers of Hingham. Although his family had a history of attorneyship
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
, he seemed to have had a hard time at the beginning of his career. During that time, as well, his father, John Cushing, served on the Massachusetts Superior Court of Judicature
Massachusetts Supreme Judicial Court
The Massachusetts Supreme Judicial Court is the highest court in the Commonwealth of Massachusetts. The SJC has the distinction of being the oldest continuously functioning appellate court in the Western Hemisphere.-History:...
for about 24 years. When his father resigned in 1771, Cushing took his position on the Court. However, when the American Revolution
American Revolution
The American Revolution was the political upheaval during the last half of the 18th century in which thirteen colonies in North America joined together to break free from the British Empire, combining to become the United States of America...
started, he had to choose between the rebels and Great Britain
Kingdom of Great Britain
The former Kingdom of Great Britain, sometimes described as the 'United Kingdom of Great Britain', That the Two Kingdoms of Scotland and England, shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom by the Name of GREAT BRITAIN. was a sovereign...
; unlike the rest of the court, he chose the rebels.
His work with state and federal constitutions
In 1783, Cushing presided over a criminal action that virtually abolished slavery in MassachusettsQuock Walker
Quock Walker, also known as Kwaku or Quok Walker , was an American slave who sued for and won his freedom in June 1781 in a case citing language in the new Massachusetts Constitution that declared all men to be born free and equal...
, citing the 1780 Constitution of Massachusetts's statement that "all men are born free and equal". During Shays' Rebellion
Shays' Rebellion
Shays' Rebellion was an armed uprising in central and western Massachusetts from 1786 to 1787. The rebellion is named after Daniel Shays, a veteran of the American Revolutionary War....
, he made sure that court sessions continued, despite the aggressive protests of the armed rebels. He later presided over the trial against the rebels. A year later, in 1788, he was vice president of the Convention of the Commonwealth of Massachusetts, which narrowly ratified the Constitution.
Supreme Court appointment
When George WashingtonGeorge Washington
George Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...
became President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
, Cushing was among Washington's first choices for Supreme Court justices. He was nominated on September 24, 1789, and confirmed by the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
two days later. Although Cushing became Washington's longest serving Supreme Court appointment, only 19 of his decisions appear in the case reporters, mainly due to frequent travels and failing health, as well as the incompleteness of the case reports of the era. He generally held a nationalist
Nationalism
Nationalism is a political ideology that involves a strong identification of a group of individuals with a political entity defined in national terms, i.e. a nation. In the 'modernist' image of the nation, it is nationalism that creates national identity. There are various definitions for what...
view typically in line with the views of the Federalist Party
Federalist Party (United States)
The Federalist Party was the first American political party, from the early 1790s to 1816, the era of the First Party System, with remnants lasting into the 1820s. The Federalists controlled the federal government until 1801...
, and often disagreed with Thomas Jefferson's
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
Democratic-Republicans
Democratic-Republican Party (United States)
The Democratic-Republican Party or Republican Party was an American political party founded in the early 1790s by Thomas Jefferson and James Madison. Political scientists use the former name, while historians prefer the latter one; contemporaries generally called the party the "Republicans", along...
. His two most important decisions were probably Chisholm v. Georgia
Chisholm v. Georgia
Chisholm v. Georgia, 2 U.S. 419 , is considered the first United States Supreme Court case of significance and impact. Given its date, there is little available legal precedent...
and Ware v. Hylton
Ware v. Hylton
Ware v. Hylton is the short name of a United States Supreme Court case where a divided court ruled that an article in the Treaty of Paris, which provided that debtors on both sides should meet no lawful impediment when recovering bona fide debts, took precedence and overruled a Virginia law passed...
, which regarded intrastate suits and the supremacy of treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
.
Cushing administered the oath of office at Washington's second inauguration as president.
The third Chief Justice?
When John JayJohn Jay
John Jay was an American politician, statesman, revolutionary, diplomat, a Founding Father of the United States, and the first Chief Justice of the United States ....
resigned from the Court in 1795, Washington faced the task of appointing a new Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
. Washington appointed John Rutledge
John Rutledge
John Rutledge was an American statesman and judge. He was the first Governor of South Carolina following the signing of the Declaration of Independence, the 31st overall...
on July 1, 1795 during a Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
recess, during which time Rutledge served by recess appointment
Recess appointment
A recess appointment is the appointment, by the President of the United States, of a senior federal official while the U.S. Senate is in recess. The U.S. Constitution requires that the most senior federal officers must be confirmed by the Senate before assuming office, but while the Senate is in...
. On December 15, 1795, during the Senate's next session, it rejected Rutledge's nomination.
Washington subsequently nominated Cushing on January 26, 1796; the Senate unanimously confirmed the nomination. An unverified story tells of a diplomatic dinner party the night of the Senate's confirmation vote, where Washington gave Cushing accolades as the Chief Justice of the United States, asking Cushing to sit in the seat to Washington's right, much to Cushing's surprise. The following day, Washington signed and dispatched Cushing's commission.
Cushing received his commission on January 27, but returned it to Washington on February 2, declining appointment. An error in the rough minutes of the Court on February 3 and 4, 1796 lists Cushing as Chief Justice, although this entry was later crossed out. This error can be explained by the text of the Judiciary Act of 1789
Judiciary Act of 1789
The United States Judiciary Act of 1789 was a landmark statute adopted on September 24, 1789 in the first session of the First United States Congress establishing the U.S. federal judiciary...
, which allowed for the Court to hear cases with a quorum
Quorum
A quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group...
of only four justices; that is, the Chief Justice need not always be present for the Court to conduct business. As Cushing was the most senior Associate Justice present on those dates, he would have been expected to preside over the proceedings.
Washington then nominated Oliver Ellsworth
Oliver Ellsworth
Oliver Ellsworth was an American lawyer and politician, a revolutionary against British rule, a drafter of the United States Constitution, and the third Chief Justice of the United States. While at the Federal Convention, Ellsworth moved to strike the word National from the motion made by Edmund...
to be Chief Justice, transmitting the nomination to the Senate in a March 3 message stating that Ellsworth would replace "William Cushing, resigned." Subsequent histories of the Court have not counted Cushing as Chief Justice, but instead report that he declined the appointment. Had Cushing accepted promotion to Chief Justice and then resigned, he would have had to leave the court entirely; accepting the appointment would have implicitly required Cushing to resign his place as Associate Justice. That he continued on the Court as an Associate Justice for years afterward lends weight to the assertion that Cushing declined promotion. Additionally, Cushing's February 2 letter explicitly stated his return of the commission for Chief Justice, and his desire to retain his seat as Associate Justice.
Death and legacy
In 1810, Cushing died in his hometown of Scituate, Massachusetts. He is buried in a small cemetery there which is also a small state park. His wife would have preferred that he be buried at the Norwell Congregational Church but he insisted on being buried in Scituate.See also
- List of Justices of the Supreme Court of the United States
- List of United States Chief Justices by time in office
- List of U.S. Supreme Court Justices by time in office
- United States Supreme Court cases during the Ellsworth Court
Further reading
- Flanders, Henry. http://books.google.com/books?id=eEQEAAAAYAAJ&printsec=frontcover&dq=Flanders,+Henry.+The+Lives+and+Times+of+the+Chief+Justices+of+the+United+States+Supreme+Court&source=bl&ots=TlVq46f3l1&sig=xFW-bezy_iOIcXW3X8l-bbzddk8&hl=en&ei=kh1TS5atOIzkNc3DuYkJ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CAcQ6AEwAA#v=onepage&q=&f=falseThe Lives and Times of the Chief Justices of the United States Supreme Court]. Philadelphia: J. B. Lippincott & Co., 1874 at Google Books.