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C, Cushing, William.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Cushing, William.

(b. Scituate, Mass., 1 Mar. 1732; d. Scituate, 13 Sep. 1810; interred in family graveyard, Scituate), associate justice, 1789–1810. The son and grandson of judges of the Superior Court of the province of Massachusetts Bay, Cushing took his A.B. at Harvard College in 1751 and received an M.A. from Yale in 1753 and the same degree from Harvard in 1754. After reading law with the eminent Boston lawyer Jeremiah

William Cushing

(p. 245) Gridley, he became a member of the Boston bar in 1755 upon Gridley’s recommendation. The first years of his practice were difficult, despite being admitted in 1758 as an attorney to the superior court. Although he lived with his father at Scituate, he earned such a scant livelihood that in 1760 he moved to the northern frontier village of Pownalborough (now Dresden, Maine) where, as the only lawyer in the newly created county of Lincoln, he was appointed both justice of the peace and judge of probates. When his father retired from the superior court in 1772, he arranged for his son to succeed him as an associate justice. Cushing in 1774 married Hannah Phillips.

Forced by the rising conflict between the Colonies and the Crown to declare his allegiance to the patriot cause, Cushing alone of the royal appointees continued on the court after it was reorganized in October 1775 by the revolutionary council. He represented Scituate in the convention that drafted the Massachusetts Constitution of 1780. As chief justice (he succeeded John Adams in 1777), he presided over Commonwealth v. Jennison (1783), the case that in effect abolished slavery in the state, and in 1787 he tried the leaders of Shay’s Rebellion. A strong advocate of the Constitution, he acted as vice president of the state convention that narrowly ratified the document in February 1788.

The first associate justice that *George Washington appointed, William Cushing served on the Supreme Court for twenty-one years. His age and his increasingly ill health, coupled with the rigors of *circuit riding, so taxed his strength that he wrote only nineteen opinions. The most important of these were *Chisholm v. Georgia (1793), where he concurred with the majority that a state could be sued by a citizen of another state (see eleventh amendment); *Ware v. Hylton (1796), in which he wrote that a treaty is of equal force with the Constitution and hence cannot be violated by state laws; and *Calder v. Bull (1798), where in a two-sentence opinion characteristic of his propensity for brevity and perhaps for over-simplification, he agreed that the Constitution forbids *ex post facto laws in criminal cases but not in civil ones. In January 1795, following the Senate’s rejection of John *Rutledge to be chief justice, that body confirmed President Washington’s recommendation that Cushing be appointed to the post. After holding the commission for a week, Cushing declined because of ill health. He continued on the bench as an associate justice until his death, the last of Washington’s original appointees.

The Documentary History of the Supreme Court of the United States, 1789–1800, vol. 1 (1985), pp. 28–29, 101–103.

David R. Warrington(p. 246)