On September 13, 1810, William Cushing passed away in Scituate, MA. Cushing had served his nation in a number of important and prestigious roles: Chief Justice on the Supreme Judicial Court of Massachusetts during the Revolution, one of the six original Associate Justices of the Supreme Court of the United States (where he served for over twenty years), and a (often forgotten) very brief stint as the Chief Justice of the United States. Perhaps most notable of all, Chief Justice Cushing pronounced slavery unconstitutional in Massachusetts in 1783–over eighty years before the United States would abolish slavery throughout the country by way of the Thirteenth Amendment. Yet even the nerdiest of legal nerds may not recognize the name when mentioned, let alone appreciate his contributions to the early Republic. That should change.
Cushing pronounced the end of slavery in Massachusetts in a jury charge in the case of Commonwealth v. Jennison. Understanding the spirit of the Revolution better than many of his contemporaries, and applying the plain meaning of the pronouncements of Article I, Part the First, of the Massachusetts Declaration of Rights, Cushing declared:
[T]hese sentiments led the framers of our constitution of government . . . to declare – 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 his life and property. In short, without resorting to implication in constructing the constitution, slavery is in my judgment as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence. The court are therefore fully of the opinion that perpetual servitude can no longer be tolerated in our government, and that liberty can only be forfeited by some criminal conduct or relinquished by personal consent or contract.
By 1790, slavery had disappeared as a formal institution in the Commonwealth. While Jennings is not understood to have been widely reported at the time, and thus its influence in ending slavery in Massachusetts is uncertain, it would have undoubtedly played a role in the formal demise of the “peculiar institution” in the state. It would have signaled to slaveowners that their claims to property in their slaves would be unenforceable in Massachusetts state courts. After the pronouncement, slaves could walk away from their masters without fear of formal, legal retribution for doing so. Regardless of its real-world impact at the time, Cushing’s willingness to recognize the simple proposition that “all” means “all” when it comes to the rights of persons, at a time when few of his contemporaries were willing to do so, stands out as a notable reason to honor his memory better than we have done thus far.
I recall reading somewhere (though I cannot recall the source at the moment) that someone once called to the attention of either Chief Justice Rehnquist or Chief Justice Roberts that the enumeration of Chief Justice was off by one because Chief Justice Cushing was missing in the list. The Chief politely took the information under advisement but chose not to re-enumerate the list. In an era where the recognition of certain other Chiefs has become controversial, perhaps the Court could at least reverse course and do Cushing the honor of formal recognition for his brief tenure in the position?