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Legal Miscellany.


Copyrighted 1890. Entered at the Post Office at Philadelphia as second-class matter.

Vol. II.

January 15, 1890.

No. 1.


1810. Born, March 1, 1732; died, September 13,

William Cushing was of Massachusetts birth and a graduate of Harvard, in the class of 1751. After graduation, his legal education was acquired in the office of the celebrated Jeremiah Gridley, of Boston, resulting in his admission to practice in 1755. His early legal life was spent in what is now the town of Dresden, in Maine, with the honor of Judge of Probate for

twelve years.

In 1771 Cushing was appointed to fill the vacancy on the Bench of the Superior Court of Massachusetts, caused by the resignation of his father. That position he continued to hold through all the perilous times of the Revolution, and until the organization of the Supreme Court of the United States, in 1789, when he was appointed one of the Associate Justices of this great tribunal.

Cushing's uninterrupted continuance irr judicial office under the waning power of the Royal Government, the rising Republic of the United Colonies, and finally in the early stages of the present National Government, call for some criticism before considering his opinions upon the United States Supreme Court Bench and his singular refusal of the honor of presiding over the great National Court. It appears that the calm, judicial repose of his mind was so great that no man knew to which party, or political creed, Cushing would incline, until his speech betrayed him. There was an entire absence of en

. thusiasm. Mr. Flanders (Lives, p. 19) quite loses his poise as a dispassionate writer and polished gentleman and joins the every-day crowd of warm-blooded patriots, with this criticism:

“We cannot speak of this guarded neutrality with approbation. It lacks the saving grace of decision and courage.”

When the time came for Massachusetts to cast in her lot upon the fate of that republican form of government in America, which Patrick Henry favored chiefly because he feared it was the only possible form, Cushing presided over the State Convention the greater part of its deliberations, and hence does not appear to have joined in the debates. He approved the change and was chosen one of the presidential electors, and then an Associate Justice of the new Supreme Court.

Attention has often been drawn to the scarcity of business in the Supreme Court of the United states, during the earlier years of its organization. Almost three years passed before an important decision was rendered, and Georgia v. Brailsford (1792), 2 Dall. 402, may be called the first. The Court granted an injunction to the State of Georgia, by which certain funds and executions were stopped in the hands of the U. S. Marshal, until the claim of that State could be adjudicated. It is a curious thing that the State of Georgia was thus the first to apply for relief to that Court, whose adverse decrees it soon actually defied more than once. Such one-sided justice has had many excuses, but they are all of a kind, and cannot wipe out the one-sidedness.

Each Justice gave his opinion in turn, and Cushing dissented on a strictly legal view of the Judiciary Act. He thought the State ought not to file a bill in equity, because it had a plain, adequate and complete remedy at law against the execution plaintiffs, though of course they might depart with the money before judgment, or fail, or some other legal contingency deprive the State of its money. Johnson, J., agreed with Cushing in denying the injunction. Wilson, J., thought the injunction might be granted, but that Georgia should have sued out a writ of error to the judgments upon which the cxecutions were issued. The State had been denied intervention in the suit at law before judgment, and CUSHING's reasoning seems much more correct as a technicality: and for a man who had held consecutively the Royal and the Re

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