John Hancock Appoints the First Chief Justice Under the First Massachusetts State Constitution

The appointee, William Cushing, would lead the court to ban slavery, making Massachusetts the first state to do so

Massachusetts held a Constitutional Convention in 1779-1780 to enact its first state constitution. John Adams, a legal scholar as well as Founding Father, was the document’s principal author. Voters approved the Constitution of Massachusetts on June 15, 1780. It became effective on October 25, 1780, and remains the oldest functioning written constitution in continuous effect in the world, with some provisions older than those of any other state in the nation. It was also the first constitution anywhere to be created by a convention called for that purpose rather than by a legislative body. In fact, the Massachusetts Constitution served as a model for the United States Constitution, which was written in 1787 and became effective in 1789.

William Cushing was a member of the Massachusetts Superior Court during colonial days, having been appointed in 1772. After the outbreak of the Revolution, the Massachusetts Provincial Congress sought to reorganize the courts to remove the trappings of British sovereignty. Consequently, it dissolved the colonial Superior Court and reformed it in November 1775, calling the new organization the Superior Court of Judicature. Of all the justices under the British regime, Cushing – favorable to the Revolution – was the only one retained. The Provincial Congress offered the seat of Chief Justice first to John Adams, but he never sat, and resigned the post in 1776. The Provincial Congress then appointed Cushing to be the court’s first sitting Chief Justice in 1777, and he would remain in that post until the new Massachusetts Constitution became effective at the end of 1780. Pursuant to that new Constitution, Governor John Hancock had the authority to name the Commonwealth’s first Supreme Judicial Court, and on February 16, 1781, Hancock formally appointed the five justices serving on the old Superior Court of Judicature as justices of the new Supreme Judicial Court. Cushing was chosen to continue to head the court, and thus became the first Chief Justice of the high court of Massachusetts.

Document signed, as Governor of the Commonwealth of Massachusetts, oversize on vellum, Boston, February 16, 1781, appointing “William Cushing, Esq., Chief Justice of the Supreme Judicial Court of the aforesaid Commonwealth…” . The document is countersigned by John Avery. On the verso is Hancock’s certification: “In Council, February 20, 1781. Honorable William Cushing, Esq. appeared at the Council Chamber. Subscribed the declaration & took the several oaths prescribed by the Constitution of this Commonwealth to qualify himself for the office herein mentioned.” This certification has been signed by Hancock, meaning that this document contains two Hancock signatures.

Cushing’s term as Chief Justice resulted in some very significant developments. In 1783, he presided over a series of cases involving Quock Walker, a slave who filed a freedom bill based on the language of the new state constitution. Up till then no state had outlawed slavery effective immediately and enforced that abolition. In April of that year, in the last of the Walker cases, Commonwealth vs. Jennison, Cushing stated the following principles: “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 or slid in upon us by the example of others, a different idea has taken place with the people of America, more favorable to the natural rights 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 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 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, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract…” Slavery was ended in Massachusetts by that ruling, and the 1790 census showed the number of slaves remaining in Massachusetts as zero.

Cushing was vice president of the state convention that ratified the Constitution of the United States in 1788, and presided at most of the sessions because of the illness of John Hancock who was president. He would sit as Massachusetts Chief Justice until 1789, when he was called to serve on the first U.S. Supreme Court by President Washington. Cushing’s commission was dated on September 27, 1789, next after that of the first Chief Justice, John Jay.