Judge Gushing attempted to steer a middle course. He abstained from any expression of political opinion. He tried to retain his friendship with both sides, with the royal party and the friends of his father on the one hand, with John Adams and Thomas Gush ing on the other. He was finally compelled in 1774 to choose between accepting his sal ary from the Province instead of the Crown, and impeachment. Reluctantly, without comment, he elected the former, alternative. This was the beginning of the end of judicial administration in Massachusetts under His Majesty's government. Alone of the royal judges Gushing now took the side of his country. When the Provincial Congress re organized the judiciary in the autumn of 1775. he was appointed one of the justices. If the Revolution had not succeeded, this po sition of course would have exposed him to the severest punishment. Nevertheless hav ing been compelled to elect, he acted with firmness. He saw that independence or sub jugation alone could result from the strug gle, and on June 4, 1776, drafted the instruc tions to the representatives of Scituate in the Provincial Congress, which urged them to have the delegates in the Continental Con gress declare independence. In February, 1777, John Adams resigned his office of Chief Justice of Massachusetts, never having served in that capacity, as he had been en gaged in the Continental Congress. Gush ing was appointed in his place. He presided over this court for over twelve years to the satisfaction of both bench and bar. There can be no doubt that he was an able lawyer and an upright judge. His most noted de cision, however, is sufficiently surprising. In April, 1783, he held that the first article of the Bill of Rights, which declared that all men are born free and equal, abolished slav ery in Massachusetts. At the close of the Revolution Massachu setts was overwhelmed by debt. Taxation was oppressive. It gave rise to great discon tent. Shay's Rebellion in 1786 was not its only unfortunate expression. On other oc
casions frequently the court-houses were surrounded by armed and angry mobs, through which the Chief Justice walked pale, but resolute. His love for the administra tion of the law, his high conception of its dignity overcame his personal timidity. Great ought to be his honor for his calm per sistence in the performance of his judicial duties. In 1785 and 1794 he was asked by all parties to stand for election to the Gov ernorship. On both occasions he declined. In 1785 he was given the degree of Doctor of Laws by Harvard College, and in January, 1788, in the absence of John Hancock, the President of the Convention which ratified the Federal Constitution, Mr. Chief Justice Gushing presided over its deliberations as Vice-President. On September twentyfourth, 1789, he was nominated by Washing ton and confirmed by the Senate an Associ ate Justice of the Supreme Court of the United States. His commission was dated September twenty-seventh. He attended the first term of the Supreme Court in February, 1790, at New York. It was probably the first time that he had ever been out of New England. But while a Federal judge he conscientiously went the circuit, and as the Justices then annually changed their circuits Mr. Justice Gushing visited all parts of the country. As the sen ior Associate Justice he presided over the court after Mr. Chief Justice Jay's departure for England in May, 1794. And upon the rejection of the nomination of Mr. Chief . Justice Rutledge by the Senate, he was nom inated by Washington to that vacant place on January twenty-seventh, 1796. and was immediately confirmed. After keeping the commission for a week he returned it upon the ground of ill-health. Washington tried in vain to dissuade him from his declination. Sickness somewhat interfered with the per formance of his -judicial duties during the last years of his life, and he had already writ ten a letter of resignation when he died on September thirteenth, 1810. Mr. Justice dishing appears to have been
