Vermont Bar Journal, Vol. 40, No. 2 - Page 14

Ruminations 14 Other Ruminations on Vermont Legal History by the Vermont Historical Society. ____________________ State v. Jewett, 146 Vt. 221, 225 (1985). Justice Hayes pointed to F. Wiener’s Briefing and arguing federal appeals as his source. frederick Bernays Wiener, Briefing and arguing federal appeals (1961), 5. Wiener gives no footnote, but tracing the phrase “cuss the court” back in time reveals there are corollaries with regional differences. Chief Justice Fred H. Blume of the Wyoming Supreme Court is cited as the principal source for a variation of the quote, from a concurring opinion written in 1957. He wrote, “There is, perhaps, some common sense in the old adage which we have in the West that a defeated litigant has 24 hours (some say 48) to ‘cuss’ the court, but that he must ‘shut up’ thereafter. It is a crude compromise between freedom of speech and, if we want to keep on being civilized, the respect necessarily due the court.” Application of Stone, 305 P.2d 777, 792 (1957). That case involved an appeal of an order finding contempt of court. In 1952, there was a fight at the Republican National Convention over the seating of delegates. John E. Jackson responded to criticism of the National Committee’s decision made by Judge John Wisdom and said, “When a lawyer loses a case, he can appeal or cuss the court. Mr. Wisdom has chosen to cuss the court.” Joel William Friedman, “Judge Wisdom and the 1952 Republican National Convention: Ensuring Victory for Eisenhower,” Washington and lee laW revieW, note 29, at 12; Thomas Sancton, Admits Patronage Is Issue, neW orleans item, Apr. 29, 1952, at 5. In a 1944 decision from Louisiana, the quote was attributed to Justice Newton C. Blanchard, who served from 1897 to 1903 on the Louisiana Supreme Court. “We believe that it was Justice Blanchard who once said in an opinion of the Supreme Court that it was the constitutional privilege of a lawyer to curse the Court for a period of thirty days after losing a case. We grant that same privilege provided it is done out of hearing of the Court.” In other words, courts expect to disappoint people (and lawyers), and understand they may say things in private that are less than respectful of the court and its decision. Diggins v. M.W. Kellogg Co. 17 So.2d 367, 370 (1944). The cited decision of Justice Blanchard was not retrievable through Westlaw. 1 In 1942, in an article about jury instructions in the Florida Bar Journal, J. Thomas Gurney wrote, “About all that a lawyer can do after he goes wrong is to follow the course of the young man who lost a case before a very blunt trial judge, and who became quite heated in his protests. The judge finally turned to him and said, ‘Mr ___, you have two remedies, either of which you can pursue. You can appeal, or you can go out behind the courthouse and cuss the court,” to which the young lawyer rejoined: ‘Yes, Your Honor, and I shall pursue them both.”’ J. thomas gurney, “instructions to Juries in trial of damage suits,” quoted in “to provide a flavor of the range of voices and issues aired in the Bar Journal in 75 years of florida Bar Journal,” decemBer 2002, 76 DEC Flax.B.J. 17. The phrase is used in other decisions. Peters v. State, 71 Okl.Crim. 175, 110 P.2d 300, 303 (1941); Kieschnick v. Marin, 208 S.W. 948 (1919). In 1903, Justice William Champe Marshall of the Missouri Supreme Court wrote on the power to sanction for contempt, To be a judge, without such powers as a judge, were to be a kicking post for every madman, a butt for every idiot or knave, and, withal, an object of contempt of all men. Unfortunately, there must always be a losing as well as a winning party to every suit, and courts must needs inflict pain as well as impart joy by every judgment rendered. But the loser to-day may be the winner in another case to-morrow. And so, if every loser was privileged to go to the tavern and ‘cuss the court’ to-day, he would necessarily have to retract his reproaches and praise the court to-morrow, when he is a winner. So it is in life. It is nearly always true that one man’s loss is another’s man’s gain. But life is not a failure, and business is not a fraud and to be condemned for such reasons. ‘Do unto others as ye would others should do unto you,’ do not bear false witness against your neighbor, keep the commandments, obey the laws, tell the truth, be honest to yourself as well as to your fellow man, bear no malice, but judge all men with charity, and life will be sweeter and more profitable, and the world will be better, and your neighbor’s faults will not appear quite so unpardonable. In this spirit the judgment in this case was entered, and in this spirit let it be judged. State ex inf. Crow v. Shepherd, 76 S.W. 79, 100 THE VERMONT BAR JOURNAL • SUMMER 2016 (1903). A.G. McBride wrote an article in the Seattle Republican in 1911, and stated, “Judge Humes once