Ruminations
14
Other Ruminations on Vermont Legal History by the Vermont Historical Society.
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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