"The council in argument begin so low, as scarcely to be heard," Seawell writes, "and gradually swell until they fairly rave; then they gently subside into a soft whisper. Their gesticulation is menacing, both to the Court and the bystanders, and an equal portion of all they say, is distributed to every part of the hall."As Muller notes, this is not the way the lawyers do oral argument today. Hammy oratory is no longer at all acceptable.
People were different in the past, and we may forget that. But people were also the same, even in some ways where we've been assuming they were different.
Reading Gibbons v. Ogden today, we tend to titter when we get to the line "Commerce, undoubtedly, is traffic, but it is something more: it is intercourse."
Personally, when I teach Gibbons, I never read that line out loud. It sounds too ridiculous, and it's pointlessly distracting. Only once in 20 years has a student introduced the word into the discussion. We're sort of being polite, giving John Marshall credit for using a word that obviously couldn't have conveyed sexual meaning at the time.
But check out Seawell's letter:
"According to a definition given to the word 'Commerce' by the Atto. Genl. that it means 'intercourse,' I shall soon expect to learn, that our fornication laws are unconstitutional: for the favorite doctrine now is, that all the powers which Congress possesses are exclusive – and consequently the sole power of acting upon that subject is transferred to them."He got the double entendre and thought it was cool to joke around about it in a letter to his pal the Supreme Court Justice in 1824.
We forget that people in the past were always talking about sex.