"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.
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"...all the powers which Congress possesses."
Even your Parliament is a House of Ill-Repute.
OK, looking up Gibbons vs. Ogden it all becomes very clear in the first paragraph:
Congress to regulate commerce
...this is true. Sex sells.
Congress to promote the progress of science and useful arts
...again this is true. All art is essentially porn.
I love the law! I could do it all day.
So this was 'On The Waterfront' with boats? (Forgive me I get carried away.)
I did a doctoral paper on Guilllaume DuFay (renaissance composer/cleric) in which he hid a set of fairly off color lines in the midst of a sacred motet. You had to line the text up vertically to see it. It was obvious he did.
Sex, unlike the law, is timeless. It seeps into everything and that our founding fathers enjoyed a romp in the hay is both refreshing and witty and puts a human fingerprint on the debate.
This is from Post Captain, by Patrick O'Brian, set in the year 1802 or thereabouts, Diana Villiers and Stephen Maturin talking:
'Hush, Maturin. You must not use words like that here. It was bad enough yesterday.'
'Yesterday? Oh, yes. But I am not the first man to say that wit is the unexpected copulation of ideas. Far from it. It is a commonplace.'
'As far as my aunt is concerned you are certainly the first man who ever used such an expression in public.'
Of course, the thing about "unexpected copulation of ideas" is actually Samuel Johnson's, Rambler #194.
My 1860 Websters...
1. Literally, a running or passing between, hence,
2. Communication; commerce; conection by reciprocal dealingsbetween persons or nations;either in common affairs and civilities; in trade or correspondence by letters.We have an intercourse with neighborsand friends in mutual visits and in social concerns; nations and individuals have intercourse with foreign nations or individuals by an interchangechange of commodities, by purchase or sale, by treaties, contracts, &c.
3. Silent communication or exchange.
ben..try the OE:
[Middle English entercours, commercial dealings, from Old French entrecours, from Latin intercursus, a running between, interposition, from past participle of intercurrere, to mingle with : inter-, inter- + currere, to run; see kers- in Indo-European roots.]
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