Sunday, June 5, 2011

Shakespeare a Lawyer? - 10 - Absque hoc, Obsque hoc, Falstaff

Was Shake-Speare a lawyer?

Part 10

Valid Pointers to Shake-Speare being a Lawyer - Introduction

22.  Proper Costs and Charges

In 2 Henry VI, 1.1.60, an agreement provides that Lady Margaret be brought to England to marry Henry VI and that "she [be] sent over of [at] the King of England's own proper cost and charges". The Arden editor comments" "a legal expression used in state affairs, translating suis & eorum propriis sumptibus & expensis." In fact the expression is used (even today) in private contracts as well as in state documents. Shake-Speare should have said "costs" in the plural, but "cost" may be a misprint. I would not expect a layman to know this expression.

21Absque Hoc

In 2 Henry IV, 5.5.24 Falstaff and his cronies are waiting to see Henry V pass them as he comes in procession from his coronation:

Falstaff:   But to stand stained with travel, and sweating with desire to see him,
              thinking of nothing else, putting all affairs else in oblivion as if there
              were nothing else to be done but to see him.
Pistol:     'Tis semper idem, for obsque hoc nihil est; 'tis all in every part.

Semper idem means "ever the same". but obsque [presumably a misprint for abesque] hoc nihil est seems more opaque. However, John Lord Campbell in his Shakespeare's Legal Acquirements Considered (1859), p. 90 explained it: "Pistol is made to utter an expression used, when the record was in Latin, by special pleaders in introducing a special traverse or negation of a positive material allegation of the opposite side, and so framing an issue of fact for the determination of the jury; absque hoc 'without this that' - then repeating the allegation to be negatived". Cunningham (T.L.S 17 July 1930, p. 592) endorsed this explanation, concluding that "Pistol's meaning is that the legal phrase absque hoc is nothing to the point, and that no exception can be pleaded [Nihil est = 'There is nothing'] to Sir John's declaration of loyalty [to the King] - no defence or plea can be valid against this pleading".

I have no doubt that this explanation is correct - there is nothing to be said by way of [i.e. prefaced by the words]  absque hoc against Falstaff's loyalty to the King. O. Hood Phillips in his Shakespeare and the Lawyers (1972), p. 176, quotes F.F. Heard (an American author of legal textbooks) in his Shakespeare as a Lawyer (1883) as saying that no explanation of the term absque hoc can be found in Elizabethan literature, and continues: "In the absence of any explanation of this highly technical term of pleading in all reports and treatises extant in the time of Shakespeare. Heard says it seems to justify the conclusion that he must have obtained a knowledge of it from actual practice". It would certainly be remarkable if Will Shakspere of Stratford knew this term and thought of using it in the context (He might well have known semper idem which was the Queen's favourite motto, and also "all in every part" which was a proverb expressing absolute perfection - Falstaff's loyalty to the King was perfect).

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