Shakespeare Authorship Twister: Oxfraudia's Prima Facie Brief.

Those who have been members of the Edward de Vere was Shakespeare Group will have noticed that I post one or two new items each week from my Virtual Grub Street blog. During the remainder of the Sunday through Friday week I generally cycle through the hundred-plus articles previously posted. The new members will find them new and should the older members not find them new they will be able to review various subjects as they wish.

The most persistent anti-Oxfordians have the further experience of seeing their insupportable assertions in that regard come back into public view. This appears to cause them considerable discomfort.

In this particular instance, the 'Fraud Mark Johnson challenges me to show a duty to disclose Ben Jonson's hand in the letters of the front matter of the Shakespeare First Folio in the Oxfraud Prima Facie Brief. As usual, among his tactics is to give me a text that suits his needs and to demand that I show in it a precise quote that establishes any such duty.

As it turns out, I will be quite pleased to begin with the text he chooses. But first, it is worth quoting from the text to which I was actually referring:

Rule 4.1: Truthfulness in Statements to Others

Transactions With Persons Other Than Clients

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

This from the American Bar Association's “Model Rules of Professional Conduct”.

As I have repeatedly pointed out, Item #9 of the Oxfraud Prima Facie Brief unequivocally states that

John Heminges and Henry Condell state that the works in the First Folio were written by “so worthy a friend and fellow... as was our Shakespeare”.

This fails to disclose the material fact that Ben Jonson is widely understood to have written most if not all of the letters at the front of the First Folio, not Heminges and Condell. The readers of the Oxfraud brief are third parties who are willfully deprived of this material fact. Item #9, therefore, violates a lawyer's (or purported lawyer's) core ethical responsibility.

As for the text Mr. Johnson requires, it arrives at an even less satisfying outcome for Mr. Johnson as it turns out.

[Federal Rules of Civil Procedure] Rule 26. Duty to Disclose; General Provisions Governing Discovery

(3) Pretrial Disclosures.

(A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:

1. the name and, if not previously provided, the address and telephone number of each witness—separately identifying those the party expects to present and those it may call if the need arises;

2. the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and

3. an identification of each document or other exhibit, including summaries of other evidence—separately identifying those items the party expects to offer and those it may offer if the need arises.

Neither Heminges, Condell nor Jonson can be listed as witnesses given that witnesses testify in person. If their purported letters are to be considered a de facto deposition, each must be verified to be a correct record of the actual statement spoken or written, at the time they were given, by Certified Court Recorder (CCR) Seal and the witness signatures must be verified by a statement and seal of a Notary Public who observed them being written. Anything less disqualifies the letters and the purported (printed) signatures of any evidentiary value before the law.

If Mr. Johnson wishes to offer the letters as a sworn statement of any sort the rules of “28 U.S. Code § 1746 - Unsworn declarations under penalty of per­jury” require the following at the end of each letter.

“I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).

(Signature)”.

Each Heminges and Condell are required to sign the declaration personally and each signature must be notarized. Otherwise they are not admissible at law as a statement of either of the gentlemen whose names appear printed at the bottom of the document.

Thus, the printed names of Heminges and Condell do not qualify as legal signatures before the law as asserted by Mr. Johnson, Mr. Buchan and Oxfraudian company. The text of the letters do not qualify before the law as sworn witness statements as they claim.

Undoubtedly, Mr. Johnson, and his fellow 'Frauds, will cry, something along the lines of “There's an Historical Document exception that overrules all of this.” They will be referring to Rule 901, paragraph 8. That “Authenticating” appears in the title of the rule they will declare to be determinative although paragraph 8 only identifies ancient documents and is not authentication of any of the text.

[Federal Rules of Evidence] Rule 901 – Authenticating or Identifying Evidence

(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

*

(901)(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

(A) is in a condition that creates no suspicion about its authenticity;

(B) was in a place where, if authentic, it would likely be; and

(C) is at least 20 years old when offered.

Given that the letters are understood to have been composed all or in part by Ben Jonson, the letters as described in Item #9 are decidedly not “in a condition that creates no suspicion about [their] authenticity.” This is a material fact that Oxfraud's purported lawyers are required to disclose under the ethics rules of the ABA.

Equally destructive to Item #9 of the aforementioned brief being admitted as evidence is that the sole mechanism by which it is allowed is by Hearsay Exception.

[Federal Rules of Evidence] Rule 803. Exceptions to the Rule Against Hearsay

(16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.

Beyond the failure to meet the requirement in 901(A) — which absolutely disqualifies it — any admission of assertions in the document in evidence is an admission as hearsay only.

The Notes of Advisory Committee on Proposed Rules for Federal Rule of Evidence 803(16) provide:

Authenticating a document as ancient, essentially in the pattern of common law, as provided in Rule 901(b)(8), leaves open as a separate question the admissibility of assertive statements contained therein as against a hearsay objection. 7 WIGMORE § 2145a. Wigmore further states that the ancient document technique of authentication is universally conceded to apply to all sorts of documents, including letters, records, contracts, maps, and certificate, in addition to title documents, citing numerous decisions. Id. § 145. Since most of these items are significant evidentially only insofar as they are assertive, their admission in evidence must be as a hearsay exception.¹

All of this being law, Item #9 of the Fraud-ulent brief is not admissible as it stands. Replacing it with some variation of the following is the best they can do and remain within the Federal Rules of Evidence.

Front letters of the First Folio include the phrase “so worthy a friend and fellow... as was our Shakespeare”. The names of John Heminges and Henry Condell are printed at the bottoms of each in identical typeface as the text of the letters.

I invite them to meet their ethical obligations and to come into conformance with the law.

Please do not misunderstand me, dear readers. While the case presented here is an absolute slam-dunk, purported 'Fraudian lawyers will just as absolutely prove to be blind to it. The inevitable game of Prima Facie Brief Twister is about to begin. At least it will be highly entertaining to watch them twist the law and themselves into pretzels in the Free Form (a.k.a. Ethics Free) version of the game and to emerge at the end still loudly challenging all comers and declaring that no one has ever refuted the Brief.

1 Kettles, Gregg. Ancient Documents and the Rule Against Multiple Hearsay (1999). 732 n.68. Also cited at Legal Information Institute https://www.law.cornell.edu/rules/fre/rule_803#rule_803_6 et alli.

Also at Virtual Grub Street:

• Rocco Bonetti's Blackfriars Fencing School and Lord Hunsdon's Water Pipe. August 12, 2023. “... the tenement late in the tenure of John Lyllie gentleman & nowe in the tenure of the said Rocho Bonetti...”

• On Shakespeare's lameness and historical-fiction biography, etc. August 5, 2023. “Those who support Sogliardo of Stratford and other authorship candidates generally stop by from time to time to remark...”

• Shakespeare CSI: Sir Thomas More, Hand-D. April 22, 2023. “What a glory to have an actual hand-written manuscript from the greatest English writer of all time!”
• Robert Greene and the Construction Shakespeare Never Used. August 9, 2022. 'Our first foray “staring intently into” the texts of Robert Greene has noted that his work utilized far fewer feminine endings than Shakespeare’s.'

• A 1572 Oxford Letter and the Player’s Speech in Hamlet. August 11, 2020. “The player’s speech has been a source of consternation among Shakespeare scholars for above 200 years.  Why was Aeneas’ tale chosen as the subject?”

• Check out the Shakespeare Authorship Article Index for many more articles and reviews about this fascinating time and about the Shakespeare Authorship Question.
• Check out the Letters Index: Edward de Vere, 17th Earl of Oxford for many letters from this fascinating time, some related to the Shakespeare Authorship Question.

Was Shakespeare Gay? What do the sonnets really say?