Posted by Sasha Volokh:
Updating the OED
http://volokh.com/archives/archive_2006_07_09-2006_07_15.shtml#1152422787
Hi, Sasha here -- good to be back, after a two-year hiatus. Note to
all: If you look at my personal web page, it's seriously (about a year
and a half) out of date. I'm working on that.
For my first new post, I'll share a recent time-wasting activity of
mine: coming up with "pre-dating" and "post-dating" evidence for
entries in the Oxford English Dictionary. You may be aware that the
OED has not only definitions but also historical usages, and my
impression is that they try to find the first known English usage and
list usages at regular intervals from then until the last known
English usage, or until the present day if the word's still in use.
The OED is also a collaborative enterprise, so [1]they solicit
freelance dating work.
So, a [2]blog comment I recently read ("normal humans, rather than
lawyers, regard the word 'absent' as an adjective rather than a
preposition") made me wonder: is the prepositional sense of "absent"
(meaning "without" or "in the absence of") really a lawyerly usage? I
didn't think so, but then I may have false consciousness, since I read
lawyers all the time. The OED did say this was an American, mostly
legal, usage, and showed historical examples from 1944 to 1983. 1944
sounded awfully recent to me, so I did my own digging, and found the
following, which I passed on to the nice folks at the OED. What
follows is an illustrative, not exhaustive, list -- though it's easy
to find occurrences of this usage for any year after 1907, I've only
given about one occurrence per decade in the 20th century.
1888 South Western Reporter VIII. 898 If the deed had been made by
a stranger to the wife, then a separate estate in her would not
have been created, absent the necessary words; but, being made to
the wife by the husband, a separate estate, as against him, was the
result. 1893 South Western Reporter XII. 629 Absent any evidence to
the contrary, a proper and legitimate purpose will be presumed.
1898 South Western Reporter XLV. 303 Absent any one of these
ingredients, there is no contract. 1906 South Western Reporter
XCIV. 591 Absent one of these ingredients, there is no contract.
1914 South Western Reporter CLXXII. 17 A mere barren and abandoned
conspiracy sounding in words, but jejune of acts or results, is not
actionable, absent a statute so declaring. 1929 South Western
Reporter (2d series) XVIII. 490 Absent a tender of an instruction
properly defining said words, it was not error for the court to
fail to do so. 1938 Federal Suppl. XXV. 861-62 The design, absent
the color and display thereby created, is not more ornamental than
many types of similar shoes.
The funny citation style is me trying to mimic the OED's citation
style. The usage is much rarer before 1908, and all the early
occurrences I've found have been from Missouri -- apparently, a few
judges (Justice Sherwood, sat 1872-1902; Justice Lamm, sat 1905-1914)
enjoyed using the term.
References
1. http://oed.com/readers/research.html
2.
http://www.dianahsieh.com/cgi-bin/blog/comments/view.pl?entry=115154726133178533#8
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