Sunday, June 5, 2011

Shakespeare a Lawyer? - 19a - Hamlet Hales v Petit

Was Shake-Speare a lawyer?

Part 19 (1 of 2)

Valid Pointers to Shake-Speare being a Lawyer

4.  Hales v Petit and the Burial of Ophelia

This is one of the long posts on this topic. But it deals with one of the most interesting scenes in one of the most popular plays, that of Hamlet. So this may be enough to keep your interest through it.

In Hamlet 5.1.1-20 two gravediggers burying Ophelia who has drowned, perhaps by her own act, engage in a discussion about the law of suicide:

1st Gravedigger:  Is she to be buried in Christian burial, when she wilfully seeks
                          her own salvation?
2nd Gravedigger:  I tell thee she is, therefore make her grave straight. The
                          crowner hath sat on her and finds it Christian burial.
1st Gravedigger:  How can that be, unless she drowned herself in her own
2nd Gravedigger:  Why, 'tis found so.
1st Gravedigger:   It must be se offendendo, it cannot be else. For here lies the
                          point: if I drown myself wittingly, it argues an act, and an act
                          hath three branches - it is to act, to do, to perform; argal
                          [therefore] she drowned herself wittingly.
2nd Gravedigger:  Nay, but hear you, Goodman Delver -
1st Gravedigger:  Give me leave. Here lies the water - good. Here stands the
                          man - good. If the man go to this water and drown himself, it
                          is, will he nill he, he goes mark you that. But if the water come
                          to him, he drowns not himself. Argal, he that is not guilty of
                          his own death shortens not his own life.

This echoes an actual law case, Hales v Petit, reported in 1 Plowden's Law Reports. As the Arden Hamlet editor comments: "Shakespeare's knowledge of the arguments about suicide in the case of Hales v Petit, however come by, seems beyond question". That case had been decided in the early 1550's some 50 years before Hamlet was written. Sir James Hales, a judge of the Common pleas, had committed suicide by drowning himself in a river. Since suicide was a felony, he was denied Christian burial and his property was forfeited to the Crown. One item of property was a lease which he and his wife had owned jointly. The Crown, having forfeited it, granted it to one Petit. Hales v Petit was an action by Hales's widow claiming that the lease should not have been forfeited, and had become her sole property by right of survivorship.

It was accepted at the hearing that, for the forfeiture of the lease to be valid, it was necessary for the Crown (and Petit) to prove that the event giving rise to the forfeiture occurred in Hales's lifetime. Otherwise, his joint interest in the lease passed to his widow at the moment of his death and could not subsequently be divested. So which occurred first - his suicide or the passing of his interest to his widow? The correct answer, surely, is that both occurred simultaneously. But that would have left the legal poser incapable of solution. So it was argued for Petit that Hales's felony of suicide occurred before his death, namely when he threw himself into the river, moments before his death. The argument for the widow was that the offence of suicide was not complete till the moment of his death. In the course of his submissions Serjeant Walsh for Petit argued:

"The act consists of three parts. The first is the imagination, which is a reflection or meditation of the mind, whether or not it is convenient for him to destroy himself, and what way it can be done; the second is the resolution, which is a determination of the mind to destroy itself; the third is the perfection, which is the execution of what the mind has resolved to do. And of all the parts, the doing of the act is the greatest in the judgment of our law, and it is in effect the whole. Then here the act done by Sir James Hales, which is evil, and the cause of his death, is the throwing himself into the water, and the death is but a sequel thereof".

continued on the next post...

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