Sunday, June 5, 2011

Shakespeare a Lawyer? - 19b - Hamlet Gravedigger

Was Shake-Speare a lawyer?

Part 19 (2 of 2)

Valid Pointers to Shake-Speare being a Lawyer

4.  Hales v Petit and the Burial of Ophelia

continued from previous post:

Let us look now at the gravediggers' dialogue. The 1st gravedigger's comment "unless she drowned herself in her own defence" was intended by Shake-Speare to be a bit of humorous nonsense (though in fact there were some improbable situations in which self-defense could in law excuse suicide). There was a Latin phrase se defendendo, meaning "in defense of self". So the 1st gravedigger, who thought Ophelia drowned herself deliberately, retorts se offendendo - she offended against herself. Se offendendo was not a phrase used by lawyers, and Shake-Speare intended it as a humerous coinage.

We come now to the important lines: "if I drown myself wittingly, it argues an act, and an act hath three branches - it is to act, to do, to perform". This is plainly a parody of Serjeant Walsh's dictum "The act consists of three parts" etc. But the gravedigger misquotes it - which Shake-Speare intends to be funny. Probably only lawyers in the audience would recognise the allusion to Hales v Petit, but the rest could laugh at "it is to act, to do, to perform" as a piece of absurd tautology. Lines 15-20 echo nothing specific in Hales v Petit, where suicide was not disputed. But as the Arden editor comments: "It precisely mimics the typical legal argument. And in the grave digger's resounding conclusion about one who is not guilty of his own death we may find a parody of a decision [judgment] of one of the judges" [the editor then quotes it in part; I give a slightly fuller excerpt]: "Sir James Hales was dead, and how came he to his death? It may be answered, by drowning; and who drowned him? Sir James Hales; and when did he drown him?; in his lifetime. So that Sir James Hales being alive caused Sir James Hales to die; and the act of the living man was the death of the dead man. And then for this offense it is reasonable to punish the living man who committed the offense, and not the dead man".

Will Shakspere of Stratford may have heard of Plowden's Reports. Ben Jonson in his Every Man out of his Humour (1599) speaks of a copy of Plowden being put in pledge. But reading the reports was another matter, especially as they were in old French and had not been translated into English in Shakspere's lifetime. As Edmund Malone observed aptly: "Our author's study was probably not much encumbered with old French Reports". Stratfordians are driven to suggest that some lawyer friend must have told Shakspere of Hales v Petit and its arguments. The case was probably still notorious in the legal profession on account of its ridiculous hair-splitting. But there is nothing about Serjeant Walsh's dissection of an act into three parts which is not rational and accurate. The extract quoted above from one of the judgments is certainly funny, but it is rather a long passage to be related to Shakspere or remembered by him. An alternative suggestion is that Shakspere may have copied the dialogue from an earlier play, but there is no evidence of his having done so, and the dialogue has Shake-Speare's distinctive stamp.

Sir Dunbar Plunkett Barton in his Links between Shakespeare and the Law (1929), p. 10, wrote: "Notable law cases were recorded by stenographers and were circulated in pamphlet form. They became the subject of ballads and gossip in taverns". But if there was ever such a pamphlet about Hales v Petit, it would surely have circulated at the time of the case in the 1550's while it was still topical, and would have been unlikely to quote detailed passages from the arguments of Counsel or the judgments. The only remaining possibility is that Shakspere, when writing Hamlet, had an idea that there had been a case about suicide 50 years before and so made a point of reading it up. But the report of the arguments and judgments is long (nearly 12000 words) and complex. Shakspere would hardly have struggled through it in old French for the sake of a few lines of comic dialogue. Indeed one may wonder whether an author who was not a lawyer would have made the gravediggers discuss the law of suicide at all.


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