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PART ONE - Ecclesiastical Law in Hamlet

IT would seem at this late day that all that could be said about the play of Hamlet has been said and often repeated. I now claim the honor of being the first discoverer and announcer of the fact that in Hamlet can be found allusions and statements showing the most thorough and complete knowledge of the canon and statute law of England, relating to the burial of suicides that has ever been written.

In pointing out the law in Hamlet, the dialogue in the grave-diggers' scene is always discussed by writers, but even in that they do not any of them note all the law that is in it, and I will now show that it is not confined entirely to the parallels in the famous case of Hales v. Petit, from which some of the arguments are unquestionably taken.

No law writer has yet stated the English law relating to suicides so completely as is done in Hamlet. I have mentioned this fact in my recently published "History of the Penal Laws against Suicides," but as all the parallels and allusions contained in the play were not there pointed out, I will now attempt to fully give them.

Shakespeare has accurately stated the laws of the Church and of the Statutes in England, at the time he wrote, and not the laws of Denmark, in Hamlet's time.

Hamlet, King of Denmark, lived about A. D. 700, and Christianity was not introduced in Denmark until about A. D. 827, by Harold. So the laws of the Christian Church of England were referred to, and not the laws of Denmark, in the time of Shakespeare.

The established Church, in Denmark, is Lutheran, and has been such since 1536.

The plot of Hamlet is derived from "Saxo Grammaticus' History of Denmark," and was used in novels before Shakespeare's time. It was first used as a play in 1589, said to have been written by Shakespeare and Marlowe, but no copy of it as then represented is now known. It is mentioned by contemporary writers. That which is now known as Shakespeare's Hamlet was written about 1597, and published about 1600. It was entered in Stationer's Hall for copyright by James Roberts, on July 26th, 1602, under the title of " The Revenge of Hamlett, Prince of Denmarke." The edition published in 1603, like those previously printed, is one that I particularly call attention to as not containing any of the fine descriptive points relating to the death and burial of Ophelia. It was little more than merely alluded to. The gravediggers' dialogue and the burial of Ophelia, in the 5th Act, was afterwards revised and inserted in the edition of 1604, and is the same as is now in common use.

The entire play was so revised and altered to such an extent as to make the edition of 1604 a rewritten play.

Queen Elizabeth died March 23, 1603, so the Hamlet of to-day was written under the reign of King James I. In this connection it is important to note the effect that this might have had upon the forms then used by the English Church in burials, and might have caused a change in this description of the burial of Ophelia.

The three kinds of burials given suicides in the church yard are shown -- one by the gravedigger, as was customary in some parts of England and Wales, where the grave was "out of the sanctuary" and not "straight," that is, east and west, and another was by Christian burial by the priest, when it was in the parish church-yard, and the other was by the coroner when not at cross roads, marked by a stake where stones, &c., were thrown at it. Blackstone only mentions the burial of suicides at cross roads, and law students are led to believe that the law was the same over all England and Wales in that particular. It was only a legal custom and did not prevail generally.

The case of the suicide of Sir James Hales, and the legal effect thereof, is the first one reported as adjudicated upon by the Courts, as to the question of forfeiture of the property of a suicide as a felony (Hales v. Petit Plowden, 253). Sir James Hales was a Judge of Common Pleas and a Protestant. In the reign of Queen Mary he was removed and imprisoned in the Fleet and other places, and was otherwise persecuted, so that he became melancholy. He attempted suicide by stabbing himself, but failed to accomplish his design. He was released from close confinement, and seeing the cruel persecutions of other Protestants by the Queen, and fearing that he was about to be again seized, he at last drowned himself. The coroner's jury (being Roman Catholic) very unjustly found that he was sane at the time, and therefore his personal estate, which was valuable, was forfeited to the Queen. The case of Hales v. Petit arose out of this.

The parallel between the arguments presented in that case and those given in the grave-diggers' dialogue, as to suicide by drowning, are so striking that there can be no question that the writer was familiar with the report of the law case.

Literal extracts from the reported case are as follows:

Serjeant Walsh argued that the act of suicide consisted of three parts.

(1.) 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.

(2.) The resolution, which is a determination of the mind to destroy himself, and to do it in that particular way.

(3.) The perfection, which is the execution of what the mind has resolved to do. And this perfection consists of two parts, viz: the beginning and the end.

Lord Brown, of the Court, said:

"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 life time. 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 offence it is reasonable to punish the living man who committed the offence, and not the dead man. But how can he be said to be punished alive when the punishment comes after his death."

Lord Chief Justice Dyer said among the things to be considered were:

"(1.) The quality of the offence of Sir James Hales.

"(2.) To whom the offence is committed.

"(3.) What shall he forfeit? Under this point the Court said he is adjudged none of the members of holy church if he drowned himself.

"Wherefore all the Justices agreed that the forfeiture of the goods and chattels real and personal of Sir James Hales shall have relation to the act done in his life-time, which was the cause of his death, viz: the throwing himself into the water."

The grave diggers' dialogue on suicide is as follows:


1ST GRAVE D. -- Is she to be buried in Christian burial that wilfully seeks her own salvation?

2D GRAVE D. -- I tell thee she is; therefore make her grave straight; the crowner hath set on her, and finds it christian burial.

1ST GRAVE D. -- How can that be, unless she drowned herself in her own defense?

2D GRAVE D. -- Why, tis found so.

1ST GRAVE D. -- 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, she drowned herself wittingly.

2D GRAVE D. -- Nay, but hear you, goodman delver.

1ST GRAVE D. -- 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, and drown him, he drowns not himself. Argal, he that is not guilty of his own death, shortens not his own life.

2D GRAVE D. -- But is this law?

1ST GRAVE D. -- Ay, marry is't, crowner's 'quest law.

2D GRAVE D. -- Will you ha' the truth on't? If this had not been a gentlewoman, she should have been buried out of christian burial.

This scene in the edition of 1603 is as follows:

1ST GRAVE D. -- I say no, she ought not to be buried in Christian burial.

2D GRAVE D. -- Why, sir.

1ST GRAVE D. -- Mary, because she's drowned.

2D GRAVE D. -- But did she not drown herself?

1ST GRAVE D. -- No, that's certain the water drown her.

2D GRAVE D. -- Yea, but it was against her will.

1ST GRAVE D. -- No, I deny that, for look you, sir, I stand here, if the water came to me I drown not myself. But if I go to the water I am there drowned. Ergo, I am guilty of my own death.
Y'are gone, y'are gone, sir.

2D GRAVE D. -- I but see, she hath Christian burial, because she is a great woman.

1ST GRAVE D. -- Mary, more's the pity, that great folks should have more authorization to hang or drown themselves, more than other people.

1ST GRAVE D. -- Why, there thou say'st; and the more pity, that great folks should have countenance in this world to drown or hang themselves, more than their even Christian." [sic]

The grave was to be made "straight," that is, it was to be made East and West, for Christian burial, but in cases of those who had not Christian burial the grave was North and South, as before stated.

It is true that the burial is represented as taking place in Denmark, as the King and Queen and Courtiers were present, but still the burial was according to the laws of England and the Established Episcopal Church, and not the Roman Catholic burial rites, as they and all other dissenting church ceremonies were not allowed to be used in any parish churchyard in England after the Reformation and the establishment of the Episcopal Church.


* A plea of justifiable homicide or self defence. back

† Mary was a profane word, used in the same way that God and some other sacred names are still profanely used. back

As to the law of Denmark relating to the burial of suicides see post. last note, Part Five. back

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