Birmingham.
_The Case referred to by Shakspeare in Hamlet_ (Vol. vii., p. 550.).--
"If the water come to the man."--_Shakspeare._
The argument Shakspeare referred to was that contained in Plowden's Report
of the case of Hales _v._ Petit, heard in the Court of Common Pleas in the
fifth year of the reign of Queen Elizabeth. It was held that though the
wife of Sir James Hale, whose husband was _felo-de-se_, became by
survivorship the holder of a joint term for years, yet, on office found, it
should be forfeited on account of the act of the deceased husband. The
learned serjeants who were counsel for the defendant, alleged that the
forfeiture should have relation to the act done in the party's lifetime,
which was the cause of his death. "And upon this," they said, "the parts of
the act are to be considered." And Serjeant Walsh said:
"The act consists of three parts. The first is the imagination, which
is a reflection or meditation of the mind, whether or no it is
convenient for him to destroy himself, and what way it can be done. The
second is the resolution, which is the determination of the mind to
destroy himself, and to do it in this or that particular way. The third
is 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. The beginning is the doing of the act which causes the
death; and the end is the death, which is only the sequel to the act.
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 and the only part
the law looks upon to be material. For the imagination of the mind to
do wrong, without an act done, is not punishable in our law; neither is
the resolution to do that wrong which he does not, punishable; but the
doing of the act is the only point the law regards, for until the act
is done it cannot be an offence to the world, and when the act is done
it is punishable. Then, here, the act done by Sir James Hale, which is
evil and the cause of his death, is the throwing of himself into the
water, and death is but a sequel thereof, and this evil act ought some
way to be punished. And if the forfeiture shall not have relation to
the doing of the act, then the act shall not be punished at all, for
inasmuch as the person who did the act is dead, his person cannot be
punished, and therefore there is no way else to punish him but by the
forfeiture of those things which were his own at the time of the act
done; and the act was done in his lifetime, and therefore the
forfeiture shall have relation to his lifetime, namely, to that time of
his life in which he did the act which took away his life."
And the judges, viz. Weston, Anthony Brown, and Lord Dyer, said:
"That the forfeiture shall have relation to the time of the original
offence committed, which was the cause of the death, and that was, the
throwing himself into the water, which was done in his lifetime, and
this act was felony."----"So that the felony is attributed to the act,
which act is always done by a living man and in his lifetime," as Brown
said; for he said, "Sir James Hale was dead, and how came he to his
death? It may be answered, By drowning. And who drowned him? Sir James
Hale. And when did he drown him? In his lifetime. So that Sir James
Hale being alive, caused Sir James Hale 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? Sir, this can be done no other way
but by devesting out of him, from the time of the act done in his life,
which was the cause of his death, the title and property of those
things which he had in his lifetime."
The above extract is long, but the work from which it is taken can be
accessible to but very few {124} of your readers. Let them not, however,
while they smile at the arguments, infer that those who took part in them
were not deservedly among the most learned and eminent of our ancient
judges.