莎翁舞文弄法｜戴啟思
蘋果日報 2019/12/26 10:30
戴啟思專欄人物
Suicide, the Law and William Shakespeare
In February 1585 a twenty-year-old signed the birth register in the parish church of Stratford-on-Avon to record the birth of his twin children, Hamnet and Judith. The young father then disappears from all public and private records until 1592. At that date, a second-rate London playwright called Robert Greene attacks him for being an 'upstart crow' competitor who is pushily making his way in the world of popular theatre and making professional enemies along the way.
The new playwright is, of course, William Shakespeare. Books about him and his plays and poems would fill miles of library shelves. A fair few of the texts on those shelves are devoted to speculation about what happened in the 'Missing Years' between 1585 and 1592.
Some scholars believe Shakespeare took a teaching post with a Catholic family in Lancashire for a time Others think that there are grounds for saying he stayed in Stratford helping with the family business making gloves and leather items before he had to make himself scarce to avoid prosecution for poaching deer in a landowner's park. Some others say that he went for a soldier’s life and spent some time on the Continent.
Many scholars agree that, no matter how he spent those seven years, he must have studied Law or worked as a lawyer's clerk. They point to the many legal references in many of his plays. Two plays-'Measure for Measure' and 'The Merchant of Venice'-have plots that turn on legal processes and court trials that show a more than passing familiarity with what went on in a sixteenth-century court.
What clinches the argument for many is Shakespeare's accurate understanding of the details of, and legal reasoning in, a tragic court case that happened in 1552, twelve years before his birth in 1564. He used the case in what is perhaps his most famous play, 'Hamlet, Prince of Denmark'.
The court case concerned a senior judge, Sir James Hales. Sir James was born in 1500. He was a religious man and in his early-middle age followed the tenets of the reformed Church of England. He supported the earnest Protestant monarch, Edward VI, and prospered but came to grief when Mary, Edward's Catholic sister, succeeded to the throne in 1553. The new Archbishop of Canterbury imprisoned him for anti-Catholic leanings. When in custody he became depressed and tried to commit suicide with the aid of a penknife. As an act of mercy, Queen Mary ordered Hales to be released.
Sir James Hales was not a well man when he regained his freedom. A few months afterwards, he attempted suicide again, this time successfully, by lying face down in a shallow stream and drowning himself.
The Coroner held an inquest with a jury. Whereas many juries might have taken a charitable view of these sad events and found that Sir James had died by misfortune when his mind was disturbed, the jurors were Catholics, who remembered Sir James' anti-Catholic stance. Their unsympathetic verdict was that Sir James had deliberately killed himself.
There were legal consequences with a verdict of suicide which explained juries taking a generous view of the evidence. Because suicide was self-murder and murder was a characterised as a felony, the deceased's property stood forfeited to the Crown under the Law as was the case with all felonies.
Most felons were thieves and robbers. They did not usually possess property worth forfeiting. Sir John Hales was not in reduced circumstances. He owned a great deal of property, including some landed estates. Moreover, he had married and had a joint interest in some of the lands with his wife. Upon his death, Sir John's wife succeeded to his landed interest automatically by operation of the same Law that also recognised forfeiture of property for a felony.
A singular legal problem arose concerning Lady Hales' newly acquired survivorship interest in the land. It was this. Did the felony-the suicide-occur before Sir John's death or was the felony only completed when Sir John died?
This question sounds like the kind of nitpicking quibble that gives lawyers a bad name. However, a lot turned on finding the right answer.
It was because everyone accepted that the event giving rise to the forfeiture must have occurred in the felon’s lifetime. Dead people cannot commit felonies.
If the felony of suicide was only completed with the death of the suicide, then Sir John's joint interest in the property passed to his widow at the moment of his death. If that occurred, then the property could not be taken by the Crown.
Common sense tells you that Sir John's suicide and the passing of his interest in the land happened at the same time.
Common sense did not, however, answer the puzzle posed by the Law. The Law required an answer to decide on the crucial contingent property issue-the landed interest either went to Lady Hales or it passed to the Crown on Sir John's death. There was no room for a legal Schrödinger's cat where the property was both forfeited and not forfeited at the same time.
The winning argument went to forfeiture side. Counsel argued that Sir John's Hales's felony of suicide occurred before his death, namely when he threw himself into the river, just a few moments before he died.
The losing argument was this. Sir John's offence of suicide had begun when he was alive but was not completed until the moment of his death.
A lawyer called Plowden recorded the words of the successful counsel. They are a masterpiece of fine rhetoric commingled with persuasive but false logic.
"The act ［of suicide］ 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".
The facts and arguments of this case were known to Shakespeare. He re-arranged them in Hamlet and put the legal arguments in the mouths of two grave-diggers-called 'Clowns' in the play- who are digging the grave of Ophelia, the former girlfriend of Hamlet. She had drowned in a river in suspicious circumstances after Hamlet had rejected her love but, unlike the wretched Sir John Hales, the Coroner's jury did not find her death a suicide.
The two Clowns take the opposing arguments in Sir John Hales's case. The First Clown doubts that Ophelia fell into the river accidentally. The Second Clown support's the Coroner's ('crowner's') verdict that Ophelia's death was not a suicide.
The First Clown shows that he has missed his vocation and should have been lawyer although he would need to improve on his slightly rough Latin.
First Clown: Is she to be buried in Christian burial that wilfully seeks her own salvation?
Second Clown: I tell thee she is: and therefore make her grave straight: the crowner hath sat on her, and finds it Christian burial.
First Clown: How can that be, unless she drowned herself in her own defence?
Second Clown: Why, 'tis found so.
First Clown: 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.
Second Clown: Nay, but hear you, goodman delver,--
First Clown 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.
Second Clown: But is this Law?
First Clown: Ay, marry, is't; crowner's quest law.
If Shakespeare had turned his creative talents to the Law's study in earnest and become an advocate, then he would have been sure to have had a stellar career. Undeniable legal expertise combined with a way with the English language that will never be surpassed. How could he fail at the Bar? However, Mr Justice Shakespeare as the Law's gain would have been World Literature's loss. We should be thankful that he continued scribbling as an ‘upstart crow’.
－
About the author
Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.
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https://www.facebook.com/wondermedia.hk/
The new playwright is, of course, William Shakespeare. Books about him and his plays and poems would fill miles of library shelves. A fair few of the texts on those shelves are devoted to speculation about what happened in the 'Missing Years' between 1585 and 1592.
Some scholars believe Shakespeare took a teaching post with a Catholic family in Lancashire for a time Others think that there are grounds for saying he stayed in Stratford helping with the family business making gloves and leather items before he had to make himself scarce to avoid prosecution for poaching deer in a landowner's park. Some others say that he went for a soldier’s life and spent some time on the Continent.
Many scholars agree that, no matter how he spent those seven years, he must have studied Law or worked as a lawyer's clerk. They point to the many legal references in many of his plays. Two plays-'Measure for Measure' and 'The Merchant of Venice'-have plots that turn on legal processes and court trials that show a more than passing familiarity with what went on in a sixteenth-century court.
What clinches the argument for many is Shakespeare's accurate understanding of the details of, and legal reasoning in, a tragic court case that happened in 1552, twelve years before his birth in 1564. He used the case in what is perhaps his most famous play, 'Hamlet, Prince of Denmark'.
The court case concerned a senior judge, Sir James Hales. Sir James was born in 1500. He was a religious man and in his early-middle age followed the tenets of the reformed Church of England. He supported the earnest Protestant monarch, Edward VI, and prospered but came to grief when Mary, Edward's Catholic sister, succeeded to the throne in 1553. The new Archbishop of Canterbury imprisoned him for anti-Catholic leanings. When in custody he became depressed and tried to commit suicide with the aid of a penknife. As an act of mercy, Queen Mary ordered Hales to be released.
Sir James Hales was not a well man when he regained his freedom. A few months afterwards, he attempted suicide again, this time successfully, by lying face down in a shallow stream and drowning himself.
The Coroner held an inquest with a jury. Whereas many juries might have taken a charitable view of these sad events and found that Sir James had died by misfortune when his mind was disturbed, the jurors were Catholics, who remembered Sir James' anti-Catholic stance. Their unsympathetic verdict was that Sir James had deliberately killed himself.
There were legal consequences with a verdict of suicide which explained juries taking a generous view of the evidence. Because suicide was self-murder and murder was a characterised as a felony, the deceased's property stood forfeited to the Crown under the Law as was the case with all felonies.
Most felons were thieves and robbers. They did not usually possess property worth forfeiting. Sir John Hales was not in reduced circumstances. He owned a great deal of property, including some landed estates. Moreover, he had married and had a joint interest in some of the lands with his wife. Upon his death, Sir John's wife succeeded to his landed interest automatically by operation of the same Law that also recognised forfeiture of property for a felony.
A singular legal problem arose concerning Lady Hales' newly acquired survivorship interest in the land. It was this. Did the felony-the suicide-occur before Sir John's death or was the felony only completed when Sir John died?
This question sounds like the kind of nitpicking quibble that gives lawyers a bad name. However, a lot turned on finding the right answer.
It was because everyone accepted that the event giving rise to the forfeiture must have occurred in the felon’s lifetime. Dead people cannot commit felonies.
If the felony of suicide was only completed with the death of the suicide, then Sir John's joint interest in the property passed to his widow at the moment of his death. If that occurred, then the property could not be taken by the Crown.
Common sense tells you that Sir John's suicide and the passing of his interest in the land happened at the same time.
Common sense did not, however, answer the puzzle posed by the Law. The Law required an answer to decide on the crucial contingent property issue-the landed interest either went to Lady Hales or it passed to the Crown on Sir John's death. There was no room for a legal Schrödinger's cat where the property was both forfeited and not forfeited at the same time.
The winning argument went to forfeiture side. Counsel argued that Sir John's Hales's felony of suicide occurred before his death, namely when he threw himself into the river, just a few moments before he died.
The losing argument was this. Sir John's offence of suicide had begun when he was alive but was not completed until the moment of his death.
A lawyer called Plowden recorded the words of the successful counsel. They are a masterpiece of fine rhetoric commingled with persuasive but false logic.
"The act ［of suicide］ 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".
The facts and arguments of this case were known to Shakespeare. He re-arranged them in Hamlet and put the legal arguments in the mouths of two grave-diggers-called 'Clowns' in the play- who are digging the grave of Ophelia, the former girlfriend of Hamlet. She had drowned in a river in suspicious circumstances after Hamlet had rejected her love but, unlike the wretched Sir John Hales, the Coroner's jury did not find her death a suicide.
The two Clowns take the opposing arguments in Sir John Hales's case. The First Clown doubts that Ophelia fell into the river accidentally. The Second Clown support's the Coroner's ('crowner's') verdict that Ophelia's death was not a suicide.
The First Clown shows that he has missed his vocation and should have been lawyer although he would need to improve on his slightly rough Latin.
First Clown: Is she to be buried in Christian burial that wilfully seeks her own salvation?
Second Clown: I tell thee she is: and therefore make her grave straight: the crowner hath sat on her, and finds it Christian burial.
First Clown: How can that be, unless she drowned herself in her own defence?
Second Clown: Why, 'tis found so.
First Clown: 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.
Second Clown: Nay, but hear you, goodman delver,--
First Clown 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.
Second Clown: But is this Law?
First Clown: Ay, marry, is't; crowner's quest law.
If Shakespeare had turned his creative talents to the Law's study in earnest and become an advocate, then he would have been sure to have had a stellar career. Undeniable legal expertise combined with a way with the English language that will never be surpassed. How could he fail at the Bar? However, Mr Justice Shakespeare as the Law's gain would have been World Literature's loss. We should be thankful that he continued scribbling as an ‘upstart crow’.
－
About the author
Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.
探索驚奇精彩的 wONdEr 故事，請LIKE 我們的Facebook Page，並設定為「搶先看」：
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