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Her counsel, Serjeants Southcote and Puttrel, powerfully argued that, the offence of suicide being the killing of a man's self, it could not be completed in his lifetime, for as long as he was alive he had not killed himself, and, the moment that he died, the estate vested in the plaintiff. “ The felony of the husband shall not take away her title by survivorship, for in this manner of felony two things are to be considered—first, the cause of the death ; secondly, the death ensuing the cause ; and these two make the felony, and without both of them the felony is not consummate. And the cause of the death is the act done in the party's lifetime, which makes the death to follow. And the act which brought on the death here was the throwing himself voluntarily into the water, for this was the cause of his death. And if a man kills himself by a wound which he gives himself with a knife, or if he hangs himself, as the wound or the hanging, which is the act done in the party's lifetime, is the cause of his death, so is the throwing himself into the water here. Forasmuch as he cannot be attainted of his own death, because he is dead before there is any time to attaint him, the finding of his death by the Coroner is by necessity of law equivalent to an attainder in fact coming after his death. He cannot be felo de se till the death is fully consummate, and the death precedes the felony and the forfeiture.”
Walsh, Serjeant, contra, argued that the felony was to be referred back to the act which caused the death. “ 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 himself; the third is the perfection, which is the execution of what the mind had 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."
Lord C. J. Dyer and the whole court gave judgment for the defendant, holding that although Sir James Hales could hardly be said to have killed himself in his lifetime, “ the forfeiture shall have relation to the act done by Sir James Hales in his lifetime, which was the cause of his death, viz., the throwing himself into the water.” Said they, “Sir James Hales was dead, and how came he to his death ? 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. He therefore committed felony in his lifetime, although there was no possibility of the forfeiture being found in his lifetime, for until his death there was no cause of forfeiture.”
The argument of the gravediggers upon Ophelia's case is almost in the words reported by Plowden :
1 Clo. Is she to be buried in Christian burial, that wilfully seeks her own salvation ?
2 Clo. The crowner hath sate on her, and finds it Christian burial.
1 Clo. How can that be, unless she drowned herself in her own defence ?
2 Clo. Why, 'tis found so.
1 Clo. 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, and to perform. Argal she drowned herself wittingly. * * * 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. Aryal he that is not guilty of his own death shortens not his own life
2 Clo. But is this law ?
Hamlet's own speech, on taking in his hand what he supposed might be the skull of a lawyer, abounds with lawyer-like thoughts and words :
“Where be his quiddits now, his quillets, his cases, his tenures, and his tricks ? Why does he suffer this rude knave now to knock him about the sconce with a dirty shovel, and will not tell him of his action of battery? Humph! This fellow might be in's time a great buyer of land, with his statutes, his recognizances, his fines, his double vouchers, his recoveries : is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dirt? will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures ?”
These terms of art are all used seemingly with a full knowledge of their import; and it would puzzle some practising barristers with whom I am acquainted to go over the whole seriatim, and to define each of them satisfactorily.
In perusing this unrivalled tragedy I am so carried away by the intense interest which it excites, that I fear I may have passed over legal phrases and allusions which I ought to have noticed; but the only passage I find with the juridical mark upon it in · Macbeth' is in Act Iv. Sc. 1, where, the hero exulting in the assurance from the Weird Sisters that he can receive harm from “ none of woman born,” he, rather in a lawyer-like manner, resolves to provide an indemnity, if the worst should come to the worst,
“But yet I'll make assurance double sure,
And take a bond of fate ;"
—without much considering what should be the penalty of the bond, or how he was to enforce the remedy, if the condition should be broken.
He, immediately after, goes on in the same legal jargon to say,—
- our high-plac'd Macbeth Shall live the lease of nature.”
But, unluckily for Macbeth, the lease contained no covenants for title or quiet enjoyment :—there were likewise forfeitures to be incurred by the tenant,—with a clause of re-entry,—and consequently he was speedily ousted. *
In the very first scene of this play there is a striking instance of Shakespeare's proneness to legal phraseology :-where Iago, giving an explanation to Roderigo of the manner in which he had been disappointed in not obtaining the place of Othello's lieutenant, notwithstanding the solicitations in his favour of “ three great ones of the city,” says
* The lease frequently presents itself to Shakespeare's mind, as in ‘Richard III.,' Act iv. Sc. 4
Tell me what state, what dignity, what honour,
This is as clear a reference to leasing, as if he had said in full, “ demise, lease, grant and to farm let.”