Excusable homicide is se defendendo, or where one has no other possible means of preserving his own life than by killing the person who reduces him to such a necessity, for, Vim vi repellere licet, modo fiat moderamine inculpatæ tutelæ, non ad sumendam vindictam, sed ad propulsandam injuriam (I. Inst. 162a; Wood’s Inst., 2nd ed., 359).
It is said that it must be a killing upon an inevitable necessity; but necessity implies that the act was inevitable, or that it could not have been otherwise. The party assaulted is not to be excused, unless he gives back to the wall, hedge, river, &c., beyond which he cannot go, before he kills the other. But if A assault B so fiercely and violently, and in such a place, and in such a manner as, if B should give back, he should be in danger of his life, he may in this case defend himself, and if in that defence he killeth A, it is se defendendo, because it is not done felleo animo: for the rule is, when he doth it in his own defence, upon any inevitable cause, Quod quis ob tutelam corporis sui fecerit, jure id fecisse videtur (H. P. C. 41, 42; 3 Inst. 55, 56). What any one may have done for the protection of his person, is considered to have been done by law.
Enter two Clowns, with Spades, &c.
1 Clo. Is she to be buried in Christian burial, that wilfully seeks her own salvation?
2 Clo. I tell thee, she is; and therefore make her grave straight: the crowner hath sat 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 has three branches; it is, to act, to do, and to perform: argal, she drowned herself wittingly.
2 Clo. Nay, but hear you, goodman delver.
1 Clo. 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.
2 Clo. But is this law?
1 Clo. Ay, marry, is’t; crowner’s-quest law.
Hamlet, Act v. Scene 1.
It seems that Shakespeare has made the first clown confound a felo de se, or one who is guilty of self murder, with a person who commits homicide se defendendo, in his own defence, or, as he miscalls it, se offendendo; for, in answer to the second clown’s assurance that ‘the crowner hath sate on her and finds it Christian burial,’ he says, ‘How can that be, unless she drowned herself in her own defence?’ This is also apparent from his reasoning, which, although it may appear absurd, is good law; for he evidently means, that if the water comes to a man and drowns him, not wittingly, but against his inclination, he is as innocent of suicide as that man is innocent of murder, who, se defendendo, in his own defence, kills another who, felleo animo, presses upon him. And so the crowner found it ‘Christian burial;’ for although the ‘churlish priest’ tells Laertes that ‘her death was doubtful,’ yet the queen says—
And although, according to this account, the water cannot be said to come to Ophelia, it appears that she was drowned, not ‘wittingly,’ but against her inclination. Suicides were not entitled to what is called ‘Christian burial,’ for it was formerly the custom to drive a stake through the body of one who had been guilty of self-murder, and to bury it in the highway; but this brutal law and ignominious burial has been altered by the 4 Geo. IV. c. 52, which directs that a person felo de se shall be buried without any stake driven through the body, privately in a churchyard, within twenty-four hours from the finding of the inquisition, and between the hours of nine and twelve at night; but this statute does not authorise the performance of the rites of burial.
Injuria illata judici, seu locum tenenti regis, videtur ipsi regi illata, maxime si fiat in exercentem officium (3 Inst. 1).
Shakespeare in this passage probably refers to this maxim, or to the law which it describes. The Chief Justice says, ‘When I did use the person of your father, &c., you struck me in my very judgment seat, whereon as an offender to your father I did commit you,’ and according to this maxim, an injury offered to a judge, or one holding the place of the king, is considered to be offered to the king himself, especially if done in exercise of the office of a judge.
In the first part of ‘Shakespeare Illustrated by Old Authors,’ published in the year 1867, I quoted this maxim in illustration of this passage, beginning my comment with these words: ‘Shakespeare in this passage probably refers to this maxim or the law which it describes.’ The author of a book entitled ‘Shakespeare as a Lawyer’ quotes this passage and this maxim after saying, ‘Shakespeare, in the following passage from the second part of Henry IV., refers to this maxim or to the law which it describes,’ using the initial words of my comment. Without this explanation those who have read ‘Shakespeare as a Lawyer,’ and have not seen ‘Shakespeare Illustrated by Old Authors,’ may suppose that I, instead of originating this illustration, had adopted it without acknowledgment.
This method of appropriation and concealment extends to other books of mine. I give one more example of many. In ‘Shakespeare’s Euphuism,’ published in 1871, I showed that the advice of Euphues to Philatus was probably the origin of the advice of Polonius to Laertes, but a few years ago a ‘Life of Shakespeare’ was published by Smith, Elder and Co., in which are these words—‘In later life, Shakespeare in Hamlet borrows from Lyly’s “Euphues” Polonius’s advice to Laertes,’ and this statement is made without mentioning my name or my book, from which the information was obtained. This and much more inclines me to say with Falstaff—
I would to God my name were not so terrible to the enemy as it is.
2 Henry IV., Act i. Scene 2.
Puttenham in his ‘Second Book of Proportion Poetical,’ speaking of device or emblem, says—
‘The Greeks call it Emblema, the Italians Impresa, and we, a Device, such as a man may put into letters of gold and send to his mistresses for a token, or cause to be embroidered in Scutchions of arms on any bordure of a rich garment, to give by his novelty marvel to the beholder.’
To this impresa Shakespeare refers in Richard II., when Bolingbroke, addressing Bushby and Green, says—
The tearing of Bolingbroke’s household coat was actionable, according to the old maxim quoted by Coke, ‘Actio datur si quis arma, in aliquo loco posita, delevit seu abrasit’ (3 Institute, 202). In Pericles, ii. 2, Thaisa describes the devices on the shields of the six knights.
Sigillum est cera impressa, quia cera sine impressione non est sigillum (Co. 3 Institute, 169).
The wax without an impression would not be a seal. Hamlet subscribed the writ and also impressed the wax with his father’s signet. Crimen falsi dicitur, cum quis illicitus, cui non fuerit ad hæc data auctoritas, de sigillo regis rapto vel invento, brevia, cartasve consignaverit (Fleta).
Lear. No, they cannot touch me for coining; I am the king himself.
Lear, Act iv. Scene 6.
Monetandi jus comprehenditur in regalibus quæ nunquam a regio sceptro abdicantur (Dav. 18).
Shakespeare may here refer to this maxim, that the right of coining is comprehended in those regal rights which are never removed from the regal sceptre.
In this passage Shakespeare probably refers to the maxim, Civitas et urbs in hoc differunt quod incolæ dicuntur civitas, urbs vero complectitur ædificia (Mirror, cap. 2, sect. 18, Brit. fol. 87, Co. Litt. 109b). A city and a town differ in this, that the inhabitants are called the city, but the town comprises the buildings.
The wisdom of the law abhors that great offences should go unpunished, which was grounded without question upon these ancient maxims of law and state: Maleficia non debent remanere impunita, et impunitas continuum affectum tribuit delinquendi, et minatur innocentes qui parcit nocentibus (Co. Rep. iv. 45).
Crimes ought not to remain unpunished, and impunity offers a continual temptation to the delinquent.
Spes impunitatis continuum affectum tribuit delinquendi (3 Institute, 236).
Id perfectum est quod ex omnibus suis partibus constat; et nihil perfectum est dum aliquid restat agendum (9 Co. 9).
Fleance had escaped, therefore Macbeth was not perfect, because something remained to be done to make him—
‘Neither have judges,’ says Coke, ‘power to judge according to that which they think fit, but that which out of the laws they know to be right and consonant to law.’ Judex bonus nihil ex arbitrio suo faciat, nec proposito domesticæ voluntatis sed juxta leges et jura pronunciet (7 Co. Rep.).
According to this maxim a good judge may do nothing from his free choice or private will, but he must decide according to the laws, and King Henry says—
Angelo says—
And according to another maxim of the law of England, Justitia non novit patrem nec matrem, solam veritatem spectat justitia (I. Bulstrode, 199). Justice knows not father nor mother, justice looks at the truth alone.
Coke in his Third Institute, 105, considering how the value of a thing shall be construed, quotes the maxim, Tantum bona valent quantum vendi possunt; things are worth as much as they will sell for.
Shakespeare may here refer to two legal maxims, for one says, Rex est persona sacra et mixta cum sacerdote (5 Co. Eccl. L), and the other says, Reges dicuntur clerici (Dav. 4).
Non officit conatus nisi sequatur effectus (11 Co. 98). Attempt is the English of conatus, and deed may represent effectus.
Merito beneficium legis amittit, qui legem ipsam subvertere intendit (2 Inst. 53). According to Scicinius, Coriolanus had resisted law and therefore lost the benefit of the law.
Nemo præsumitur esse immemor suæ æternæ salutis, et maxime in articulo mortis (6 Co. 76).
Melun was in articulo mortis, and according to this maxim no one is presumed to be unmindful of his eternal welfare, and especially at the point of death.
Jurare est Deum in testem vocare, et est actus divini cultus (3 Inst. 165). Shakespeare evidently refers to this maxim, for to take the Highest to witness, est Deum in testem vocare.
‘If the Bishop makes a certificate, and dies before it is received, it is nothing worth, but his successor ought to certify it (F. N. B. 65, 8 E. 2, Excom. 26, 14 E. 3; ibid. 8). But note, reader, that in some cases the Vicar-general may certify an excommengement, that is when the Bishop is in remotis agendis, which is as much as to say, extra regnum, in the king’s service; but the Court will be apprized of it by matter of record, scil. by writ out of the Chancery directed to them, and not by the surmise of the party, and then for necessity (which is always the law of time, for necessitas est lex temporis) the certificate of the Vicar-general shall be allowed, because no other can make it’ (Co. Rep. viii. 69). In excuse for his going away Antony mentions the necessity of time, and it was the necessity of time which required and rendered valid the certificate of the Vicar-general.
In the books mentioned on the title-page of this small volume, in my contributions to the Berlin Society for the Study of Modern Languages, published in Archiv. f. n. Sprachen, and in Notes and Queries, I have called attention to Shakespeare’s knowledge of old law books, of the Real Property Law, the Common Law and the Lex Scripta, but I think the knowledge and correct application of legal maxims displayed in his works afford the strongest evidence I have yet produced that the great poet must have been, for some time, a student-at-law.
THE END
Printed by Ballantyne,
Hanson & Co.
Edinburgh & London