Notes and Queries, Number 197, August 6, 1853 | Page 8

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.
THOMAS FALCONER.
Temple.
Shakspeare Suggestion.--
"These sweet thoughts do even refresh my labours; Most busy--less when I do it." Tempest, Act