The Clowns and Hamlet - a mystery resolved

POP1

There's this scene in Hamlet that we know is supposed to be funny because it's got two clowns talking, but it's not that funny.  Apparently, we must be  missing something because Shakespeare's audience found it funny.  So what are we missing?

Here's the scene.  Act 5,  Scene 1.  Ophelia has drowned herself.

Enter two Clowns, with spades, & c

First Clown

          
          Is she to be buried in Christian burial that

          willfully seeks her own salvation?

Second Clown

           I tell thee she is: and therefore make her grave

           straight: the crowner (coroner) 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; 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; 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.

Second Clown

          Will you ha' the truth on't?  If this had not been
           a gentle woman, she should have been buried out o'
           Christian burial.

POP2

So what's happening here? -

Ophelia has committed suicide and the clowns are discussing whether she is entitled to a Christian burial.

The first joke is the suggestion that it wasn't suicide if she killed herself in self defense - not much of a defense if you kill yourself to prevent yourself being killed.

Next, the same clown argues that an act has three branches; namely to act, to do and to perform, which by the way are synonyms, therefore not three branches but one branch; (that's the next joke.)

He then argues that, because an act has these three branches, Ophelia acted wilfully and is therefore guilty of  suicide.  It makes no sense.......unless you know the rest of the story.

His conclusion is that a man who "is not guilty of his own death shortens not his own life" - which is an absurd tautology that makes no sense.

POP3

So what's the rest of the story?

The dialogue comes straight out of the law case Hales v. Petit, recorded by Plowden in 1571, (which is some thirty-five years before Hamlet was written.) 

In the reign of Mary Tudor Sir James Hale drowned himself. The verdict was suicide.  His body was to be buried in a crossroads and his lands to be forfeited to the Crown.  His wife Margaret would get nothing. The estate was given by the crown to Cyriac Petit.  Margaret Hale sued to recover the lands from Petit.

POP4

The case hinged on this question - is the crime of suicide committed when James Hales is still alive, in other words when he's falling through the air into the water but not yet dead (in which case he would forfeit his estate), or does it become suicide only after he has died (which would mean his wife, by right of survivorship would inherit his estate at the instant of his death, precluding any forfeiture.)

POP5

Council for the wife argued that the felony of suicide consists of two parts; first the cause of death (throwing himself into the water), and secondly the death that ensues.  Until both are completed there is no felony, and by the time death has completed the felony, the right of survivorship shall have kicked in.

POP6

Council for Petit argued that "The act consists of three parts" - remember the clowns. First there is the conceiving the notion to kill yourself, secondly the decision to proceed, and thirdly the execution of what the mind has resolved to do.   Throwing himself into the water was the felonious act and the death "but a sequel thereof."

POP7

The Lord Chief Justice gave judgement for Petit:

        "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 for forfeiture."

Mrs Hales' brave but hopeless battle still resonates after all these centuries; a very strong-willed woman, but one can't help but wonder if she was not a contributing cause of her husband throwing himself into the water.

POP8

Plowden's Reports, in which the case of Hales v. Petit was recorded, were not written in English.  They were written in Norman French, or law French, an uncommon technical language restricted to lawyers, judges, and law students.  They were not translated in Shakespeare's time.  So this passage possibly constitutes evidence that Shakespeare read Law French, as students of law would have had to.  Of course he could have had friends who were proficient in Law French, so we can't be too free with our conclusions.

On the other hand the case of 'Hale v. Petit' may have been well known to the the populace at large due to its iconic nature.