Shakespeare as Lawyer Hamlet: Death, Property, and the Pursuit of Justice

Thomas Regnier*

Abstract: This essay, by distinguished American legal scholar Thomas Regnier, looks at the extraordinary knowledge of the law that Shakespeare—whoever he was—displayed in numerous plays, especially Hamlet. Originally published in the academic journal Brief Chronicles (2011: Vol. III) and edited here for length with Mr. Regnier’s permission, it is argued that Shakespeare’s knowledge of law was not only profound and professional but also far beyond anything that could be picked up casually by a writer simply doing research.

Keywords: Shakespeare, Authorship Question, Hamlet, Hamlet and the law.

Hamlet is not, on its face, a “legal” play in the way that Merchant of Venice and Measure for Measure are legal plays. It has no trial scenes, no discourses on the purposes of law and punishment, and no critique, as such, of the legal system. But a closer look at the play shows that legal issues are integrated into the fabric of the drama at key points. The subtlety and accuracy of the law in Hamlet suggest that its author had sophisticated legal training of the sort that comes from formal study, not casual conversation. This casts doubt on the traditional theory that the man from Stratford wrote the plays of the Shakespeare canon.

As well as analyzing the law in Hamlet, this article will consider how the evidence of legal knowledge in the play impacts the hypothesis, believed by many, that Edward de Vere, the 17th Earl of Oxford, was the real genius behind Shakespeare’s plays.^[1] We know that de Vere studied law from an early age with his tutor, Sir Thomas Smith. De Vere also enrolled at the Inns of Court—Gray’s Inn, to be precise—where the common law of England was taught. Of course, evidence of legal knowledge in Shakespeare’s plays does not prove that Oxford wrote the plays. Many noblemen of his day studied at the Inns of Court; and others, such as Francis Bacon, were greater legal minds than Oxford was likely to have been.

But Hamlet contains legal issues that parallel watershed events in Oxford’s life, particularly events that concerned homicide and property law. This article briefly explores aspects of law in Hamlet: ecclesiastical law, law of homicide, property law and, more generally, law as an instrument of justice and revenge, and notes some of the parallels to legal issues that directly involved de Vere during his life.

I. Ecclesiastical Law: Ophelia’s “Maimed Rites”

R.S. Guernsey wrote in 1885 that Hamlet showed “the most thorough and complete knowledge of the [ecclesiastical] and statute law of England, relating to the burial of suicides that has ever been written.”^[2] The alert reader may well respond, “What does the law of England, whether ecclesiastical or statutory, have to do with Hamlet, which takes place in Denmark?”

Hamlet showed “the most thorough and complete knowledge of the [ecclesiastical] and statute law of England, relating to the burial of suicides that has ever been written,” according to Guernsey

The answer for Hamlet is the same as for all of Shakespeare’s plays: English law permeates the plays, even those set in foreign countries. The law of the foreign setting may be a factor in some plays, but most of the legal rules and jargon are from English law. This is the law with which Shakespeare’s audience, whether nobility or common folk, would have been most familiar.

I.A. Law of Suicide

Guernsey argued that Hamlet reflected the English law regarding suicides at the time of its writing, rather than the laws in Denmark at the time of the historical Hamlet’s life (about 700 CE, before Christianity was introduced in Denmark). Understanding the law of suicide is crucial to understanding the controversy regarding Ophelia’s burial rites. “Her death was doubtful” (5.1.182),^[3] as the priest tells Laertes, by which he means it is questionable whether Ophelia’s death was an accident or a suicide. This doubt created some thorny legal issues because of the tension that existed between statutory law and ecclesiastical law regarding suicides, especially when insanity was a factor.

Ophelia’s death was “doubtful” because, once she fell into the brook, she appears to have made no attempt to save herself. Instead, she “chanted snatches of old lauds [hymns], / As one incapable of her own distress” (4.7.182–3). This behavior is consistent with Ophelia’s having gone to the brook intending to kill herself. But given what the audience has already seen of Ophelia’s madness, insanity is the more likely explanation of her inaction.

I.B. Ecclesiastical Law versus Statutory Law

Under ecclesiastical law, a person who voluntarily caused her own death was not entitled to Christian burial, even if she were insane. The secular law, however, had by Shakespeare’s time developed a more nuanced understanding of voluntariness: an insane person could not, by definition, voluntarily kill herself because her mind was too disturbed for her to make any decision for which she could be held responsible. If the coroner, the official of the Crown who presided over the inquest, found that the deceased had been insane at the time of her death, then she could not have killed herself voluntarily and her death was, therefore, not a suicide.

The Church would grudgingly accept the coroner’s verdict and give Christian burial rites to the deceased—but only in the parish churchyard. Even so, the parish priest, who was the legal holder of the church lands, could decide where in the cemetery the deceased would be buried. Suspected suicides were often buried at the fringes of the churchyard.

“Hamlet and the Gravedigger”, an 1883 painting by Pascal
Dagnan-Bouveret

I.C. “Make Her Grave Straight”

As Guernsey explains, those who received Christian burial were buried with their bodies lying along a “straight,” or east–west axis, the same alignment on which the church itself stood. The head was to the west, the feet to the east. Any other positioning, such as north–south, indicated that the deceased person was not entitled to the full rites of Christian burial.^[4] Such “crooked” burials in unconsecrated ground went to stillborn infants and excommunicated persons, as well as to suicides.

Thus, when one gravedigger tells the other at the beginning of Act 5, “make her grave straight. The crowner hath sat on her, and finds it Christian burial” (5.1.3), he is telling the other to dig the grave east–west.^[5] The thrust of the statement is that the coroner has ruled Ophelia’s death involuntary, probably due to insanity, and that she therefore receives basic Christian rites.

If the coroner were to determine, however, that a person was sane at the time of the suicide (a rare finding), the deceased’s personal property was forfeit to the Crown, and the coroner, rather than a priest, buried the body, often at a crossroads.

I.D. “What Ceremony Else?”

When Hamlet first sees a funeral procession in the churchyard, not knowing that it is Ophelia’s funeral, he immediately recognizes the “maimed rites” and their significance: “This doth betoken / Thecorse [corpse] they follow did with desperate hand / Fordo its own life” (5.1.175–6). After an apparently perfunctory service by the priest, Laertes asks, “What ceremony else?” (5.1.180). The priest’s response encapsulates the compromise between secular and holy law:

Her obsequies have been as far enlarged
As we have warranty. Her death was doubtful,
And but that great command o’ersways the order,
She should in ground unsanctified been lodged
Till the last trumpet. . . .
(5.1.181–5).

The “great command” is the statutory law of England, which recognized the monarch as the head of the Church. It also bound the priest to abide by the coroner’s verdict that Ophelia be accorded Christian burial. Thus, we know from the text that Ophelia’s burial included some of the features of a full Christian burial, namely, an east–west (“straight”) grave in consecrated ground.

But Guernsey notes that the funeral left out such optional trappings as torch bearers, cross bearer, sprinkling of holy water, singing of psalms or hymns, blessing, smoking censer, and Eucharist (Holy Communion, or Lord’s Supper).^[6] The omission of so many potentially available signs of respect toward the deceased would naturally seem an insult to the mourning Laertes.

The priest goes on to hint that Laertes should be thankful that the “great command” has done as much as it has for Ophelia. Without it, “for charitable prayers, / Shards, flints, and pebbles, should be thrown on her” (5.1.185–6). Guernsey explains that this was a reference to the custom in some parts of England (derived from heathen Teutons’ method of executing criminals) of burying suicides at crossroads, driving a stake through the body, and allowing passersby to throw stones and flints at the stake.

The priest reminds Laertes that the Church has allowed the strewing of flowers for Ophelia and the use of garlands (a token of virginity). The priest has, as Guernsey says, “fulfilled the letter of the law, and rung the bell [a required part of the Christian ceremony, even for doubtful deaths] and . . . given her an honorable place of burial and a straight grave.”^[7]

In other words, Ophelia received the bare minimum of Christian burial rites. Shakespeare’s use of a few key phrases—“make her grave straight,” “Christian burial,” “maimed rites,” “What ceremony else?,” “Her death was doubtful,” “great command,” “ground unsanctified”—shows that he perfectly understood the tension between statutory law and ecclesiastical law regarding the burial of suicides.

II. Law of Homicide: “King’s Lawful Subject” versus “Malice Aforethought”

Thomas Glyn Watkin’s 1984 article, “Hamlet and the Law of Homicide,” explores the law governing the many homicides in the play.^[8] Once again, English law rules. Watkin notes that homicide law in Shakespeare’s time had undergone a transformation since medieval times. Stated simply, medieval law focused on the legal status of the victim; the more modern view focused on the state of mind of the accused killer.

II.A. Law of Homicide: The Old Rule

Watkin explains that, under the medieval system, it was no crime to kill felons who fled or resisted arrest, prisoners who assaulted their jailers, highway robbers, burglars who broke into one’s house at night or members of an unlawful assembly who resisted a justice of the peace’s order to disperse. The common denominator of all these victims is that none was “the King’s lawful subject.” By their actions they had forfeited the law’s protection; therefore, killing them was not a crime.

The medieval system meant that an accidental killing, however, usually was a crime. If one were chopping down a tree and an innocent victim happened to walk nearby and be killed by the falling tree, the woodcutter would be prosecuted. The dead person had done nothing to take himself outside the law’s protection, so he was still the king’s lawful subject and killing him was a crime.

Even more perplexing to the modern mind is that, under the old system, killing in self-defense during a sudden brawl was not protected under the law—even if one refrained from killing until his back was to the wall and he had no choice. Why, one might reasonably ask, would it be lawful for a citizen to kill the burglar who breaks into his home, but not the public brawler who means to kill the citizen?

The answer is that the brawler has not yet committed a crime. Because he has not forfeited the law’s protection, he is still the king’s lawful subject. Additionally, the law assumed that when a quarrel arose, both parties must be at fault to some degree. A person found to have killed in self-defense, however, could seek, and would usually obtain, a pardon from the king, as provided by the Statute of Gloucester of 1278;^[9] but he had to forfeit his goods to the Crown for depriving the king of one of his lawful subjects.

A burglar, on the other hand, has already committed a crime by breaking into one’s home and has thereby lost the law’s protection. Killing the burglar was a lawful act even if he had not yet injured anyone or stolen any goods.

II.B. Law of Homicide: The New Rule

By Shakespeare’s time, homicide law had gone through a series of gradual changes so that the legal analysis focused on the killer’s state of mind, or mens rea, rather than the victim’s legal status. In the seventeenth century, legal scholars, such as Sir Edward Coke (pronounced “Cook”), began to articulate the new state of the common law as it had evolved.

The new definition of murder was best expressed by Coke in his Third Institute, published in 1641: “Murder is when a man . . . unlawfully killeth . . . with malice fore-thought, either expressed by the party, or implied by law. . . .”^[10] Coke’s definition brilliantly captured the change in the law: the focus was no longer on the victim, but on the defendant; not merely on physical acts, but on the intentions behind them. Indeed, one of the great advances of modern law over medieval law has been modern law’s consideration of a defendant’s intentions as well as his actions.

When Coke said in his definition that “malice fore-thought” (or “malice aforethought,” as it is more commonly termed) could be expressed by the party or implied by law, he meant that the killer could state his intentions or the law could infer intent based on his actions. For example, malice aforethought was assumed in willful poisoning cases^[11] and incidents of stabbing a victim who had no weapon drawn or had not struck first.^[12]

Watkin argues that Shakespeare, who wove the theme of the deceptiveness of appearances into Hamlet (“That one may smile, and smile, and be a villain” [1.5.108]), found such legal shortcuts too superficial. As the play demonstrates, a smooth assassin like Claudius or a creative actor like Hamlet could get away with murder, at least for a while, by disguising his intentions.

The new understanding of murder meant that killings in self-defense or by accident were no longer crimes because the killer had no malicious intent. By the time of Coke’s writing in the 1600s, juries who found that the defendant had killed in self-defense could simply acquit, and pardon from the king was no longer necessary. Insanity became a complete defense to murder because, as discussed earlier in regard to suicide, an insane person was incapable of forming an intent for which he could be held responsible.

One might say that murder and manslaughter were distinguished by their hotness or coldness. Murder involved “cold” blood, the murderer having had time to reflect on his action; the punishment was death. Manslaughter was a sudden killing driven by “the heat of the blood kindled by ire,” as Coke said.^[13] Manslaughter was punished by imprisonment for up to a year and branding of the thumb.

Watkin’s article goes on to examine each of the killings in Hamlet in light of the changes in the law, demonstrating that Shakespeare had a keen appreciation of the subtleties of the law of homicide as it had developed in his time. This article summarizes several of Watkin’s analyses.

II.C. Hamlet’s Feigned Madness

Let us look at Hamlet’s “antic disposition” (1.5.172), his feigning madness. Why would he pretend to be insane? In Saxo Grammaticus’s Amleth, one of Shakespeare’s sources for the Hamlet plot, the young protagonist pretends to be a simpleton in order to appear harmless while he plots his revenge against his uncle.^[14] This may be a part of the strategy of Shakespeare’s Hamlet, but Hamlet also reaps legal benefits from his charade—benefits that accrue because of the new state of the law. After all, insanity was a complete defense to murder. By feigning madness, Hamlet would escape all punishment, even forfeiture of goods, for the planned murder of his uncle.

Although Hamlet’s pretended madness never becomes an issue in regard to Claudius’ death, it comes in quite handy when he mistakenly kills Polonius. “What I have done,” Hamlet later says of the killing, “I here proclaim was madness” (5.2.201–3). Gertrude backs up Hamlet’s pretense of madness by telling Claudius that Hamlet, when killing Polonius, was “Mad as the sea and wind when both contend / Which is the mightier” (4.1.7–8). Claudius accepts the fiction and passes it on when he tells Rosencrantz and Guildenstern that “Hamlet in madness hath Polonius slain” (4.1.34). The courtiers would need no further explanation as to why Hamlet is not criminally prosecuted for Polonius’ death.

II.D. The Rat Behind the Arras

Even if the madness defense hadn’t worked in the killing of Polonius, Hamlet had a backup argument: he stabbed at the arras thinking a rat was behind it. While we know from the text that Hamlet hoped and believed Claudius was behind the arras, he cleverly shouted out, “How now? A rat? / Dead for a ducat, dead!” (3.4.27) as he stabbed, giving himself an excuse for the killing. Because the intent to kill a person is necessary for murder, a man who intends to kill a rat but accidentally kills a person instead is not guilty of murder.^[15]

The rat-behind-the-arras excuse is a new twist that Shakespeare added to the plot. In the Belleforest version of the Hamlet story in Histoires Tragiques,^[16] the counselor who eavesdrops on Hamlet’s interview with his mother hides under a quilt; Shakespeare has Polonius, on the other hand, hide behind an arras.^[17] One can see that this makes a difference from a legal standpoint because of the new state of the law. Under the medieval rule, Hamlet’s guilt in killing Polonius would have depended on whether Polonius was the “King’s lawful subject” at the time of the killing. Clearly, Polonius would qualify as a lawful subject no matter where he hid, and Hamlet would be culpable for the death.

But under the modern rule, Hamlet’s guilt depends on his intent. If he attacked a person who was hiding under a quilt, as in the Belleforest version, it would have been difficult to deny that he knew it was a person, not a rat, underneath. When Shakespeare places Polonius behind the arras, however, the rat excuse becomes plausible. One might see the rustling of an arras and assume that a rat, climbing the arras, caused the disturbance. Then one might stab at the arras, only to find that a person, not a rat, was behind it. This would not be murder because there was no evil intent. Thus, Hamlet was fortified with two legal defenses for killing Polonius: insanity and accident. Neither defense would have saved him under the medieval rules.

Could Hamlet have argued his innocence by saying that his killing of Polonius was accidental because he had actually meant to kill Claudius? This would not have worked because of the doctrine of “transferred intent.” If one intended to kill a human being but, in the course of attempting the killing, accidentally killed another human, one was still guilty of murder. The unlawful intent transferred to the unintended victim.

Nor could Hamlet have based a plausible defense on a pretense that he thought Polonius was a robber. For that defense to work, he would have to ascertain before the killing that his victim actually was a robber. A quick peek behind the arras would have immediately cured him of that notion.

II.E. Rosencrantz and Guildenstern

One of Claudius’ schemes to do away with Hamlet is to send him to England, accompanied by Rosencrantz and Guildenstern, with a written commission authorizing the English authorities to execute Hamlet. The scheme shows Claudius’ typical craftiness: by arranging for the killing to occur in another jurisdiction, Claudius ensures that he cannot be tried for it in Denmark.

As we know, Hamlet turned the tables by substituting the order for his death with an order for the deaths of Rosencrantz and Guildenstern. For this act, Hamlet could have used a similar jurisdictional argument to Claudius’: as Hamlet wrote the order while at sea, he was outside the jurisdiction of Denmark.

Hamlet could conceivably argue in the alternative that he killed in self-defense, but this is a weaker argument because self-defense usually requires an immediate threat to one’s life. Watkin argues that Hamlet’s situation subtly highlights the inadequacy of the law of homicide to “accommodate a killing done during the course of a protracted threat to the killer’s own life.”^[18]

II.F. The Duel with Laertes

Claudius conspires with Laertes to kill Hamlet in a fencing match. Claudius suggests that Laertes use an unblunted sword. Laertes goes him one better and offers to put poison on the sword tip. Clearly, this will be a premeditated murder planned in cold blood with malice aforethought. Claudius assures Laertes that it will look like an accident.

But the always-clever Claudius, like Hamlet, has a backup legal justification: killing another as part of a royally ordained joust or tournament was not a felony. Since the duel will take place under the auspices of the King, Laertes (and Claudius, his co-conspirator) will have legal cover for their actions.

II.G. Poison, Poison, Poison

And in case the poisoned sword doesn’t do the trick, Claudius has a backup for that as well: serve Hamlet some poisoned wine. Watkin points out that the play employs three of the four types of poisoning that Coke lists in his Third Institute: gustu, by taste, as with the poisoned wine; contactu, by touching, as with the poisoned sword used on Hamlet, Laertes, and Claudius; and suppostu, as with a suppository or the like, in this case, the poison that Claudius pours in his brother’s ear before the action of the play begins.^[19] Coke declared poisoning to be the most detestable kind of murder.

As for the poisoned wine, it is Gertrude, not Hamlet, who eventually drinks it. Here the principle of transferred intent comes into play. Since Claudius intended a person’s death when he poisoned the wine, his malicious intent transfers to unintended victims and he is accountable for any human death that results from the device.

II.H. Hamlet Kills Claudius

Hamlet kills Claudius after watching his mother die of poisoning and hearing Laertes reveal that Claudius is responsible for Gertrude’s death and for the poisonous plot that has fatally wounded both Laertes and Hamlet. By this time, the audience, which also knows about Claudius’ killing of his own brother and has been waiting for hours for Hamlet to wreak his vengeance, is likely to consider Hamlet’s killing of his uncle long overdue. Watkin argues, however, that the law would not see it that way.

Although Hamlet kills Claudius in what most observers would agree was the “heat of the moment,” one must recall that the law necessarily inferred malice aforethought in at least two situations: (1) stabbing a person who has no weapon drawn and (2) willful poisoning. Hamlet kills Claudius by first, stabbing him, although there is no indication that Claudius has drawn a weapon, and second, forcing him to drink poison. Under the law, the only possible verdict is cold-blooded murder,^[20] although the audience can plainly see that the killing of Claudius was nothing of the kind.

Watkin concludes that “Shakespeare can well be taken to have constructed this outcome as a direct comment on the law’s overemphasis on appearances. . . .”^[21] Considering how deftly Shakespeare combined a moment of overwhelming passion with two actions that the law deemed to be cold and calculating, we may agree with Watkin that Shakespeare’s irony is deliberate.

II.I. Oxford and the Law of Homicide

Edward de Vere, the Earl of Oxford, not only studied the law from an early age, but also he had a personal brush with homicide law at the age of 17. In 1567, he was practicing his fencing moves with Edward Baynam, a tailor, when a third person, Thomas Brincknell, a cook, joined them. We do not know exactly what happened, except that de Vere’s sword somehow pierced the cook’s femoral artery, killing him within minutes. If de Vere had not already studied the law of homicide, he had reason to do so now.

It seems unlikely that de Vere would have killed the cook with malice aforethought. Possibly, he and the cook quarreled and de Vere struck him in anger, which would have been manslaughter. Perhaps de Vere killed him accidentally in fencing practice, but this seems improbable, given the severity of the wound, which was four inches deep and an inch wide.

Or, perhaps, the cook attacked de Vere, who killed in self-defense. It is not clear whether the cook was armed. Although the Stabbing Statute was not enacted until 1603–04, it is unlikely that a jury of peers, even in 1567, would have accepted a self-defense argument for the armed killing of an unarmed man.

But whether de Vere’s act was premeditated, provoked, accidental or done in self-defense, he faced a penalty ranging from death (if it were murder) to imprisonment for up to a year (if it were manslaughter) to loss of personal property (if it were accident or self-defense). De Vere escaped all of these through a kind of legal hairsplitting that lawyer and Shakespeare commentator Daniel Kornstein has called “a metaphysical delight.”^[22]

The coroner’s inquest found that the cook, who was drunk, “not having God before his eyes, but moved and deceived by diabolic instigation . . . ran and fell upon the point of [the Earl of Oxford’s] foil . . . [and] gave himself . . . one fatal stroke. . . .”^[23] This implausible conclusion made the death entirely the fault of the godless cook and absolved de Vere of any wrongdoing. Surely, it helped that de Vere was an earl and that his guardian, Sir William Cecil (later Lord Burghley), was an extremely powerful man.

De Vere, if he was Shakespeare, may have been satirizing the legal fictions that saved his own neck when he had the gravediggers in Hamlet discuss the rules of self-defense:

Second Clown [Gravedigger] . . . The crowner hath sat on her, and finds it Christian burial.
First Clown. How can that be, unless she drowned herself in her own defense?
Second Clown. Why, ’tis found so.
First Clown. It must be se offendendo, it cannot be else.
(5.1.3–5)

The first gravedigger means “se defendendo,” or self-defense, not “se offendendo,” but here the lower class characters misstate the law, as they usually do in Shakespeare’s plays.^[24] The idea that one could drown oneself “in self-defense” (presumably to prevent oneself from killing oneself ) is as zany a piece of illogic as to think that a man would commit suicide by running into another man’s sword.^[25] It is also a parody on legal treatises of the time that analyzed suicide by the same formulae as homicide while completely ignoring that in suicide the “murderer” and “victim” were the same person.^[26]

De Vere may also have identified with both Claudius and Hamlet, who use their privileged positions, as well as some clever playacting, to get away with murder. Mark Anderson, a de Vere biographer who posits that de Vere was the man behind the Shakespeare plays, writes: “As with nearly all his crimes and misdemeanors, de Vere’s acknowledgment of his rash and destructive behavior came later in life—in the form of words that are performed today on stages around the world.”^[27]

Watkin notes that some incidents in Hamlet “seem to be based on examples contained in discussions of homicide in legal works—for example, Shakespeare’s introduction of the rat-killing pretext for the slaying of Polonius, not to mention the anticipation of Coke’s language and analysis with regard to poisoning. . . .” Watkin says that Coke’s analysis “may have been based on contemporary Inns of Court readings and discussions on which Coke later drew.”^[28]

When one considers that Coke’s Third Institute was not completed until 1628 nor published until 1641, it is remarkable that the author of Hamlet (published in 1603–4) was so well-versed in Coke’s legal analysis of homicide. The playwright must have kept up with the law of homicide as it evolved through the enactment of statutes and the publication of court opinions. Or, perhaps, he heard readings on the subject at the Inns of Court.

The detailed understanding of law evident in Hamlet suggests an author with formal legal training, who understood the nuances of the law and could arrange fact patterns in the play so as to align with the law as it existed in his time. This profile fits what we know of de Vere more closely than it fits what we know of the man from Stratford.

III. Property Law: Hamlet’s Lost Inheritance

Property rights are a subtly recurring theme in Hamlet, as J. Anthony Burton demonstrated in an article published in the 2000–2001 Shakespeare Newsletter.^[29]

An understanding of English property law during Shakespeare’s time increases our understanding of many of the main characters’ actions and motivations.

III.A. King Fortinbras’ Lands

As Burton notes, property references run throughout the play, beginning in the first scene when Horatio explains the military threat to Denmark from Norway. Part of the background of the potential hostilities is that many years before, Hamlet’s father, King Hamlet, had agreed to a wager based on a challenge by King Fortinbras of Norway (father of the young Prince Fortinbras who appears in the play). The terms were man-to-man combat to the death, the winner to take all the lands owned by the loser. King Hamlet slew King Fortinbras and assumed ownership of his lands.

Young Fortinbras, whose spirit is now “with divine ambition puff ’d” (4.4.49), seeks to exact vengeance for his father’s loss of land by attacking Denmark. When Fortinbras’ uncle quashes that scheme, the young prince apparently settles on some worthless land in Poland as a substitute target. Having secured the services of some “landless resolutes”^[30] (1.1.103)—possibly some impoverished younger sons who wish to make their fortunes in Fortinbras’ army—he gains permission to march through Denmark. Perhaps in recognition of Fortinbras’ claims on Denmark, Hamlet gives Fortinbras his “dying voice” (5.2.344) at the end of the play, as events come full circle and Norway reclaims its lost property, and more.

But, immediately after Claudius murders King Hamlet, what happens to the lands that King Hamlet won in combat from King Fortinbras, as well as any other lands King Hamlet may have personally owned? Presumably, they would descend by inheritance to his eldest son, Hamlet. Hamlet would not have automatically inherited the crown because, in Denmark, the kingship was an elected position. (This is one of the few points of Danish law, rather than English, that figures into the plot.) Claudius managed, probably through superior political skills and his being at Elsinore when his brother died, to win the election over Hamlet.

The election would not, however, change Hamlet’s inheritance rights to lands that his father had owned—lands that belonged to his family and did not go along with the crown. Hamlet should be living comfortably on the income from those lands, but the play suggests that he is living in genteel poverty. “Beggar that I am,” he tells Rosencrantz and Guildenstern, “I am even poor in thanks” (2.2.250). When Claudius asks him how he fares, he replies, “Excellent, i’ faith, of the chameleon’s dish. I eat the air, promise-crammed” (3.2.82–3). This is a reference to the ancient belief that chameleons could live by eating air. Hamlet, a prince, cannot even afford good servants, for he tells Rosencrantz and Guildenstern that he is “most dreadfully attended” (2.2.247).

Hamlet may not be enjoying the income from his father’s lands because of certain quirks in property law that could delay an inheritance. Burton argues that Claudius has skillfully manipulated the law so that Claudius, not Hamlet, is benefiting from Hamlet’s inheritance and that Claudius’ machinations threaten to delay Hamlet’s inheritance indefinitely.

To read the full analysis of property law in Hamlet, consult the complete article here.

The poster of Hamlet, the movie Olivier directed and in which he starred

Conclusion

Laurence Olivier said of Hamlet, “You can play it and play it as many times as the opportunity occurs and still not get to the bottom of its box of wonders.”^[31] This analysis has attempted to show that, by exploring the rich legal ore in Hamlet, we may better understand the great debt that this wonder of a play owes to the subject of law. But, if Hamlet can inspire legal scholars such as those cited here to consider the deeper meanings of law and justice, then it is a debt that Hamlet continues to repay.

Endnotes

^[1] See, e.g., Ramon Jiménez, “The Case for Oxford Revisited,” The Oxfordian, 11 (2009): 45–64, https://shakespeareoxfordfellowship.org/wp-content/uploads/Oxfordian2011_jimenez_merchant.pdf; Mark Anderson, “Shakespeare” by Another Name: The Life of Edward de Vere, Earl of Oxford, the Man Who Was Shakespeare (New York: Gotham Books, 2005); Joseph Sobran, Alias Shakespeare: Solving the Greatest Literary Mystery of All Time (New York: Free Press, 1997); Richard F. Whalen, Shakespeare—Who Was He? The Oxford Challenge to the Bard of Avon (Westport, CT: Praeger, 1994); Charlton Ogburn, The Mysterious William Shakespeare: the Myth and the Reality (New York: Dodd, Mead & Co., 1984); J. Thomas Looney, “Shakespeare” Identified in Edward de Vere, the Seventeenth Earl of Oxford (New York: Frederick A. Stokes Co., 1920).

^[2] R.S. Guernsey, Ecclesiastical Law in Hamlet: The Burial of Ophelia (New York: Brentano Bros., 1885), 5.

^[3] Quotations from Hamlet are from the soon-to-be-published Oxfordian Shakespeare Series edition, Jack Shuttleworth, editor (Truro, MA: Horatio Editions, 2017). A condensed version of this article appears in the Oxfordian edition.

^[4] The English antiquarian, Thomas Hearne (1678–1735), left orders that his grave be made “straight” east and west, by a compass. T.F. Thiselton Dyer, Folk-lore of Shakespeare (London: Griffith and Farran, 1883), 359.

^[5] Samuel Johnson interpreted “straight” as east–west in his 1765 edition of Hamlet. Many modern editions define “straight” merely as “straightaway,” “immediately,” or the like.

^[6] Guernsey, 43–4.

^[7] Guernsey, 45.

^[8] Thomas Glyn Watkin, “Hamlet and the Law of Homicide,” Law Quarterly Review, 100 (1984), 282–310.

^[9] 6 Edw. I, c. 9 (1278).

^[10] Edward Coke, Third Institute (London, 1641), 47.

^[11] 11 1 Edw. VI, c. 12 (1547) (“[A]ll willful killing by poisoning of any person or persons…shall be adjudged, taken, and deemed willful murder of malice prepensed [aforethought].”) (spelling modernized).

^[12] 1 Jac. I, c. 8 (1603–4) (“[E]very person . . . which . . . shall stab or thrust any person or persons that hath not then any weapon drawn, or that hath not then first stricken the party which shall so stab or thrust, so as the person or persons so stabbed or thrusted shall thereof die…although it cannot be proved that the same was done of malice forethought, yet the party so offending, and being thereof convicted . . . shall . . . suffer Death as in case of Willful Murder.”) (spelling modernized).

^[13] Coke, 55.

^[14] Saxo (Grammaticus), “Amleth, Prince of Denmark,” in The Danish History of Saxo Grammaticus (c. 1185), trans. Oliver Elton (London: David Nutt, 1894).

^[15] As legal commentator William Lambard wrote, “And if a man lay poison for rats, and another taketh it unawares, and die thereof, this is not any ways to be laid to the other’s charge.” Eirenarcha (London, 1581), 218, quoted in Watkin, 300 (spelling modernized).

^[16] François Belleforest, “The Hystorie of Hamblet” in Histoires Tragiques (1570), trans. anon (London, 1608).

^[17] In Belleforest’s French version (1570), the counselor hid under a quilt; in Saxo’s Danish version (c. 1185), he hid in some straw. The anonymous English translator of Belleforest, in 1608, modified the story to follow Shakespeare’s version (1603–4) by placing the counselor behind an arras and having Hamlet cry, “A rat! a rat!” Thus, the placing of Polonius behind an arras appears to be Shakespeare’s original device. Israel Gollancz, The Sources of Hamlet (London: Oxford University Press, 1926), 319–20.

^[18] Watkin, 309.

^[19] Coke’s fourth type of poisoning was “anhelitu, by taking in of breath, as by a poisonous perfume” (Coke, 52).

^[20] Members of the court cry out that Hamlet is guilty of treason for killing the King, but they are unaware that Claudius himself was a traitor for killing his brother, the previous king. Hamlet could have argued that killing a traitor is not treason.

^[21] Watkin, 307.

^[22] Daniel J. Kornstein, Kill All the Lawyers? Shakespeare’s Legal Appeal (Princeton: Princeton Univ. Press, 1994), 104.

^[23] The National Archives KB 9/619, Part 1, Item 13 (trans. Nina Green).

^[24] In a sense, the gravedigger backs into the truth of the matter because suicide is in fact self-offense.

^[25] In Shakespeare’s Julius Caesar (5.5), Brutus commits suicide by running on his own sword—held, at Brutus’s request, by Strato. But Brutus, in defeat, was acting on his Roman sense of honor. We have no reason to believe that Brincknell was acting on such motives.

^[26] Watkin, 291.

^[27] Anderson, 37.

^[28] Watkin, 310.

^[29] Anthony Burton, “An Unrecognized Theme in Hamlet: Lost Inheritance and Claudius’ Marriage to Gertrude,” The Shakespeare Newsletter, 50 (2000–1): 71–106.

^[30] In keeping with an awareness of the ubiquity of property themes in the play, the Oxfordian edition follows Burton and others in preferring the First Folio’s “landless” to the Second Quarto’s “lawless.”

^[31] Laurence Olivier, On Acting 76–7 (1986)

*Tom Regnier, JD, LLM, former President of the Shakespeare Oxford Fellowship, is an appellate attorney working in South Florida. He received his J.D., summa cum laude, from the University of Miami School of Law, and his LL.M. from Columbia Law School, where he was a Harlan F. Stone Scholar. He has taught at the University of Miami School of Law (including a course on Shakespeare and the Law) and at Chicago’s John Marshall Law School. He has frequently spoken at authorship conferences on aspects of law in Shakespeare’s works, and he wrote the chapter on Shakespeare’s legal knowledge in Shakespeare Beyond Doubt? (2013). He has also performed in nine Shakespeare productions. In 2016, his presentation on “Hamlet and the Law of Homicide: the Life of the Mind in Law and Art” was selected by the Dade County [Florida] Bar Association to inaugurate its Thurgood Marshall Distinguished Lecture Series.