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'Hamlet,' Hales v. Petit, and the hysteresis of action.

to intellectual history of the filtering of legal constructions of action into the theater, arguments that Hamlet can be situated determinately in that history are unlikely to be convincing, in part because the structure of the legal appropriations offers in itself no grounds for deciding the question in favor of one version or the other.


This lack of guidance is reflected also in the fact that the case of Hales v. Petit, as it is reported in Plowden, transmits to Hamlet a Hales story entirely lacking those details that I: RECOVERING ACTION

Among the various deficiencies recently detected in new historicist critical practice is the lack of an adequate account of agency and action.(1) Satisfactory critical practice need not depend on the explicit formulation of such an account, of course, notwithstanding complaints that the new historicism is under-theorized.(2) In any case I don't propose here to decide on the legitimacy of this particular charge through an analysis of supposedly representative new historicist critical texts, but rather to think about what might be called for in the construction of an account of the kind that is felt to be missing, and to offer some preliminaries to a practical reading of Hamlet, that topos of the problematic of human action, that engage some issues relevant to the place of action in literary and historical theory and practice.

For my purposes the place to begin is with Alan Liu's suggestion that

History . . . must be studied not just as an expressive action of self-, monarch-, or hegemonic state-display (the purely theatrical "action" of New Historicist unrealpolitik) but also as action qua action -- as action, that is, seen as an alternate ground of explanation definitive of what we mean by identities and their coercive representations.(3)

According to the predicative logic Liu suggests governs the relation between action and the subject, action should assume a complementary status with respect to (the hermeneutically necessary illusion of) the latter, to which in Liu's scheme "action qua action" is formally opposed: "Without both these concepts of subject and action, of identities on display and practices creative of such modes of self-fashioning as display itself, there could be no fully satisfying historical explanation."(4) Paying attention only to subjects results in the reduction of the mechanisms or processes by which agents influence (impose power over) one another to the "voodoo of resemblance" to which new historicism is said to resort when confronted with the prospect of making difficult connections between historical phenomena, while from the perspective of action it is the subject itself that becomes illusory, a necessary hermeneutic device allowing us to "narrativize transitional moments in systems of action."(5)

This account raises for my purposes two related issues. First, Liu does not explicitly distinguish between practice and action, and effectually conflates three distinct (or at any rate distinguishable) philosophical traditions: the Hegelian/Marxist concern with praxis as intervention, particularly as it derives from the project forecast in the "Theses on Feuerbach"; the principle of practice as it is used, especially in sociology and anthropology, to describe routine or habitual social conduct; and the Anglo-American analytic philosophy of action after Wittgenstein. These institutional divisions, while they need to be acknowledged, threaten in turn to conceal the specific history of the discourse of action that precedes and enables modern usages. Anne Middleton has recently called for the literary historian to reclaim a significance for the concept of the literary work (as the term is opposed to text), and for the related principle of human agency; in order to do so we must first of all ask, she says, how we can "speak of what we are trying to narrate as actions rather than simply 'practices'?"(6) The distinction, for Middleton, appears to reside in a sense that the latter term implies a lack of the conceptual structures of the language of action: intention, agency, and generally the vocabulary of practical reason; I read Middleton as calling for the recovery of the history of the language of practical reason -- the history of, in Liu's expression, "action qua action," though action, for Liu, rather than constituting a conceptual language with its own history, appears to be a hermeneutic expedient that complements the necessary fiction of the subject (as well as representing the theoretical possibility of praxis as intervention).(7) It might be argued, however, that if it is to evaluate properly the significance of action in either of these two senses, the account of action Liu calls for must be situated within the history of the idea of action, and in the tradition of practical reason that, originating in Aristotle, has provided the basis of the ordinary language of action in popular thought as well as in analytic philosophy, even though it may be too much to say that only through a history of this tradition can the relevance of "action qua action" to the practice of literary studies be secured, or even properly assessed.(8) I don't in any case propose to furnish here anything of the kind.

This is where the second issue raised in Liu's account comes in, namely his assumption that action is properly understood within the structural framework of grammatical and logical predication. Liu invokes the predicational framework in order to suggest that action is properly studied in instrumental as opposed to representational terms. But a representational approach to action need not, as Liu seems to imply, entail a fixation on a subject defined in formal opposition to action qua action. Instead, a renewed scrutiny of both the representations of action, and the representational structure of action (including, for example, the principle of predication itself) can serve as a historicizing response to the deficiency Liu identifies.


Liu's implicit assumption that a purely predicative logic indifferently governs practice and action conceals a distinction that corresponds roughly to these two terms, between the production and reproduction of social structures through forms of conduct, and the phenomenal structure of action from the point of view of the agent, or the phenomenological analysis of that structure. The Hegelian self-realization of Geist in praxis, and the phenomenological derivation of social laws in (for example) the work of Alfred Schultz, are based on the premise of what could be termed the immanence of practice in action, or the possibility of the former's derivation from the latter. (In contrast, the Anglo-American tradition's interest in action has tended to be restricted to the individual agent and to disregard the problems of historical understanding and the social determinants of action.(9))

In some structuralist and post-structuralist work, however, a related translation entails -- evidently as a corollary to the premise of the text's interpretive estrangement from its author -- the exclusion of the predicative relationship from accounts of practice even where the language of practical reason is introduced to describe the production and reproduction of social structures. The result is what may be called a hysteresis effect: the language of action persists despite the cessation or disappearance of the intending subject that constitutes its logical and grammatical cause if not necessarily its historical derivation. A striking instance is Foucault's assertion in The History of Sexuality that

power relations are both intentional and nonsubjective. If in fact they are intelligible, this is not because they are the effect of another instance that "explains" them, but rather because they are imbued, through and through, with calculation: there is no power that is exercised without a series of aims and objectives. But this does not mean that it results from the choice or decision of an individual subject. . . . |T~he logic is perfectly clear, the aims decipherable, and yet it is often the case that no one is there to have invented them, and few who can be said to have formulated them.(10)

Foucault is denying that power relations are finally traceable to the intentions and plans of a subject, but at the same time these relations appear irreducibly in the language of practical reason (calculation, intention, aims, objectives). Liu complains in effect that in new historicism the verbal segment of the predicative link goes unexamined as such; Foucault's account preserves the protentional structure of the same segment while abandoning the predicative link altogether, raising the question of what it means to say that there is an intention without anyone to intend it. The combination "intentional and nonsubjective" marks the appearance of a logical disorder in the language of practical reason that seems to occur where the language is transplanted from the purview of individual, "personal" action represented discursively (the delimited, ostensibly extra-political conceptual space it has come to occupy in analytic philosophy) to the realm of practice (political power and interactive social conduct generally). The former space is also that claimed for practical legal reasoning precisely to the extent that in such reasoning the normative definition of the social significance of action consists in an objective reconstruction of the agent's own experience and its processing through a set of legal rules and categories; the difficulty involved in any translation of the language of personal agency into higher level systems of events (social reproduction, history, politics) appears with particular clarity in the legal fiction of corporate personality.(11) The distinction itself, of course, is constructed rather than given.

The relation between practice and action also enters into recent attempts in sociology and anthropology to overcome the traditional conceptual opposition between social structure and human agency. Both Pierre Bourdieu's theory of practice, and Anthony Giddens's work in structuration theory, for example, are directed in part toward overcoming this division by showing that structure is neither logically opposed to action nor a limit imposed on it from without, but rather the enabling medium in and through which agents act; each may thus be taken as responding indirectly to the apparent paradox Foucault invokes in The History of Sexuality. Bourdieu's response rests on the distinction between objective and conscious intentions, which he develops out of a critique of the phenomenological postulate of the "pure transparency of the subject and the mineral opacity of the thing."(12) Habitus ("systems of durable, transposable dispositions, structured structures predisposed to function as structuring structures") are, according to Bourdieu,

objectively adapted to their goals without presupposing a conscious aiming at ends or an express mastery of the operations necessary to attain them and, being all this, collectively orchestrated without being the product of the orchestrating action of a conductor.(13)

Hence the idea of objective intentions:

Because |the agent's~ actions and works are the product of a modus operandi of which he is not the producer and has no conscious mastery, they contain an "objective intention", as the Scholastics put it, which always outruns his conscious intentions. The schemes of thought and expression he has acquired are the basis for the intentionless invention of regulated improvisation.(14)

We must not, therefore, "reduce the objective intentions and constituted significations of actions and works to the conscious and deliberate intentions of their authors."(15) Bourdieu is attempting to dissolve the opposition between a Levi-Straussian, "objectivist" structuralism, which reduces practice to rule-following behavior accurately and fully summed up in its discursive representations, structural descriptions and sets of codes, norms and rules, and the subjectivism of a phenomenology that claims to derive social reality from the conscious experience of the actor.

While they thus describe or account for practice, objective intentions nevertheless lack agents to put them into execution. To say that the habitus itself steps in as a collective or impersonal agent in the form of a fiction of corporate personality is to evade the intent of Bourdieu's project, for precisely what is surmounted in this theory of practice is the opposition between the social and the personal as rival determinants of human action. Nor are objective intentions simply intentions deployed by the actor unconsciously in practice (unconscious intentions); rather they correspond to courses of action generated by the habitus out of objectively existing social structures.(16) This results in what Michel de Certeau, in his critique of precisely this aspect of Bourdieu, calls a "docta ignorantia, . . . a cleverness that does not recognize itself as such," though even de Certeau perhaps underestimates the extent to which for Bourdieu the habitus objectifies practical reason.(17) As in Foucault's account of power relations as intentional but nonsubjective, we are left with intentions that are not intended by anyone. In neither case do agents and their intentions altogether cease to exist; but in each case a new category of agentless action makes its appearance.

Intention is that aspect of action traditionally understood as necessarily internal and subjective; it could even be argued that intention can be taken to constitute a kind of subjectivity. The use of the notion of an objective intention to account for "intentionless invention" thus marks a radical restructuring of the concept of intention in which its organizational, teleological structure is taken over without its predicational link to an organizing, strategizing subject.

What Bourdieu accomplishes through the distinction between objective and conscious intentions, Giddens accomplishes through the distinction between discursive and practical knowledge, which enables him to distinguish between the accounts agents offer for their actions and the factors which in fact motivate those actions without discarding the former category altogether. Giddens, however, avoids the hysteresis effect detectable in Foucault and Bourdieu by rearticulating, rather than rejecting, the link between agent and action. In opposition to what he sees as a "derogation of the lay actor" in modern sociological thought, Giddens attempts to reconstruct a role for human agency in the production and reproduction of social formations through the principles of "practical consciousness: tacit knowledge that is skillfully applied in the enactment of courses of conduct, but which the actor is not able to formulate discursively," and "the reflexive monitoring of conduct," which "refers to the intentional or purposive character of human behavior" and "emphasizes 'intentionality' as process."(18) Practical consciousness differs from Bourdieu's objective intentions in that it substitutes a discursive threshold for the objectification that disturbs the logic of practical reason; thus for Giddens a functional distinction between action and practice is possible without an objectification and consequent predicational unmooring of the latter.(19)

In suggesting, as I am about to, that Hamlet and Renaissance legal discourse seem to anticipate a post-structuralist hysteresis of action, I will stop short of claiming any historical causality. Yet I do want to preserve the plausibility that these precursors may in fact help to establish the condition of possibility of the rhetorical strategy by which intentions and practical schemes are enabled to persist, conceptually, in hypostatized form, without or apart from subjects. What follows is nevertheless a far more modest undertaking, an attempt to reconsider the structure of action in Hamlet and to account for the ways conceptualizations of action moved between legal and theatrical fields. This project, which looks for ways of relating actions and practices, naturally branches in two directions. Following one branch will mean exploring what is arguably a limited commensurability between represented and representing intentions and actions.(20) The actions represented as performed by dramatic characters and the compositional activities involved in representing those actions, while logically nested as a result of the translocutionary structure of both dramatic composition and performance, are also distinguished by the threshold of contradiction that typically marks out the artifact qua artifact and excludes from the representation of action the phenomenal organization of compositional activity. A second branch directs attention toward deployments of accounts of action in the service of competing political and institutional practices, as in the appearance in Hamlet of material from the report of the case of Hales v. Petit (1562) in Plowden's Commentaries.


The limited commensurability between represented and representing intentions and actions is economically demonstrated by the presence of a single word -- "Hum" -- in the Q2 text of Hamlet. A traditional critical complaint is that, while toward the end of his "O what a rogue and peasant slave am I" soliloquy, Hamlet appears to conceive the idea of the play-within-the-play, he has already inquired if the players know the Murder of Gonzago and can insert into it the famous "dozen or sixteen lines."

About, my brains. Hum -- I have heard That guilty creatures sitting at a play Have, by the very cunning of the scene, Been struck so to the soul that presently They have proclaim'd their malefactions. For murder, though it have no tongue, will speak With most miraculous organ. I'll have these players Play something like the murder of my father . . .


Why, it is asked, does Hamlet appear to conceive the plan before our eyes when he seems already to be setting it in motion in a brief exchange with the player at the end of the latter's recitation, some fifty lines earlier?

Dost thou hear me, old friend? Can you play The Murder of Gonzago? . . . We'll ha't tomorrow night. You could for a need study a speech of some dozen or sixteen lines, which I would set down and insert in't, could you not? (2.2,531-36)

Dover Wilson informs us in a footnote that

we are to suppose Hamlet "hitting on" the Gonzago scheme while the First Player recites the Pyrrhus speech and that Shakespeare communicates this to us by means of an expository soliloquy, a soliloquy which recapitulates Hamlet's emotions as the Player's recitation proceeds. . . . Thus, though the soliloquy is actually uttered after the players have gone out, it is in effect a dramatic reflection of what has already taken place, and as such is an interesting example of one use of the soliloquy convention.(22)

The device the passage exemplifies is quite unusual, however, and more remarkable than Wilson's attempt to reabsorb it into convention suggests. This is not a case where Hamlet acts improvisationally (as when he alters the letters during his sea voyage), or where he acts on impulse and asks questions later (as when he stabs Polonius and then asks "Is it the King?"), though I think it is related to these. Here, on the contrary, the action actually precedes the conception on which it appears to have been based.

As Joseph Hunter noted in 1845, it is particularly the word "Hum" (584) that makes the problem here, since without it, "About, my brains," rather than referring to Hamlet's conception of the scheme itself, (which we are to understand occurred to him while he listened to the player's speech), might plausibly be construed as indicating that he is preparing himself for the task of writing the lines to be inserted into Gonzago -- in other words that it concerns the labor of composition rather than the originating conception -- and that the lines that follow are a recitation of what Hamlet has already determined.(23)

In short, the passage would be more consistent (or, rather, less problematic) if "Hum" weren't there; and in fact the word does not appear in either Q1 or F, both of which seem to be closer to what was acted than Q2 is.(24) The word may well have been removed from F in order to eliminate a problem likely to have been accentuated, rather than concealed, in performance; or, of course, it may simply have been dropped by accident.(25) But explanations of its absence in F don't explain its presence in Q2, as a mistake or as anything else. What can this presence tell us about the relation between the representation of action and the activity of composition? The textual crux represents, I think, an index to a conceptual crux, a critical moment precipitated by the activity of representing action.(26) Hunter remarks that "Hum" "ought not to be there, as it makes prospective what is evidently retrospective."(27) It is true that "Hum" seems to confuse the prospective and the retrospective, but I want to quibble with Hunter's claim that it therefore "makes prospective what is evidently retrospective," a claim based on his earlier remark that "this is evidently intended to be the first conception of the design to try the conscience of the King with the play." The givenness Hunter appeals to in "evidently" is the givenness of the dramatic mimesis of action; but the structure of action itself is organized by a similar entanglement of prospective and retrospective, since it is in retrospection that the prospective is constituted as such, that is, since the teleological structure of intentional action entails a retroactive element. To put it paradoxically, plans for the future can only be made as though after the fact, or rather after the act. "Hum" expresses in radical form the structure at the threshold of which are situated those instances, remarked earlier, where Hamlet acts spontaneously or impulsively. This inversion recalls Schutz's account of the phenomenology of internal time-consciousness in terms of a future perfect tense in which actions must be thought as already accomplished in order to be begun.(28) But whether or not such an inversion is accepted as a fact of consciousness, it is a common feature of Shakespearean representation.(29)

What distinguishes "Hum" from similar Shakespearean acts, however, is that it discloses in pure form the intrusion of the temporal logic of compositional activity into the temporality of dramatic representation; the resulting juxtaposition precipitates in the text the paradox latent in the structure of action. Compositional acts, like other acts, are always intentionalized in part only after their execution; and there is in Hamlet a tendency for dramatic utterance to appear to give voice to the cognitive processes of compositional activity. When Hamlet, having killed Polonius and upon being asked what he has done, replies, "Nay I know not," by the logic of translocution the utterance is also, necessarily if inaccessibly, Shakespeare's too. But this translocutionary nesting of speech acts inevitably encounters its limit in the exigencies of performance itself. It seems likely that, as E. A. J. Honigman has argued, Shakespeare composed synchronically, working recursively on different parts of his script rather than adhering strictly to the sequential temporality of line and page.(30) The conventional temporality of dramatic performance, while it allowed certain kinds of temporal manipulation did not, of course, admit this sort of synchrony. One might then say that "Hum" has dropped out of F because it marks Shakespeare's labor rather than Hamlet's, or rather because it marked a coincidence between them lost when authorial production had passed beyond a certain stage. It is precisely the peculiar signs of the subjective awareness of the composition process that disappear (or, as here, appear as anomalous contradiction) when a script is performed, in the theater or in the reader's mind.(31)

The silencing of compositional process may also account for the more notorious crux of Claudius's lack of response to the dumb show, in the sense that Claudius's behavior can be described as structured by an inversive distribution of simultaneity similar to that involved in "Hum." As Hunter remarks, were it not for "Hum," the passage under discussion might refer to Hamlet's own compositional activity, rather than to his conception of the plan itself. Again, it is "Hum" that destroys the implied commensurability; but more important, the ambiguity of the passage nests Hamlet's compositional activity within Shakespeare's: the insertion of Hamlet's lines within Gonzago represents and repeats Shakespeare's insertion of Gonzago within Hamlet. The dumbness of the dumb show in Gonzago may then be understood as standing in as a sort of mute reminder of the compositional activity that subtends the play but is powerless to enter into the forms of action it itself has generated; the deferral or belatedness of Claudius's response seems to correspond to the deferral implicit in the inversion that compositional activity opened in the represented sequentiality of Hamlet's cognitive processes in the "Hum" example.


The preposterous structure of action in Hamlet extends also to agents' own accounts of their conduct, the most obvious example being Hamlet's attempt to account for the slaying of Polonius after the fact. Now given this structure, if, as Nietzsche suggests, Hamlet is unable to act because he knows rather than because he does not, the question arises whether action, in Hamlet, is initially an epistemological problem at all, or whether on the contrary the problem of knowing arises through or in action, and concerns its consequences rather than its conditions of possibility.(32) The preposterous aspect of Hamlet's attempts to construct a fictional account of what he has done ("I took thee for thy better," he tells the dead Polonius) corresponds, in fact, to Nietzsche's displacement or inversion of epistemological questions: action becomes an epistemological problem only after the fact. Divining the intentions of others was presumably no easier in the Renaissance than it is today, and the anxiety this difficulty produced is visible in many aspects of early modern life, and especially in the law.(33) But as the example of Hamlet's killing of Polonius suggests, the problem begins in the need to account for one's own intentions, rather than those of others; and this in turn suggests that, in its origin, the problem is less epistemological than ontological and practical. The epistemological problem of evidence -- the existence of which is virtually a canonical critical observation about the play -- is itself displaced when we consider that Hamlet's doubts along these lines arise only upon reflection, and presumably as a pretext of one sort or another (his initial response is eminently practical: "What must we do?") and are therefore arguably epiphenomenal, rather than foundational, with respect to action.

The "problem of action," then, is less a matter of how it is possible to act than of how it is possible to account for one's actions after the fact; and like other Renaissance actors, on stage and off, Hamlet conceives such explanations primarily in terms of intention. As the mental component by which the ethical, legal, and religious value of action has traditionally been measured, intention is at the center of those Western discourses that construct a theory of human agency or presuppose such a theory in practice. In legal discourse particularly, the maxim that actus non facit reum nisi mens sit rea (the act does not make one guilty unless one's mind is guilty), where mens rea represented criminal intent or "prepensed malice," expressed one of the fundamental doctrines of the English common law.(34) Hamlet, and arguably the Renaissance tragedy generally, links interiority and intention in a manner also characteristic of conceptualizations of the person in the criminal law of the period. This synecdochic reduction of interiority to intention can be detected indirectly, in the Hystorie of Hamblet (1608), which translates Belleforest's Histoires Tragiques but also substitutes certain details taken from Shakespeare's version: what in Belleforest are non-specific expressions of interiority, the anonymous translator of the Hystorie routinely renders in specifically intentional terms, as though the dramatic filter precipitates this language in the narrative.(35) Hamlet itself does not inevitably represent interiority as intention, but it is permeated with legal conceptions of a typically criminal subjectivity that implicitly conceives interiority in terms of mens rea.(36)

Hamlet's restructuring of problems of knowing as problems of doing and accounting for doing, however, also entails that intention as the representative aspect of an interiority effect defined exclusively as posing a problem of opacity for others is itself displaced by intention as the key conceptual component of practical strategies of action in the theater and in the law, and of a type of fictionality in which such conceptualizations are narrativized. As the structural model of a dramatic and legal representational mode that tends to preempt epistemological questions by reorganizing as fictions the issues of fact involved, this fictionality partakes in Hamlet of the conceptual resource of the legal principle of equity, which derives fictional hypotheses from retroactive reconstructions of the intentions of the legislator and defendant.(37) The play develops the rhetorical category of hypothesis into a mode of representation associated, in the internal opposition between script and performance, with the latter term, and which derives its temporal organization from the retroactive structure of intentional action we have seen exemplified in "Hum."


The legal analysis of action finds its way into Hamlet in the form of structures and concepts immanent in a shared rhetoric of action. Such a presence is necessarily elusive, but we can pin down a specific kind of legal source for the play in fictional (shaped) reconstructions of acts of homicide that originate in sixteenth-century legal discourse.(38) As Sir John Hawkins seems to have been the first to observe, Shakespeare uses legal terminology in the Gravedigger's banter at the opening of act 5 in such a way as to suggest fairly certainly that he had read (or at any rate was familiar with) the case of Hales v. Petit (1562), presumably as it was reported in Plowden's Commentaries, since no other report of the case is known.(39) This case concerned the legal ramifications of the suicide of Sir James Hales, a Justice of the Court of Common Pleas, considered almost a minor Protestant martyr owing to his resistance to the relaxation of laws against Catholic nonconformists after the accession of Mary. In 1553, despite the fact that earlier that year, before Edward VI's death, he had supported Mary's right to the throne when asked to approve the settling of the succession on Lady Jane Grey, Hales was reprimanded for upholding indictments at the Kent assizes against certain "prevent-law priests" for saying mass before the laws had been changed to reflect the new queen's wishes. Interrogated and imprisoned, he finally (according to Foxe, and later Burnet and Strype) capitulated, and this defeat apparently distressed him so much that while still in prison he attempted suicide by opening a vein. The attempt proving unsuccessful, he was afterwards released, but in April 1554 drowned himself in a small stream near his house in Kent.(40) John Foxe tells the story at some length in the first edition of his Acts and Monuments (1563), and a supposed transcript of Hales's interrogation by Lord Chancellor Gardiner had at this time already appeared in a five-page octavo pamphlet.(41) Despite its awkward ending, Hales's story is likely to have appealed to anti-Catholic factions in the final decades of Elizabeth's reign.(42) But while Shakespeare seems likely to have read the brief recitation in Holinshed, if not the longer version in Foxe, the apparent references in act 5 suggest no more than that he knew of the unsuccessful lawsuit brought by Hales's widow Margaret.

After Hale's death a coroner's jury ruled his possessions forfeited to the crown in conformity with the law respecting penalties assessed against felos de se. Among the possessions so forfeited was a lease held jointly by James and Margaret Hales for a piece of land known as Graveney Marsh. This lease the crown had in turn granted to Cyriack Petit, and the suit was an attempt by Margaret to recover it from him. Her attorneys claimed that Hales did not become a felo de se, or thereby forfeit those goods that otherwise would have gone to his executors, during his lifetime, but only upon his death. They argued that the felony occurs only after the effect (the death) has ensued from the cause (Hales throwing himself in the water): "The Death has not Relation to the Cause of it, but for the Forfeiture it has Relation to the Death itself, and when the Death comes, than he shall be adjudged a Felon."(43) Now although death and forfeiture occur in an instant, "yet in Things of an Instant there is a Priority of Time in Consideration of Law," so that "the End of his Life makes the Commencement of Forfeiture," for "every Instant contains the End of one Time and the Commencement of another."(44) Therefore the lease, which he had held jointly with Margaret, reverted to her upon his death, but before the forfeiture took effect. It is a part of Petit's defense against this argument that has been detected, in distorted form, in Shakespeare. Petit's attorneys argued that Hales's felony must have relation not to his death but to his life, since he committed it during his lifetime:

The Forfeiture of the Goods and Chattles, real and personal, shall have relation to the Act done in the Party's Life-time, which was the Cause of his Death; and upon this the parts of the Act are to be considered. And Walsh said, that 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 a 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, which is only a sequel to the Act.(45)

Editors compare this passage with the Gravedigger's nutty argument, in which the three categories turn out to be almost identical:

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. (5.1.10-13)

The plaintiff's underlying claim, that Margaret took possession before forfeiture occurred, is premised on the division of action between a cause and an effect, and on the assertion that the action is incomplete, for the purposes of identifying it as felonious, until the effect is fully consummated. While admitting that this consummation occurs in an instant, the plaintiff must nevertheless divide that instant in order to locate within it a virtual (constructive or fictional) duration in which in turn her right to the property by survivorship precedes the crown's right by forfeiture.

This construction of a virtual duration works according to the same logic as the establishment of duration through the dramatic fictions of Hamlet, and in particular through revisions which in the F text of the play dilate the time between Hamlet's cue to action and his performance of that action.(46) It is a duration opened within elements of the structure of action; and, like the notorious delay or dilation of the play as a whole, it acts as a sort of buffer mediating between selves and acts by opening up within an instant a space of time in which differences and priorities can be discerned, invented or rationalized.

This pattern is also manifested in the defendant's counter-argument. After the sketch of the tripartite structure of action quoted above, Petit's attorneys go on to agree that "the doing of the Act is the only Point which the Law regards; for until the, Act is done it cannot be an Offense to the World, and when the Act is done it is punishable."(47) But Petit must claim that the forfeiture was sustained before, not after, Hales's death -- that is, that "the Act was done in his Life-time, and therefore the Forfeiture shall have Relation to his Life-time, viz. to that Time of his Life in which he did the Act that took away his Life." He must therefore argue that "in every Act . . . the Law has respect to the Beginning," in other words that as a matter of law the act may be regarded as deriving its felonious quality from the circumstances -- in this case, specifically, that mens rea requisite for the commission of felony homicide -- in which it was initiated.(48) Petit's attorneys go on to offer as precedent a case in which a servant conceived malice for his master, left his service, and a year later killed him. This was found treason (a servant killing his master), "and yet he was not his servant when he killed him, but the law had regard to the Beginning, and the Cause of killing him."(49) As in the Plaintiff's argument, the duration of action must be fictionalized in order to make possible a particular organization of events within that time: forfeiture must be located before death, even though it is acknowledged as in fact occurring only at death.

Where the plaintiff established duration through a succession of instants, the defendant did so by redefining "the act" in such a way as to project backward onto its origin its felonious character, an operation that depends on intention (here technically malice prepense mens rea) to sustain duration as a teleological construct apparently the opposite of the momentariness into which the plaintiff analyzes the same act. Both, however, effectually hypostatize intention in distinguishing it from the action in which it issued; and it is this hypostatization, I want to argue, that is the condition of the entry of the legal discourse of intention into Hamlet. In order for intentions to enter into circulation as tokens within a general symbolic economy of liability, in other words, they must be conceptualized as detachable or modular.(50)

The particular fictionalizations of intention in the arguments of Hales v. Petit were made possible by a much broader increase in the sophistication of legal conceptualizations of intention, a change most clearly visible in criminal law in the emergence, during the sixteenth and early seventeenth centuries, of the related concepts of implied and transferred malice.(51) These concepts straddle the line between law in which ascertaining intent as an index to culpability depends on the premise that the actual state of mind of the defendant must be calculated, and law based on conventional or objective equivalences that dispense with the need to investigate intentions or states of mind. In the law of transferred malice the leading decision of the period was Saunders's Case (1575).(52) John Saunders had attempted to murder his wife by giving her a poisoned apple, which she in turn gave to their daughter who, eating it, died. The issue was whether he could be found guilty of murdering his daughter, whom he had had no intent to poison. The offense was judged murder, for Saunders "gave the Poison with an Intent to kill a Person, and in the giving of it he intended that Death should follow. And when Death followed from his Act, although it happened in another Person than her whose Death he directly meditated, yet it shall be Murder in him, for he was the original Cause of the Death, and if such Death should not be punished in him, it would go unpunished; for here the Wife, who gave the poisoned Apple to her Daughter, cannot be guilty of any Offence, because she was ignorant of any Poison contained in it."(53)

Clearly the justices are trying to reconcile natural law, which obviously calls for Saunders's punishment, with the law requiring intent (prepensed malice or mens rea). To achieve this, they must resolve intentional action into two parts: "For the End of the Act shall be construed by the Beginning of it, and the last Part shall taste of the first, and as the Beginning of the Act had Malice prepense in it, and consequently imported Murder, so the End of the Act,

viz. the killing of another, shall be in the same Degree, and therefore it shall be Murder, and not Homicide only."(54) Intent, detached from the object toward which it is directed (Saunders's wife), can be reattached to the actual event (the death of the child); but in this shift it has been emptied of any content, as becomes clear in an inexact hypothetical advanced by the justices: if a man lay rat poison without intent to kill anyone, he is not guilty of felony; but if he lay it "with an Intent to kill some reasonable creature and another reasonable Creature, whom he does not intend to kill, is poisoned by it," then he is guilty of felony. If, like the man laying rat poison, or like a robber bent on achieving his ends at all costs, Saunders had resolved to kill whomever he could, then the content of his intent would have included an intent to kill his daughter. But he did not have an intent to kill "some reasonable creature": he intended to kill his wife. It cannot be asserted that his killing of his daughter was intentional without decisively fictionalizing the meaning of intent, and this is what the justices do in asserting, in effect, that the death was intentional by law.

The more general fiction of implied malice responds to the obvious difficulty of determining whether or not someone had acted with malice prepense. Mackalley's Case (1611), in which an accidental slaying of a constable was judged murder, was a landmark case in the development of the concept of implied malice.(55) By the time of Coke's Third Institutes (published in 1628 but compiled earlier) implied malice had assumed a fully fictional form that could dispense in certain cases with epistemological worries altogether: murder is now defined as killing "with malice forethought, either expressed by the party or implied by law."(56) Coke goes on to enumerate the different situations that imply malice (killing by poison, killing a magistrate, etc.). Here the objective structure of the act itself, quite apart from the actual or manifest intent of the actor, implied an objectified, fictionalized mens rea. In only some of the situations (for example, poisoning) is the fiction probable, and therefore technically a legal presumption; in others it is openly fictional.(57) These developments do not contradict the principle that actus non facit reum nisi mens sit rea; but in objectifying the meaning of mens rea they do alter its meaning significantly.

All malice prepense is fictitious in the sense that accounts of intention always involve the fictional reconstruction Aristotle calls hypothesis; but transferred and implied malice are also fictions in the strict sense, since they were accepted, implicitly, as such. Judges and lawyers must have understood, for example, that in findings of transferred malice, malice hadn't really been "transferred," for what could that mean? Certainly it did not mean that the defendant's intent to kill one person became intent to kill another. What is transferred is not malice, but the consequence of an act based on malice, and the transfer is accomplished by the judge or jury rather than by the defendant in the commission of the act. In effect it is the will of the legislator, judge, or the law itself that is being substituted, in a weird way, for the intention of the defendant. These devices work by detaching, circulating and reassigning intentions, suspending predication in order to manipulate it. In transferred malice modularity implies exchangeability, according to certain rules of recombination, among subjects, actions and intentions, while in implied malice the intention is invented as modular and then attached. In both there is an interdependence of floating and attachment; the goal is definite attribution (or reassignment) of liability or responsibility, but the means is the floating.

In the Foucault passage I began with, the notion of non-subjective intention is part of the argument that power's constitutive gesture is to elude attribution and escape predication: it is not so much that it disguises its origin or conceals its source as that its detachment from origin or source is always already achieved: a given of the grammar of power is verbs of purpose, strategy, and intent that lack grammatical subjects. The floating is not a transitional or contextual variable but an absolute of the structure of social reality. If this is so not because the subject no longer exists but rather because the subject as such is predicated on an absence of predication, then the much discussed emergence of the (modern, bourgeois) subject at the end of the early modern period may be a condition or consequence of the modularity of intention evident in the legal texts I've been discussing. The unmooring in Hamlet of utterance from both reference and an originating agent ("This answer is not mine," says the King to Hamlet; "No, nor mine now," Hamlet replies) would then participate in the general system that enables the structural detachment by which Hamlet's self-summarizing "I have that within which passes show" cancels itself in the paradox of performing what is constituted as beyond performance, a cancellation that, of course, constitutes the subject as at once an unfulfilled promise of depth and as an inhabitant of a dimension supplementary to wholly transparent performance.(58) Because performance has the same convolved temporal structure as intentional action, it conceals what it exposes in a temporal fold; the structure of Hamlet's preposterous account of his actions is the structure of an interiority that, always spatially and temporally displaced, is never quite there. If the immediate issuance in action assumed in the Aristotelian practical syllogism ensures the coherence of a subjective hexis constituted as an exteriorized accumulation of a person's actions, then Hamlet is the story of the failure of this immediacy; the temporary removal of intention from its dependence on the agent corresponds to the rift, opened up within the immanence of action in intention, from which the dramatic duration of Hamlet emerges as the disclosure of the structural difference between acting intentionally and intending to act.(59)

Dramatic duration materializes in the articulations exposed in a disjointing of the temporal folding that structures action; in the legal context similar dissections, responding to a broadly similar need to assign liability, reveal the same structural complications evident in the relation between Shakespearean composition and the composed artifact, and in the structure of accounts of intentional action generally. Thus, for example, in finding for Cyriack Petit, the court in the Hales case endorsed the defendant's orthodox identification of the legal meaning of an act in its beginning, and clarified the logical operation this entails while at the same time revealing the pragmatic basis on which the decision in fact rested:

The Forfeiture here 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 Life-time, and this Act was Felony.(60)

The decision reflects both expediency and common sense, since you can't punish a dead man, but it also skirts the central issue, namely, how the act can be felonious before it is completed in the realization of its consequences. This difficulty is reflected in the identification of felony with the doing of something feloniously:

And the Indictment says, and may say, that he feloniously threw himself into the Water; for that which caused the Death may be said to be feloniously done. And therefore if one strikes another, so that afterwards he dies of it, the indictment ought to say that he struck him feloniously. So that the Felony is attributed to the Act, which Act is always done by a living Man, and in his Life-time.(61)

This line of reasoning finally necessitates the following formulation of the structure of the felonious act:

So that by this Relation of the Forfeiture which has a Retrospect to the Act done, the Law inflicts a Punishment upon the living Man for the Act done in his Life-time, which was the Cause of his Death afterwards. |Et issint per ceo relacion que respect arrere le ley inflict punishment come il est en vie aprez le act fait en son vye que engender mort apres.~(62)

Again the fact that the determination seems commonsensical obscures the logical problem, which inheres in the notion that the forfeiture "has a Retrospect to the Act done" ("respect arrere"). As we have seen, an action is intentionalized in part retrospectively, in terms of its issuance as an effect; the mens rea represented as inhering in the action from the moment of its inception in fact only comes into being as a result of a structurally retrospective construction of the act, whether this rationalization occurs anticipatorily in which Schutz calls the future perfect tense, or whether it in fact follows performance. In pursuing a judgement understood as consistent with natural law the court is forced to rehearse formally the logic implicit in the appearance of "Hum" in the F text of Hamlet. In the latter case it was the mutual interference generated by competing logics of action that forced "Hum" into the textual environment from which it would otherwise have been excluded; here the logical and rhetorical pressure placed on the structure of action by the representatives of competing legal objectives deforms ordinary assumptions about action in order simply to accomplish the division of liability consequent to those very assumptions. The structures that invisibly subtend practice are precipitated in discursive form when they are put under various sorts of pressure that produce a rift or fissure in representation. In each case this rift is opened by a system of interference -- in "Hum" a competition between the representation of Shakespeare's cognition and Hamlet's, and in the law case a competition between two rival accounts of the same action, deployed as part of particular strategies with determinate, opposed ends.


What this means is only that, for whatever reason, problems in the representation of action similar to those that structure Hamlet also inform the context from which the Hales material apparently derives. To move beyond this analogy requires also moving beyond the tendency of critics to discuss the presence of the Hales material in Hamlet as an instance of the familiar theatrical parody of legal language. Parodic elements are of course easily detected; yet this is a form of parody in which the subversive wit that rises to the occasion, whether it is Hamlet's or the Gravedigger's, is never quite distinguishable from its object. Legal language enters the play under the aspect of parody, but carries with it so high a charge of verbal energy that it seems both to generate and to release itself from the attack against it. Legal quibbling, the obtuse wit characteristic of Shakespeare's clowns, and the acute wit characteristic of Hamlet, are all much alike in their deformation of language and the human action represented in it.

The methodology by which the question of the relation is posed in terms of parody presupposes that the law and the theater represent competing representational jurisdictions locked in a struggle for control over discursive material and jurisdictional authority; in this scheme the theater appropriates legal material simply by parodically turning it to its own purposes. The appearance in 5.1 of legal structures not derived from the Hales case suggests, however, that this account of the process of appropriation is inadequate. The scene opens with the Gravedigger asking whether Ophelia, having "wilfully" sought her own salvation, may properly receive Christian burial. To the reply that the coroner has determined she may, the Gravedigger asks how this can be, "unless she drowned herself in her own defense?" (5.1.6-7).(63) Upon being told

that indeed this had been found to be the case, he remarks that if so, "It must be se offendendo, it cannot be else" (5.1.9) -- apparently a mistake, editors remark, for se defendendo, the legal term for self-defense. This scrambling of legal categories makes clear sense in non-legal terms: killing oneself is, in these terms, a form of self-defense (as the exemplary narratives of justifiable suicides, like that of Lucrece, make clear); and it is also of course nevertheless appropriate to think of suicide as an offence se offendendo, an offence against oneself. But the joke in part depends on its not making much legal sense in connection with suicide. Commentators tend thus to conclude that "Shakespeare uses law for his own purposes," which is in effect to assert the independence of Shakespeare's use of legal material from the logic of the context from which that material is drawn.(64) It is certainly true that Shakespeare is not committed to conform to this context, and that he is largely free of the professional dynamics in which it was produced; and one could argue that the theatrical enterprise collectively maintains a separate jurisdiction in which its own authority manifests itself in the maintenance of representational conventions, norms, and equivalencies.

But rather than treat the appearance of legal material in the play as an instance in which discursive material crosses a clearly marked boundary between jurisdictions driven by distinct and opposed professional forces, or as a confrontation of opposing interests in an essentially parodic mode, I want initially to consider the intersection of these jurisdictions as a matter of professional alignment (one that derives in part from the common rhetorical basis of legal and theatrical practices), and as the superimposition of different deployments of a common or continuous language of human action. This is not to suggest that theatrical and legal strategies are identical, or that they are not in conflict, and it is not to raise the question of the ultimate relation of the theater to institutions of power. It is rather to bracket certain assumptions about the relation between law and literature, and to look again at how the logic of the law and the logic of the play are related.

Let's reconsider, then, the Gravedigger's conclusion that if Ophelia killed herself wilfully but is nevertheless to be allowed Christian burial she must have died se offendendo. This conclusion glances at the fact that the only non-capital form of voluntary homicide was homicide committed in self-defense; and this in turn restores a lost connection between se defendendo and the crime of felo de se. Late sixteenth and early seventeenth-century treatises on criminal law associate these categories in the manner described by Fernando Pulton in his De pace regis (1609):

If a man doe strike another to the ground, and then draweth his knife to kill him, and the defendant lying upon the ground draweth his knife to defend himselfe, and the assailant is so hastie to kill the defendant that hee falleth upon the defendants knife, and so is slain: In this case the assailant is felo de se, for hee had an intention to kill, though not himselfe, yet the Defendant.(65)

One man's self-defense becomes another man's suicide. This construction of a homicide as an act of self-defense translated in turn into a suicide originated as a mitigating fiction used by medieval juries to help those patently guilty of a simple slaying avoid the rigor of the law of homicide, which had as yet developed no intermediate category between accidental killing and murder with malice prepense. The jury would maintain that the attacker had run himself through with the defendant's weapon, the defendant having supplied no motion.(66) It was among the most common jury fictions of the fourteenth century, but had fallen out of use by the mid-1500s (in part because of the rise of manslaughter) while nevertheless surviving in texts like Pulton's.(67)

The Gravedigger's next demonstration seems to reflect this fictionalization of se defendendo as felo de se, even as it appears to adapt it to the circumstances of both Ophelia's death and that of Sir James Hales:

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. (5.1.15-20)

This rhetoric of splitting and inversion in accounts of the patterns of action involved in human deaths speaks, obviously, to issues of agency that have always been recognized as important to the play and accentuated in its problematic resolution: the structure of the characterological transformation or discontinuity that intervenes during Hamlet's exile and propels him to his end; the question of the extent to which he is himself an agent in that end, catapulted somehow into something like what Ricoeur calls a "present of praxic intervention"; the complicated accumulation of agencies in the final deaths, and so on.(68) New Arden editor Harold Jenkins, unlike some of his predecessors, recognizes that the passage does not have a source in Hales v. Petit. He calls Shakespeare's use of it here "brilliant," and perhaps it is; but we must recognize that Shakespeare's wit is anticipated by the law's own institutional wit.

So the way to describe this complex moment in Hamlet is to say that Shakespeare wittily recombines two terms that were already combined, also quite wittily, in the law. The account of Ophelia's death as having occurred se offendendo represents the collaboration of two fictions: a legal fiction, originating in the jury practice of an earlier century, that reassembles self-defense as suicide, and a dramatic fiction, issuing in the Gravedigger's malapropism, that translates self-defense as self-offense. This double fictionalization thus marks as a site of refictionalization the point at which legal fictions of action enter the play. Legal material is troped when it enters dramatic discourse, but it is already inscribed with the pattern of this transformation; the relation between the two discourses is thus characterized here as an alignment between two implementations of metaphor. The inversion in which self-defense becomes self-offense repeats, with a twist, the inversion of agent and patient in the prior fiction. This twist -- the inexactitude of the repetition of the prior troping -- itself constitutes a metaphorical transformation, and strictly speaking it is in this third metaphorical element that the structure of the shift from the legal to the theatrical should be sought.

Again, however, the doubling operation that occurs at the site of entry of legal material into the theatrical context is itself already anticipated in the legal text. Pulton continues his account of the felo de se defense: "And so as the death intended by him |i.e., the assailant~, was by his hast transferred from the defendant to himselfe, so is the name of a murderer transferred to felo de se."(69) This faintly playful conclusion, which rationalizes earlier accounts of the fiction by means of transferred malice (at the time a relatively new concept, as we have seen), discloses particularly clearly the translational and metaphorical quality of the operation. Transferred malice provides a conceptual framework in which it is possible to say that intention (that is, the intended death, or malice prepense) is something that can be "transferred" from one object to another, through the quasi-mechanical instrumentality of "haste," as though it were a kind of bodily or material substance communicated, like sweat, in proximity and exertion; intention is seized on and inserted into a fully fictional logic of action. On the other hand, Pulton's apparent indulgence in wit perhaps signals a vague ambivalence about this fictionalization, an ambivalence objectified in the structure of the analogy between the transference of intention from one object to another and the transference of a legal subject from one category of culpability to another: the analogy itself initiates a transference (a metaphorical carrying over, apparently by means of a quasi-causal mechanism) from the relative positionality of a legal actor within a logic of action, to the absolute location of the legal subject within a grid of legal categories. This last transference marks out the space in which the classical question of the relation between a person's identity and his acts is posed (the relationship Hannah Arendt refers to as the "disclosure of the agent in the act"); but it also problematizes this space in the stress under which it places the notion of transference, which denotes a process of deflection in the first case, and one of substitution in the second.(70) Different economies of agency organize the two instances: in the first case the agency seems clearly that of the murderer, turned against itself; in the second this introverted agency is aligned with that, turned just as precisely against the murderer, of the collective will of the legal apparatus and its authority to dispose of its subjects according to the names it gives them. The appearance of this latter alignment reminds us that in Pulton's account of action the murderer's own agency is itself similarly a fiction imposed upon him from without.

The fiction of felo de se, then, depends on the very conditions that enable its entrance into the theater; and it displays features that identify it with certain aspects of theatrical representation: it tends to reify intention and to conceptualize it as modular; it plays on the translation of identity into action and action into identity; and its exculpatory effects are corollary to fictions that by design problematize the relation between personal action and representational authority. There are of course differences. The jury fiction exculpates through an economical location of agency: the killer turns out to be already dead; he both can't be, and already is, punished; and because in incurring his punishment he has also anticipated it, the act produces one unit of surplus legal credit that in effect can then be applied to the account of the defendant. The theatrical fiction, on the other hand, assimilates this economic operation into Hamlet's self-exculpatory project, and into a process of anticipatory mourning that involves the invention and organization of the fictions of Ophelia's death and their integration into the wider concerns of the play.(71)

Beneath the different strategies in which each is deployed, however, both legal and theatrical fictions manipulate liability in a suspension of closure sustained by the glissement of metaphorical language. It is not, then, that the theater, by inverting or otherwise distorting legal terminology, subverts a monolithic legal positivism whose fictions are bent on the swift and sure classification and disposition of cases. Disposition may be the ostensible objective of legal practice, but the language of the law reflects the constitutive negotiations by which competing collective interests deploy legal fictions that suspend, defer, invert, displace, substitute, and generally manage particular liabilities as part of general strategies of political and representational authority.(72) The very process by which the medieval jury fiction of self-defense, which was only reluctantly accepted by the bench, found its way into sixteenth and seventeenth-century textbooks of the law, suggests an internal redistribution of the authority to issue fictions of action and to ensure their currency, at the same time that it seems to have been part of a much wider process by which the Tudor government appropriated the quasi-judicial discretion of the jury and reinvested it in the pardon system, in which royal power could be deployed with maximum theatrical effect.(73) Hamlet's similar appropriation and transformation of legal language and legal concepts could be read both as substituting a theatrical authority for the authority juries were increasingly deprived of, and as a diversification of the earlier, governmental appropriation, a sort of colonization of the theater by the language of the law, in which local destabilizations of state interest were reabsorbed in the residual capacity of legal language to reassert a normative influence despite the deformations its new context subjected it to. Any choice of one option over the other would be radically speculative, not least because the political instrumentality of the legal devices in question is itself much disputed.(74) Moreover, while claims might be made for the broad significance @ @
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Title Annotation:legal property case of Sir James Hales and Cyriack Petit
Author:Wilson, Luke
Date:Mar 22, 1993
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