A Defiance of the Law

The law was absolute: murder, as such, was never justified. Even if a man's entire family had been brutally massacred by the most vicious criminal, even if the magistrates themselves were so corrupt that they knowingly would let the guilty go free -- even then, the man who planned and executed the death of the murderer would be equally a murderer in the eyes of the law. English law allowed only one exception. Instant retaliation for an injury was adjudged manslaughter, on the grounds that it was unpremeditated, and in the Elizabethan period might be forgiven by royal pardon. --Eleanor Prosser, Hamlet and Revenge, Stanford, CA, Stanford Univ. Press, (1967), p. 18

Elizabethan England congratulated itself on having made the transition from a legal system which tacitly condoned revenge to one that abhorred it. In his book on revenge tragedy, Fredson Thayer Bowers states that the absolute injunctions against revenge replace an older order where revenge was more the rule than the exception.

In the first inception of revenge the injured person alone was concerned with the return of the injury. There was no question of right or duty but merely one of strength...With the growth of some sense of social consciousness there came a corresponding development from force to right in the theory of revenge. --Fredson Thayer Bowers, Elizabethan Revenge Tragedy, 1587-1642, Peter Smith, Gloucester, MA 1959, p.3.

Interestingly enough, Denmark was seen as a country where the historical progress away from the practice of private revenge and toward laws forbidding it was particularly slow. Like a fictionalized Italy, it seemed to provide fertile ground in the English imagination for revenge drama.

Progress was not always sooth. The intense individualism of the Danes and their more primitive civilization gave them a temporary setback toward the forward movement... Private war, however, did not lose its legal sanction until the first half of the fourteenth century when the exaction of revenge by an individual began to be considered exclusively a crime against the state. And for many years individuals continued to value their own privileges far more than the common weal. --Fredson Thayer Bowers, Elizabethan Revenge Tragedy, 1587-1642, Peter Smith, Gloucester, MA 1959, p.6.

According to Bowers vestiges of an old permissiveness toward revenge were still aglow in Elizabethan times -- particularly amongst a nobility which took pride in notions of individuality and autocracy. He notes that open assault and duels were still in practice, in defiance of the laws which categorized revenge as murder. These occurrences were, however, exceptions to the accepted legal rule.

Another exception was provided for within the law itself. The pardonable offense of manslaughter allowed for legal exceptions to the otherwise inflexible rule against private revenge -- particularly for an aristocracy more likely to receive a royal pardon.

Private blood-revenge, because it necessarily arose from malice prepense, had no legal place in Elizabethan England. The only possible private retaliation at all countenanced was the instantaneous reaction to an injury, which was judged as manslaughter and a felony but which carried the possibility of royal pardon. --Fredson Thayer Bowers, Elizabethan Revenge Tragedy, 1587-1642, Peter Smith, Gloucester, MA 1959, p.10.

It might have been argued in court that Hamlet's murder of Claudius came in immediate response to the murder of his mother and the uncovering of the King's treachery. The play's audiences, however, would clearly understand that Hamlet gave the murder a considerable amount of forethought, and that the deed then met the Elizabethan requirement for first degree murder.