“O, good! convey! Conveyers are you all,
That rise thus nimbly by a true king’s fall.”
Richard II
A fraudulent conveyance occurs when someone in debt places his or her property out of reach of his or her creditors’ process. The ethical idea behind the legal concept of a fraudulent conveyance is that integrity is preferable to generosity.1 A person should not give away property until all debts are paid. Both ethical and the legal concerns occur in Ben Jonson’s play Epicene, when the character Truewit describes the conveyances some women make before marriage. “This, too, with whom you are to marry, may have made a conveyance of her virginity aforehand, as your wise widows do of their states before they marry, in trust to some friend, sir, who can tell?” (II. ii. 123–126). Truewit’s quip reflects the actual law. Throughout the seventeenth century, a woman’s efforts to convey her property to trustees before marriage were judged to be fraud against the marital rights of the future husband.2 But Truewit’s comparison is also meant to be clever, as his name implies. Virginity cannot be conveyed in a legal sense; a court cannot order it returned to the injured party. No property is literally transferred. Yet the comparison to a fraudulent conveyance is apt. It is not just Ben Jonson’s knowledge of the law that we admire in this passage, but his literary conceit.
Even though Ben Jonson’s play was first performed in 1609, the strain of the comparison recalls the moral anxiety about fraudulent conveyances typical of the literature that developed during the legal crisis of 1571 to 1601. But if the ethical dilemmas raised by the problem of fraudulent conveyancing did not cease completely in 1601, when Twyne’s Case was settled, they did not begin in 1571, with the passage of 13 Eliz., c. 5. The concept of fraudulent conveyance occurred in Roman law.3 It arose in canon law, where the pauper status of clerics complicated the collection of debts.4 It had a noble history in England, where complex legal mechanisms were constantly devised to frustrate judicial processes that sought to take property for the benefit of creditors. From the time of the Magna Carta, the Parliament of England regularly protected royal interests against fraudulent conveyances. A series of statutes provided remedies against mortmain, subinfeudation,5 conveyances to defeat a lord of his wardship,6 fraudulent deeds used by those accused of treason to protect family property, as well as other devices, some still being invented in Shakespeare’s day.7 There were laws, indirectly related but drawing on a similar vocabulary, against dilapidations, conveying sheep into Scotland, and carrying away heiresses.8
Taking sanctuary was another part of the time-honored method of seeking to escape financial liabilities. The early Roman comedies of Plautus typically feature a slave or prostitute seeking protection in the temple of a god. During the middle ages, canon law and the Church in England provided havens for harried debtors. King Edward I tried to counter this practice by passing a law to limit the use of sanctuaries for fraudulent debtors.9 A century later, Edward III added to the law against conveying bodies to safety a measure designed to stop conveyances of property. His new bill, passed by Parliament in 1379, targeted those who avoided payment of debts by giving their tenements and chattels to friends. These friends or relatives in turn would kick-back profits and income, while the debtors found some safe haven.10 But the bill had limits. As William Roberts explains, the statute extended only to those who put their property in trust before flying to sanctuary, but as long as they were exposed to execution, “such sale or assignment was not fraudulent within that act.”11 This limitation follows the general rule that fraudulent conveyances are valid transactions and cannot be undone unless a creditor raises a complaint.
In the case of those who sought sanctuary, conveyance has a double sense. First the debtor conveys himself to a safe place. At the same time, he might transfer his property to a friend or accomplice. These two senses of the word are related insofar as the transfer is secret or done to deceive. Spenser and others most often use the word “convey” in the sense of transferring something in secret. Duessa claims that her promised husband died and his body was “convaid / And fro me hid” (Faerie Queene I. ii. 24). It is likely that when Richard II says that Bolingbroke and his henchmen are all “conveyors,” he is commenting on the odd combination of secrecy, moral ambiguity, and self-interest that prompts their conspiracy to remove him from the throne.
Despite a long history of statutes against fraudulent conveyances, a new law was passed in 1571. The language of the statute – still present in the law of many US states that include the key phrase “delay, hinder, or defraud creditors” – forbids
fraudulent feoffments, Giftes Grantes, Alienations, Conveyances, Bondes, Suites, Judgments and Executions as well of Landes and Tenements as of goods and Cattells [i.e., chattels]… devised and contrived of malice, fraud, covin, collusion or guile, to the end, purpose and intent, to delay, hinder or defraud, creditors and others of their just and lawfull Actions.
(13 Eliz., c. 5; my emphasis)
Later lawyers found 13 Eliz., c. 5 the most significant of all the fraudulent conveyance statutes. Sir Edward Coke, the queen’s attorney general, gave the statute two readings, in Packman’s Case (6 Co. Rep. 18b [1585]) and Twyne’s Case (3 Co. Rep. 80b [1601]), clarifying certain phrases and making the statute an essential feature of future legal thinking. The legal historian Garrard Glenn argued that Coke twisted the purpose of the statute, which was not to protect creditors, but to protect the interest of the Crown in land, especially the land of Catholic recusants. Despite Glenn’s misgivings, I will show there was a commercial purpose to the statute; in fact, whatever the hidden motives the government had for shepherding 13 Eliz., c. 5 through Parliament, the legal cases that followed in the next generation invariably cited it in commercial contexts.
Partly political, partly commercial, the law of fraudulent conveyance provides an interesting insight into the ethical workings of Renaissance England. Although laws against fraudulent transfers of assets occur in every society that recognizes the obligation to pay debts, it is also true that civil societies have a certain tolerance for people who devise means to avoid the clutches of creditors. Anyone who appears unfairly oppressed by circumstances or misfortune will arouse sympathy. Creditors must be paid, or no one can do business. But what looks fraudulent from the creditor’s perspective may, from the debtor’s angle, seem to be a legitimate way to protect property – a family inheritance, for example – or defend against a powerful enemy, such as the state. Depending on the circumstances, we will sympathize with either the debtor or the creditor, love or hate Shylock, laugh at or despise Falstaff. Our changing reactions to such literary figures help us recognize certain ethical questions that society confronts.
The initial focus of the New Historicism involved the interrelationship of the court, theatrics, and the projection of royal power. If there was a single quote that summed up the queen’s concerns, it might be her admission, on the eve of the Essex conspiracy, that “I am Richard II, know ye not that?” Richard II had been deposed in 1399, just as the earl of Essex wished to depose Elizabeth two centuries later. A look back at the source of the queen’s remark will help us remember that there was more to England than the court and that commerce did not begin with the Industrial Revolution. The rise of mass production during the nineteenth century created the opposed camps of Capital, in the form of management, and Labor, often represented by unions.12 These terms, particularly as they developed in Marxist thought, came to dominate our thinking in the twentieth century, but the roots of commerce and the problems of finance, although on a smaller scale, nonetheless stretch back through English history. The queen’s famous comment comparing herself to a previous monarch actually occurred during an interview she held with William Lambarde, the aging author of the Perambulations of Kent, a book that set the pace for the study of English geography and customs. Lambarde also wrote a book titled Eirenarcha (1581), on the duties of justices of the peace. During their conversation, the queen complained about her political difficulties. But she also showed an interest in finance, at one point asking Lambarde the meaning of praestita. He told her it was money lent by her progenitors to subjects on bond for repayment. She then asked if redisseisins were unlawful and forcible, when they threw men out of their lawful possessions. Lambarde answered yes, and that there were rolls of fines levied on such evil doers. The queen then commented that “In those days force and arms did prevail; but now the wit of the fox is everywhere on foot as hardly a faithful and virtuous man may be found.”13 Falstaff could not have said it better.
The queen’s interest in finance reflects the movement of England away from subsistence farming into a more vital economy. Lenders were necessary in the absence of banks.14 Commerce was growing. Thomas Gresham bought ground for his Exchange in 1565, finished a building there in 1567, and hosted the queen for dinner in 1571, in the same season in which Parliament passed 13 Eliz., c. 5.15 As always, politics and commerce were combined in the queen’s affairs. In a typical set of instructions sent by Elizabeth to Henry Sidney, Lord Deputy of Ireland, she asked him to try to “compound” with merchants to whom she owed money because “a greater number of merchants of that realm do usually compound with the captains and other our creditors of that realm for divers sums of money much less than the principal debts are.” The queen, it seems, was either an astute business woman or a methodical welcher.16
If there was no bright line between politics and commerce, it was because politics reflected the concerns not just of the nobility but of the gentry. The gentry opposed any laws that inhibited their freedom to make family settlements or secret conveyances of their property. Lawyers obliged by finding ways around anything that interfered with their profits. Fraudulent conveyancing laws, like all the changes in land law in sixteenth-century England, reflect the character of society.17
If, as Richard Weisberg claims, “literature provides unique insights into the underpinnings of the law” and if the main literary texts treated in this book provide such insight into the practice of fraudulent conveyance, nonetheless Richard Posner rightly warns us about a fundamental incompatibility of the outward structures of the law and works of fiction.18 This incompatibility requires us to make three critical assumptions that separate literature from the law. First, we presume organic unity in a work of art – that the various actions that comprise the plot express a single theme – in contrast to a series of separable issues that compose legal thinking. Second, we regard works of fictions not as legal briefs about fraudulent conveyance but as dramatic presentations of what lawyers today call the “public policy” to which laws eventually conform. Third, we recognize that in a work like Shakespeare’s Merry Wives, bourgeois characters use mercantile and legal language even when the matter is not mercantile and legal, so sometimes they talk literally and other times metaphorically. In that play, such characters serve as foils to Falstaff, who seems sometimes out of touch with, but sometimes perceptive about, certain matters of fraud.
We tend to take for granted that the language of debtor and creditor provides an appropriate metaphor for the relationships of lovers. One of themes of this book, however, is that the metaphor was fresh in Shakespeare’s day. As society struggled with the limits of fraud, poets and playwrights found a set of metaphors to hand in finance. The following example from Shakespeare’s Two Gentlemen of Verona suggests, moreover, how the problem of the literary representation of fraudulent conveyancing was solved: Proteus owes his heart to Julia, but while visiting Milan he falls in love with Sylvia. He forgets Julia and tells Sylvia he has given her his heart. Can Julia void his gift? In other words, can Julia claim the equivalent of a fraudulent conveyance and seize back the heart of Proteus from Sylvia? One may find a form of this reversal in Julia’s refusal – during a complication of the plot in which she disguises herself as a pageboy – to give to Sylvia a ring that Julia herself had earlier given to Proteus as a pledge of her love. Julia cuts off Proteus’s attempted conveyance, for it was fraudulent Proteus who urged her to deliver the ring to Sylvia, whom he prefers to Julia. Elsewhere, too, in Shakespeare’s plays the giving or accepting of rings shadows in a curious way the possibilities of conveyances, deceptions, and fraud.
Although Julia is the only one who would have a cause of action were the plot of the play recast in terms of a transfer of property and a real court case, The Two Gentlemen of Verona is a play about frustrated conveyances, and its plot allusively suggests an awareness of the law. Not only does Proteus return to Julia, but earlier he himself exposes Valentine’s plan to elope with Sylvia – it is a type of conveyance. Sylvia’s father, the Duke, moreover, uses the appropriate language when he signals his awareness of the lovers’ plot. He pointedly asks Valentine to help him understand how to he can “best convey” a ladder to reach a woman he claims to love (III. i.128). In another instance, Proteus, who wants Valentine out of the way, offers to “convey” him through the city gate (III. i. 253). Finally, Speed’s puns on ships and sheep carry distant echoes of the laws against fraudulently conveying sheep out of England (I. i. 72 ff.). Even Launce’s dog Crab gets into the act by lifting his leg under the Duke’s table, frustrating Proteus’s heartless attempt to give him as a gift to Sylvia. Shakespeare’s Two Gentlemen of Verona illustrates how literature reflects and can add to our understanding of society’s attitudes. On the one hand we have a lighthearted comedy. On the other, the plot (where a man named Valentine becomes an outlaw) and the language of the characters, with names like Proteus, coincide with questions about how changes in law influence society, why people disobey a law, and how they reconcile the difference between what they believe and what they do.
Fraudulent conveyances are always contested issues, even today, because to determine intent a court must usually rely on secondary circumstances, some of which will offer conflicting evidence. Such conflicts form the basis for Shakespeare’s veritable fantasia on the theme of fraudulent conveyancing, The Merry Wives of Windsor, a play that was first written before Twyne’s Case and then rewritten afterwards, perhaps more than once. Not only do physical conveyances contribute to the plot, but – as Patricia Parker has shown, in an article that was much on my mind when I first came across fraudulent conveyancing in a legal context – metaphorical conveyances, including the very concept of metaphor, construct the complex verbal world of the play.19 This comedy provides more convincing references to fraudulent conveyances than any other work, yet the metaphors remind us that here, as in the other works, the literary use of the law is suggestive rather than precise.20 The Merry Wives of Windsor is about fraud and deception and ethics in a general sense, but it also refers with some precision to the narrower legal topic of fraudulent conveyances. Mistress Page’s legal language suggests that she is an astute woman who recognizes the delightful way Falstaff’s carriage in a buck-basket parodies the practice of fraudulent conveyancing. Mr. Ford conjures a form of “constructive” fraudulent conveyance when he compares making love to someone else’s wife with building on another man’s land. The Host of the Garter Inn takes over Bardoloph’s employment to help Falstaff manage his affairs. Compared to these characters, Falstaff appears curiously retrograde in his awareness of legal matters: the end of the Folio version holds up the possibility that Falstaff, said to owe Ford £20, has missed an opportunity to fraudulently convey his horses. In each case the play draws on a common issue in the legal thinking of sixteenth-century England.
The second chapter of this book looks back at the history of the law with which Shakespeare shows himself so familiar. It argues that this social practice, as well as the commercial purpose of 13 Eliz., c. 5, was at least as important as political motives when the bill was passed in 1571. It would seem as if the new law responded to a series of land appropriations that followed the Northern Rebellion of 1569, but a close look at some of the figures involved fails to prove that the statute was part of a new wave of persecutions against Catholic conveyors.
Chapter 3, while sketching in the historical and cultural background just before and after the passage of 13 Eliz., c. 5, finds evidence of a laissez-faire attitude toward fraudulent conveyancing in the works of Philip Sidney, as well as in the life of his father, Henry Sidney, who served for years in Ireland, where fraudulent conveyancing had an eventful history. Both men were typical of the period in that they regarded a man’s conveyancing as his own business and were unable or unwilling to resolve the moral dilemma it raised. Sidney’s openness to conveyancing finds expression in the plot of his Arcadia, where his heroes carry away a pair of eligible princesses. Sidney’s plot innovation probably lies behind other literary elopements, since his work was read by both Spenser and Shakespeare. In The Merry Wives of Windsor, Anne Page elopes with Fenton, while in The Merchant of Venice, a play that also shadows some of the problems of fraudulent conveyancing, Shylock’s daughter elopes with Lorenzo and Bassanio wins an heiress by contracting a debt.
Edmund Spenser, the subject of Chapter 4, shows a far sterner attitude toward fraudulent conveyances than that of the Sidneys. As a state functionary, Spenser exemplified the connection between the tax power of the state and creditors’ rights, and he was obsessed by fraudulent conveyances. His View of the Present State of Ireland raises an outcry about the need to prevent them. Spenser attended the Irish parliaments that passed bills of attainder in 1585 and 1586, which included fraudulent conveyance provisions, and his own estates were founded on lands that had escheated to the queen, mainly after the attainder of the earl of Desmond. Possibly his final written words warned Queen Elizabeth that many Irish lords had entered into lease arrangements to protect their property before confederating in the rebellion that drove Spenser from his home in Cork in 1598. Therefore he asks “That provision may be made for the avoyding of such fraudulent conveyances made onlie to defeat her Maiestie of the benefit of their attainder.”21
Spenser’s experience in Ireland produced not only some political prose, whose authorship is somewhat in dispute, but poetry that expresses a surprising awareness of the difficulties of creating working rules of law. The problem of attainder surfaces in The Faerie Queene, in the episode of the baby with bloody hands (FQ II. ii), where Spenser gives expression to another area that Glenn considered tangential to the true history of his topic. That is the development of the law against fraudulent conveyances to defeat purchasers.22 As it turns out, two of Prince Arthur’s odder interventions as a character in The Faerie Queene reward our paying attention to this aspect of the broader topic of fraudulent conveyance and illustrate how the fiery passions that attached to both sides of the legal debate found literary expression.
The inadequacies of the law on fraudulent conveyances were in large measure resolved by Twyne’s Case in 1601, which side-stepped the problem of proving intentionality directly by listing what it called badges of fraud – secondary indicators, in effect circumstantial evidence, from which the fraudulent intent of a conveyance could be soundly inferred.23 At the same time, as I show in Chapter 5, the opinion written by Sir Edward Coke contains a number of narrative storylines. One story is political, to explain why the phrase “and others” in the original statute of 1571 (which voided fraudulent conveyances made to defeat “creditors and others”), applied to forfeitures to the Crown. Another story makes the point that the phrase “good consideration” should be read to mean “valuable consideration,” a topic that also occurs in The Faerie Queene. The issue of equity that usually arises in discussions of The Merchant of Venice might be reframed along the lines of a third narrative Coke creates, one that reminds judges that a statute on fraud should be broadly construed.
England was not alone in wrestling with fraudulent conveyances, or telling stories about them. Two hundred years before Elizabeth I, the Italian city-state of Florence grappled with similar problems of politics and the need to protect creditors in order to encourage commerce. The source story of Shakespeare’s Merchant of Venice derives from this period of Florentine history. Shakespeare started with the story of the debtor’s bond, but he added the elopement of Shylock’s daughter as well as Shylock’s punishment by Portia, which follows her charging him with attempted murder.
In an era when contract law was still developing and the famous Statute of Frauds (which set out rules for when a contract had to be in writing) was a generation in the future, Shakespeare’s audience might have understood Shylock’s intentions, the justice of Portia’s Alien Statute, or the problem of how to portray Shylock’s pathos at Lorenzo’s conveyance of his daughter Jessica against the paradigm of fraudulent conveyancing law. In Chapter 6, I argue that a grasp of the legal development of one form of fraud might extend our understanding of a play that is too often limited by discussions of anti-Semitism or the royal power to forgive. Portia’s problematic evidence that Shylock attempted to murder Antonio, I argue, lies not in the formation of the bond or Shylock’s waving a knife at Antonio, but on how Shylock construes the bond in court. The statute of Venice which Portia uses to punish Shylock mirrors the unworkable penalty provision of 13 Eliz., c. 5.
The developing law and the works of fiction it influenced are the subject, then, of the following chapters. The three main literary figures in the story of fraudulent conveyances are Philip Sidney, Edmund Spenser, and William Shakespeare – the three crowns of Elizabethan literature. The chapters devoted to them use the law to understand literature. The remaining two chapters treat the fraudulent conveyance statute and Coke’s report in Twyne’s Case. These chapters use literary and historical methods to analyze the law.
1 See the article on fraudulent conveyancing in Corpus Juris Secundum: A Complete Restatement of the Entire American Law as Developed by All Reported Cases (St. Paul, Minn.: West, 1936–), vol. 37, p. 853, citing Planters’ and Merchants’ Bank v Walker, 7 Ala. 926.
2 Susan Staves, Married Women’s Separate Property in England, 1660–1833 (Cambridge: Harvard University Press, 1990), pp. 49–55.
3 See Garrard Glenn, Fraudulent Conveyances and Preferences, 2nd ed., 2 vols. (New York: Baker, Voorhis, 1940), p. 82, and Max Radin, “Fraudulent Conveyances at Roman Law,” Virginia Law Review 18 (1931): 109–130.
4 See R. H. Helmholz, Canon Law and English Common Law: Selden Society Lecture Delivered in the Old Hall of Lincoln’s Inn, July 5th, 1982 (London: Selden Society, 1983), pp. 8, 12; Lauro Martines, Lawyers and Statecraft in Renaissance Florence (Princeton: Princeton University Press, 1968), p. 176, 251–259; A. W. B. Simpson, An Introduction to the History of Land Law (1961; 2nd ed., Oxford: Clarendon Press, 1986), p. 174, who compares the medieval use to modern tax evasion, as when the Franciscan Friars, to maintain poverty, “found it convenient that property should be held by others to their use.”
5 9 Hen. III, c. 35 (1236) was a statute against mortmain and subinfeudations (conveyance of lands to a religious house in order “to take the same land again to hold of the same house”). Frederick G. Kempin, Jr., Historical Introduction to Anglo-American Law, Nutshell Series, 3rd ed. (St. Paul, Minn.: West, 1990), p. 146, explains that a “tenant might convey land to a church with the understanding that the church would subinfeudate him for lesser services. The result was that the superior lord now had the church for a tenant, with the resulting loss of feudal dues, but the erstwhile tenant still had the benefit of the land with his obligations considerably reduced.”
6 52 Hen. III, c. 6. Wardship was an artifact of feudalism, the system whereby one incurred certain obligations to the overlord whose land one held. It lasted until the Restoration. The parliament of 1585 passed a bill designed to counter devices that would defraud the queen of revenue from wardship, even though such a law interfered with the free alienation of property. “Wardship was a burden of a social as well as financial character…. It was antiquated, irrational; a greater benefit to officials and speculators than to the Crown; an anxiety to parents, a breeding-ground of corruption. Since the possession of any portion of land, no matter how small, held by knight service of the Crown, subjected its owner and the whole of his estate to wardship, this form of tenure became an encumbrance, interfering with a ready sale…. Consequently, owners of land thus encumbered hit on the device of disposing of it by way of a long lease, which left the purchaser unaffected…. The Lords cannot have been enthusiastic about the bill. True, they were more or less all irredeemably subject to wardship, and in so far were less affected than many of the Commons. But as potential sellers of land their interests were the same. As a House, however, they were evidently incapable of resisting the pressure of the Crown and its spokesman, Burghley.” J. E. Neale, Elizabeth I and Her Parliaments, 1584–1601 (New York: St. Martin’s Press, 1958), p. 91.
7 A series of statutes under Richard II (11 Rich. II, c. 1–6) were aimed at five specific peers of the realm, accused of high treason, to void the “fraudulent conveyances of their goods to deceive the King.” One bill under Henry VIII forced a single man, Sir John Shelton, to repeal fraudulent deeds and conveyances made to defeat the king and others of wardship, primer seisin, and relief and to make clear that he, condemned to die, did so while seised of those lands, which the king could then reach (33 Hen. VIII, c. 26). Later laws were aimed at recusants who sought by “covenous conveyance” “to defraud any interest, right, or title, that may or ought to grow to the Queen” or anyone else (23 Eliz., c. 2 and 29 Eliz., c. 6). Another statute (27 Eliz., c. 4, passed in 1585 and made perpetual in 1597 by 39 Eliz., c. 18) prohibited fraudulent conveyances to defeat purchasers (in other words, it gave statutory form to the obvious notion that you should not sell the same thing to two people at the same time).
8 Over the centuries the English Parliament passed laws against conveying sheep (8 Eliz., c. 3); shipping of horses out of England (1 Edw. VI, c. 5); and carrying away women (13 Edw. I, c. 34; 31 Hen. VI, c. 9; 3 Hen. VII, c. 2; 4 & 5 Ph. & M., c. 8).
9 John Bellamy, Crime and Public Order in the Later Middle Ages (London: Routledge, 1973), p. 107.
10 50 Edw. III, c. 6 was aimed at those who, to avoid creditors, gave their tenements and chattels to friends, who agreed to pass on the profits, and then sought sanctuary in the “Franchise of Westminster, of S. Martin le graund of London, or other such privileged places.” The Parliament of Henry VII repeated the injunction of 50 Edw. III, c. 6 against deeds of gift made to defraud creditors by those who seek “sanctuary, or other places privileged” (3 Hen. VII, c. 4).
11 William Roberts, A Treatise on the Construction of the Statutes of 13 Eliz. c. 5 and 27 Eliz. c. 4, Relating to Voluntary and Fraudulent Conveyances (1800; 3rd American ed., Burlington, Vt.: Chauncey Goodrich, 1845), p. 13.
12 See, to take just one example, the discussion of Capital and Labor by David Ray Papke in The Pullman Case: The Clash of Labor and Capital in Industrial America (Lawrence: University Press of Kansas, 1999).
13 The New Historicism often finds its inspiration in older historians, and my reference to Lambarde is no exception. See A. L. Rowse, The England of Elizabeth: The Structure of Society (London: Macmillan, 1951), p. 38.
14 Ibid., p. 111.
15 Ibid., pp.122–123. He says the year was 1570, but that would be Old Style.
16 August 2, 1575. See Calendar of the Carew Manuscripts, 1575–1588, ed. J. S. Brewer and William Bullen (1868; Kraus Rpt.), p. 17.
17 See Rowse’s chapter, “Law in the Society,” The England of Elizabeth, pp. 360–385.
18 Richard Weisberg, Poethics: and Other Strategies of Law and Literature (New York: Columbia University Press, 1992), p. 3; Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard University Press, 1988), p. 17: “In truth, the problems of literary and of legal interpretation have little in common except the word ‘interpretation.’”
19 I am indebted to Patricia Parker’s Literary Fat Ladies: Rhetoric, Gender, Property (London and New York: Methuen, 1987) for my original inspiration on the whole topic of fraudulent conveyances. Her article “The Merry Wives of Windsor and Shakespearean Translation,” MLQ 52 (1991): 225–262, appeared while I was first working out my own ideas. Professor Parker then incorporated my work in her discussion of conveying in Shakespeare from the Margins: Language, Culture, Context (Chicago: University of Chicago Press, 1996), pp. 318, n. 32, 335–336, nn. 60–62.
20 I tend to agree with Richard Posner, Law and Literature: A Misunderstood Relation, p. 15, that the link between law and literature is rarely literal. On the other hand, Richard Weisberg, in The Failure of the Word: The Protagonist as Lawyer in Modern Fiction (New Haven: Yale University Press, 1984), p. 179, is also correct when he declares that the relationship “of interpretive theory to historical context is nowhere better approached than through literature’s use of the law.” The debate among theorists of law and literature has been extensive in recent years. A good survey of the law and literature debate can be found in Ian Ward’s Law and Literature: Possibilities and Perspectives (Cambridge: Cambridge University Press, 1995), pp. 3–27, which reviews the work of Brook Thomas, Richard Posner, Richard Weisberg, Richard Rorty, Paul Ricoeur, Stanley Fish, James Boyd White, Robin West, Owen Fiss, Mark Tushnet, Ronald Dworkin, and the Critical Legal Studies movement. Many theorists relate law and literature because they emerge from the same culture and form a common root in language; I hope I can be a little more precise in this book, since each of the authors was actually involved with fraudulent conveyances in some way. For a somewhat similar approach, see M. Lindsay Kaplan, The Culture of Slander in Early Modern England (Cambridge: Cambridge University Press, 1997).
21 “A Brief Note of Ireland,” in Spenser’s Prose Works, ed. Rudolf Gottfried, vol. 9 of The Works of Edmund Spenser: A Variorum Edition, ed. Edwin Greenlaw et al. (Baltimore: Johns Hopkins Press, 1949), p. 245. Here and elsewhere, except for quotations from poetry, I lightly modernize spelling and punctuation.
22 27 Eliz., c. 4 (1585). “In the old days,” Glenn admits, “every discussion of fraudulent conveyance included the rights of purchasers as well as creditors. There was, indeed, another Elizabethan enactment which was called the Statute of Conveyances in Fraud of Purchasers.” Since Glenn dealt only with the rights of creditors, he mentions this statute “only for purposes of elimination” (Fraudulent Conveyances and Preferences, p. 103).
23 Twyne’s Case, Mich. 44 Eliz., 3 Co. Rep. 80b. English Reports, 76: 809–823. The original version in legal French can be found in Le Tierce Part des Reportes del Edward Coke (London: E. Flesher, 1671), pp. 80–83. For a succinct account of how the court defined “badges of fraud” in Twyne’s Case, see David G. Epstein, Debtor–Creditor Law, Nutshell Series (St. Paul, Minn.: West, 1990), pp. 65–67.