This doth the comedy handle… and not only to know what effects are to be expected, but to know who be such, by the signifying badge given them by the comedian.
Philip Sidney, ‘Defence of Poetry’
The Merry Wives of Windsor, Shakespeare’s only play that pictures contemporary, middle-class English life, weaves several references to fraudulent conveyancing through a plot that involves many legal themes: Justice Shallow’s suit against Falstaff for poaching his deer, Falstaff’s attempts to escape debts, the moral response of the wives of Windsor to Falstaff’s sexual advances, the rules of the duel, the theft of horses. There is even a hint of the issue of same sex marriage at the end of the play when the two bumbling suitors, Abraham Slender and Dr. Caius, find they have carried away boys instead of Anne Page, who has managed to elope with her courtly lover Fenton. Each situation features some kind of ethical dilemma not dissimilar to the underlying issue raised by fraudulent conveyancing, which pits the plight of the powerless against society at large and the instrument of society, the law.
Besides its ethical concerns and its plot, Shakespeare’s play suits the theme of fraudulent conveyancing because the difference between what is said and what is not said affects both the play’s text and its textual history. The dumping of Falstaff in the Thames and the conveyance of Anne Page arise in what Patricia Parker has revealed as a “discursive network” that “links the transporting or translating of words with the transfer, conveying, or stealing of property”.1 Just as the play is at once both open and reticent about sex, it also finds a discursive mode for such unspoken practices as the ongoing trade in lands that once belonged to the Church and the ever-present practice of tax evasion. Shakespeare himself had no qualms about investing £440 in a lease that derived from a former church tithe, and he was twice cited, in 1597 and 1598, for failure to pay his share of the general subsidy that was the only real reason an English monarch allowed Parliament to meet.2 Once called, Parliament could debate any topic, including, to a remarkable extent throughout the 1570s and 1580s, the problems of fraudulent conveyancing. It is, therefore, perhaps not remarkable that when Shakespeare revised The Merry Wives of Windsor during the period in which Twyne’s Case (1601) was settled, he recognized, if he did not directly name, the local practices his plot reflects. Not that he was unaware of the terms of the law. The play has long been recognized for the legal language that distinguishes the later Folio from the earlier Quarto text.3 Characters use words and phrases such as Star Chamber, quorum, Justice of the Peace, custa-lorum, “bill, warrant, quittance, or obligation,”4 “the register” (of follies), “fee’d every slight occasion,” “exhibit a bill in the parliament,”5 cheaters,6 exchequers, egress and regress, suits and oyes.7 An earlier generation of critics used this language to argue that Shakespeare was a trained lawyer. More sober reflection has shown that these words and phrases were readily available and rarely employed with technical exactness.8 Nowhere do we find a “conveyance” in the narrow sense of a transfer of title by deed. Yet Mistress Page (“fee simple with fine and recovery” and “waste”) and Mr. Ford (building on “another man’s ground”) refer to practices that fraudulent conveyancing laws sought to keep in check, while Falstaff may or may not be involved in the mysterious disappearance of horses at the end of the play.
Conveying (the larger form of conveyancing) plays a metaphoric role in The Merry Wives, introducing not merely signs of the law (the legalisms pursued by earlier scholars) but subversive practices that inspired the law. The metaphors, parodies, and parallels for conveyancing illustrate a relationship between law and literature more productive than the illusion of legal substance, the representation of the adversarial process, or the use of legal terminology. The possibility and discourse, if not the legal technicality, of the law of fraudulent conveyance characterize this comedy.
The plot of The Merry Wives of Windsor finds Falstaff financially embarrassed and involved in a number of carryings on to obtain money. Early in the play he plans to seduce two wives of Windsor, Mistress Page and Mistress Ford, not for love but to gain access to the moneybags of their rich burgher husbands. Much of the drama’s humor derives from Falstaff’s failure to dissimulate his intentions effectively. The wives learn his plot when he sends each of them an identical love letter. Falstaff’s men, Pistol and Nym, then reveal his game to the wives’ husbands. The result is a series of humiliations: most famously, Falstaff is “conveyed” in a buck-basket of dirty laundry to the Thames for a dunking, after Ford interrupts the knight’s tryst with his wife. The conveyance saves Falstaff from the wrath of a jealous husband while punishing him at the same time.
Falstaff is a creature of the court, a companion of Prince Hal in Shakespeare’s history plays. In 2 Henry IV Falstaff’s time as a law student at Clement’s Inn is recalled (III. ii. 308), but in this play he is outwitted by a bourgeois woman, in part because he embodies the contradictions of a society where fraud is endemic and conveyancing is a matter of course. It turns out that Mistress Page (Anne’s mother) knows a thing or two about transfers of assets.
Although Margaret Page would not have attended the Inns of Court (for men only), in several instances she sounds more like a lawyer than Falstaff. The plot of the Folio version suggests a reason for her knowledge. Her daughter Anne has a legacy, which her grandfather left her on his deathbed, of “seven hundred pounds of moneys, and gold, and silver” (I. i. 50). Hugh Evans, the Welsh parson, mentions her legacy during a conversation at the beginning of the play when the characters are showing off their knowledge of legal terms. This endowment makes Anne attractive to the bumbling Abraham Slender, whose cause is promoted by his lawyer uncle, Justice Robert Shallow. Doctor Caius, a French physician, and a gentleman of court named Fenton also woo her. The play does not specify which of Anne’s grandfathers bequeathed her money, but a paternal patrimony would have probably descended to her father and not be subject to a separate bequest. Therefore the more likely benefactor is the father of Margaret Page. This possibility is supported by the mild manner of her husband George Page, who gives the impression of a middle-class man who has married money. His even temperament contrasts to the bluff and bluster of his neighbor Francis Ford.
Whether or not George Page negotiated a substantial settlement with his father-in-law, it seems likely his wife’s father withheld a part of his legacy and bequeathed it separately to his granddaughter. A woman’s property went to her husband, of course, unless she managed to convey it away, but there was nothing fraudulent in this disposition unless George Page had married Margaret Page under the expectation that the money would be his (the situation Truewit conjures in Ben Jonson’s Epicene). Nonetheless, if the grandfather who bequeathed Anne her legacy was in fact the father of Margaret Page, then that grandfather arranged for his wealth to skip a generation. He not only short-changed George Page, but – presuming she could control her husband’s spending – he also deprived his daughter of a certain amount of income, perhaps creating some bitterness and giving Mistress Page reason to think hard about the transfer of wealth.
Perhaps for this reason, Margaret Page knows the language of the law. But she is also a member of an ethically aware, churchgoing society. Traditionally the first act of fraud – in the limited sense of theft by legal manipulations – was Jacob’s deception of Isaac to win Esau’s birthright.9 Mistress Page, who seems to divine that Falstaff is after money as much as sex, cites it when she compares her letter from Falstaff to Mistress Ford’s: “here’s the twin-brother of thy letter; but let thine inherit first, for I protest mine never shall” (II. i. 72). It may be that Mistress Page compares her letter to herself as one who also did not inherit. Falstaff and her father are, in a way, two of a kind.
Mistress Page produces the densest legalism in the play after Falstaff makes his second attempt on Mistress Ford’s virtue. His first attempt ends in his conveyance in a buck-basket of laundry. His third attempt finds him disguised as Herne the Hunter and tormented by fairies. On the second occasion he only escapes the wrath of Master Ford, who surprises Falstaff and his wife at home, by disguising himself as Mrs. Ford’s maid’s aunt of Brainford. Ford calls the woman a witch an “old cozening quean” (IV. ii. 172), then cudgels the disguised Falstaff and drives him away. Delighted to see Falstaff punished for his impudence, Mrs. Page comments that “The spirit of wantonness is sure scar’d out of him.” She then adds two legal metaphors: “If the devil have him not in fee-simple, with fine and recovery, he will never, I think, in the way of waste, attempt us again” (IV. ii. 210). The first part of her sentence compares Falstaff’s beating to an exorcism of the devil, who has surely been driven out unless he has undisputed possession of Falstaff (“fee-simple”), a property right (or “fee”) often obtained, in the late sixteenth century, by the legal maneuver of “fine and recovery.”10 The second part refers to the legal action of waste. Both require explanation.
What is important about a “fine and recovery” is not the exact process of its execution but the way in which the history of property law had woven fraud into the very fabric of English society. A “fine and recovery” was a fraudulent form of conveyance that the courts sanctioned because no other way was possible to avoid the complexities of English land law. In theory the law of property in England went back to William the Conqueror, who asserted his right to every acre of England because, he claimed, he won the land by force. In practice he allowed Englishmen who recognized him as king to redeem their estates by some sort of payment. Thereafter all land was held of the king, either directly or indirectly. Those who held indirectly did so as tenants in desmene. Since tenants owed debts to the lord, usually some service defined by nature of the feudal tenure, anything the tenant did to avoid paying was a form of fraud. From the time of the Magna Carta, the English Parliament regularly passed laws to protect Crown interests and landowners against various forms of fraudulent conveyance.
Finding new forms of conveyance quickly became a favorite means to avoid payments. For example, to derive income from lands without losing seisin, tenants introduced the practice of subinfeudation, granting smaller and smaller estates out of those which they held. The tenant of a lord could convey or enfeoff his land to a new tenant in exchange for money. Although the tenant would retain ownership and owe feudal dues to his lord, the value of his estate would be nearly worthless, since the tenant’s subtenant now held most of the value.
Clever tenants then figured out a way to put themselves in the position of the subtenant, to retain both title and the value of land without having to pay feudal obligations to overlord. As Frederick G. Kempin, Jr. explains, “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.”11 Land held by the Church no longer generated income for an overlord or circulated in the property market and was said to be under a dead hand (mortmain). The resulting opportunity for fraud is made clear by the laws designed to prevent it. In 1236 the English Parliament passed a statute against mortmain and subinfeudation (9 Hen. III, c. 5). In 1267 the Statute of Marlborough curtailed fraudulent enfeoffments. Eventually, as the king and other overlords found their feudal profits shrinking, they passed the statute Quia emptores in 1290, which required a purchaser to substitute for the vendor in the feudal hierarchy and provide the same services for the overlord that had been required of the vendor. But new ways were soon found to avoid the new law. Quia emptores only applied to estates conveyed in fee simple. A tenant could still subinfeudate by granting less than a fee, such as life estate or an estate in tail. An estate in “tail” is one that is minced or pared from a full estate (from tailler, to cut), so that the owner does not have free power to dispose of it. The Statute of Westminster II known as De donis conditionalibus recognized the already ongoing practice and regularized it, creating a permanent opportunity for a form of fraudulent conveyance for the well-heeled.
The estate in tail may be regarded as an institutionalized hindrance to creditors, but there could be no legal question that it represented actual intent to defraud, since the owner did not create the estate from which he or she benefited. Yet there was an element of what Kempin calls a “pious fraud,” when eventually lawyers found a way to convert the estate in tail to a fee simple. The means for making property alienable is the common recovery, which shows up in a number of references in Shakespeare’s plays and other poetry.
The common recovery was a completely fictitious suit – a pious fraud. The device went through many stages, but the simplest example is the single voucher. Suppose, for instance, that A was in possession as a tenant in fee tail and desired to convey a fee to B. B would sue him for the land, alleging that A had no legal title to it and that it really was owned by B. A would enter an appearance and call upon X (from whom, he alleged quite fictitiously, he had purchased the land) to defend the title in accordance with the warranty given by X to A. This process was called vouching to warrant. X was called the common vouchee, because he usually was the court crier and frequently acted in this capacity. X would appear but would subsequently default, whereupon judgment would be given to the plaintiff, B, against A, and the court would give another judgment to A against X, presumably for lands of equal value, because of X’s breach of warranty in defaulting. X, of course, was in fact not expected to give A anything. The suit resulted in the conveyance of a fee estate to B.12
Mistress Page refers to the element of fraud in the fine and recovery when she names the devil as the party who seeks Falstaff’s fee simple. Implicit in her metaphor is a comparison of the trouble Falstaff has brought on himself by his sexual intrigues with the knotty problem of alienating property to a willing buyer. In one case the constraints are moral; in the other, legal. But by comparing aggressive male sexuality to the “pious” frauds necessary to alienate property, the virtuous Mistress Page expresses an ethical unease toward practices that society had otherwise countenanced. (Her attitude toward women’s virtue is not dissimilar.) In this way the play reflects some of the social pressure that helped solidify the laws of fraudulent conveyancing in the Elizabethan era.
The second part of Mistress Page’s sentence compares Falstaff’s attempts on the ladies’ virtue to the kind of fraud that arose in disputes over rights to exploit real estate. Paul S. Clarkson and Clyde T. Warren gloss “waste” as the “unauthorized use of land,” “the spoil or destruction done, or permitted, to houses, lands, trees, or other corporeal hereditaments by the tenant in possession to the prejudice of the reversioner or remainderman in fee simple or fee tail.”13 But this account misses the point that such waste was a recognized form of fraudulent conveyance.14 In 1601 Elizabeth’s Parliament passed a statute that reflects the wider association of fraud and waste. 43 Eliz., c. 8, “an act against fraudulent administration of Intestates goods,” targeted estate administrators who managed to give away goods before creditors could be paid because the creditors “for lack of knowledge of the place of habitation of the administrator cannot arrest him,” or if they find him and sue him, learn he is unable to pay “the value of that he hath conveyed away of the Intestates’ goods, or released of his debits, by way of wasting” (emphasis added). Mistress Page identifies herself as one with the potential to waste and understands that waste is a form of fraud. Again, the purpose of her comparison is to suggest that Falstaff’s behavior may be acceptable according to some people’s standards, but not her own.
Besides showing off her legal knowledge by making a pun on waste and waist, Mistress Page also directs various actions at fat Falstaff that have a hint of legality about them. As an active plotter – and the success of her intrigues makes her arguably the most intelligent character in the play – she vows revenge when she receives Falstaff’s letter; she enlists Mistress Quickly to assist her; she instigates Mistress Ford to convey Falstaff in a buck-basket when Ford, like a judgment creditor, demands that his wife hand over Falstaff; she suggests disguising Falstaff as a woman when he will not enter the basket a second time; and she invents Falstaff’s third humiliation, the Herne the Hunter scenario.
Mistress Page also associates legal language with the plans she conceives. The Folio assigns Mistress Page first use of the word “convey” in the play, one of several legalisms by which Shakespeare’s revisions find legal language to catch up with and recognize the nature and complexity of the plot. In the Quarto Falstaff first uses the word “convey” in reference to his concealed transport in Mistress Ford’s buck-basket (“convey me hence” [III. iii]), but his usage seems to be accounted for by the presence of the word in Tarlton’s News out of Purgatorie, a probable source.15 By contrast, when Mistress Page says “convey” in the Folio, one first feels the word signals a character’s awareness of its legal and ethical associations: “If you have a friend here, convey, convey him out,” she tells Mistress Ford. “Bethink you of some conveyance…. Looke, here is a basket.”
The humor of the conveyance lies in its double sense as both the means of transferring title and the property itself. Where real property is at issue, a “conveyance” is always metaphorical (even when livery of seisin is confirmed by dropping a clod of earth), since no one can carry an acre of land.16 A deed may be “conveyed,” but it or another document has value only through what it represents. A marriage debt is similarly metaphorical, even though it may entail physical activity. Falstaff expects the wives to betray their husbands, to whom they owe their loyalty. Mistress Ford and Mistress Page, however, protect their reputations and chastity by secretly conveying Falstaff out of Ford’s house. The buck-basket parody works because it inverts the literal and metaphorical aspects of a fraudulent conveyance. The “conveyancing” of Falstaff actually takes place, and Falstaff becomes, literally, the conveyance.
Mr. Ford is another character aware of fraud. Having learned Falstaff intends to seduce his wife, Ford disguises himself as a stranger named Brooke (Broome in the Folio). He meets Falstaff at the Garter Inn, claiming he loves Mistress Ford and offering to pay Falstaff to seduce her on the theory that, having once fallen, she will then favorably receive his entreaties. Amazed at Brooke’s profession of love and confession of failure that drives him to this extreme, Falstaff asks him, “Of what quality was your love then?” Ford responds with a legal metaphor, comparing his love of Mistress Ford to “a fair house built on another man’s ground, so that I have lost my edifice by mistaking the place where I erected it” (II. ii. 215). Clarkson and Warren echo earlier legal scrutinists: “It was certainly true at common law that if a man by mistake erect a house upon another man’s land it became a part of the land and the property of the landowner.”17 The rule is that whatever is affixed to the soil belongs to the soil.18 The idea occurs in Shakespeare’s sonnet 146: “Why so large cost, having so short a lease, / Dost thou upon thy fading mansion spend?”19 The rule was a commonplace of the law.
But the rule also provided an opportunity for mischief. Consider a tenant who seeks a 20-year lease knowing that he wants to construct a building. The tenant will naturally bargain to have the price of his lease discounted to reflect the future value of the building that will belong to the landlord once the lease expires. Yet if the landlord can manage to accelerate the lease – perhaps by demanding payment when the tenant blunders into insolvency, or even by driving the tenant into financial trouble – the landlord will effect a conveyance to himself. Such a situation occurs when a landlord terminates a lease, leaving the lessee/debtor with no income to pay his creditors, thereby causing the tenant to forfeit his building or premises. Later lawyers would call this a “constructive” fraudulent conveyance, which occurs when there is no intent to deceive but a creditor is nonetheless compromised. When Ford refers to building on another man’s land, his words touch an ethical sore point where the law was not yet clear.
Exactly this sort of situation affected Shakespeare’s circle in 1597 when the 20-year lease that James Burbage had taken from Giles Allen for land on which to build the Theatre expired. Allen had the law on his side.20 He owned the land, and when the lease was up he owned the building. Burbage knew his lease would expire and spent £600 on the Blackfriars, but a neighborhood petition drove him out. Shakespeare’s company played at the Rose and the Swan for an interim year, then made plans to build the Globe: it was to finance this project that the Burbages allowed Shakespeare and five or so others to invest and thereby become part owners.
Although Allen had a legal right to his land and the buildings on it, to the Burbages and their resident theater company, including Shakespeare, it doubtless seemed that Allen was morally, if not contractually, obligated to renew the lease.21 By putting the padlock, so to speak, on the acting company’s source of income, Allen constructively hindered payment to the Burbage’s creditors, who could have included anyone to whom they owed money, including the actors. Shakespeare’s company reacted in kind to what they doubtless believed Allen had done. They literally disassembled the theater from Allen’s property on December 28, 1598 and then ferried the timbers across the Thames to construct the new Globe Theatre.
The conveyance of an entire theater, like the buck-basket that carries Falstaff, suggests that Shakespeare’s company was alert to gestures that could allusively mimic a fraudulent conveyance. As Richard Posner writes, law functions best in literature not as “a complex of rules and institutions” but as a “practice” that can be “imitated” in the Aristotelian sense.22 The practice at which the statutes aimed was amazingly widespread. A. W. B. Simpson has called the late sixteenth and early seventeenth centuries “the age of fantastic conveyances,” as lawyers manipulated legal estates to outwit the Statute of Uses and the Statute of Enrollments passed under Henry VIII.
The chaotic state of the land law on points such as these was all the more lamentable during a period of social upheaval marked by an increase in the prosperity and social status of the lesser landowners, which, in its turn, brought an accompanying desire to “found families” and ensure that the family estate should not be alienated out of the family in the future.23
This common topic was readily available to Shakespeare and his circle in popular and indexed epitomes such as those published by Brook, Rastell, Pulton, West, Plowden, and the prolific Tottell.
We do not know that Shakespeare read these works, but we do know his friends (if not he himself) practiced the deceptions these books describe. For not only did Shakespeare’s acquaintances take a dim view of the termination of the Burbages’ lease, but, in a related gesture, they themselves readily conveyed property to avoid creditors. For example, before he died, John Brayne, the brother-in-law of James Burbage, had been Burbage’s partner in constructing the Theatre. On the last day of September in 1591, an attorney named Henry Bett of Lincoln’s Inn, who would have been well aware of the current state of fraudulent conveyancing law, mentioned in a deposition that Brayne, who spent his fortune improving the Theatre, habitually prepared deeds of gift whenever he anticipated being imprisoned for debt: “it was a Comon thing, with the said John Braine [sic], to make deeds of gift of his goods and Chattelles. The reason was… to prevent his Creditors aswell before building of the Theatre, as since, for he being redie to be imprisoned for debt, he would prepare sutch safetie for his goods, as he could / by those deeds.”24 Bett uses the word “safety” with professional ease, as if admiring Brayne’s prudent asset management, but the fact that Brayne was practically insolvent implies that he acted to defraud creditors.
Such conveyancing was not uncommon, at least among the businessmen associated with Shakespeare, and it is hard to say whether they were being prudent or malicious. In 1596, just before he died, James Burbage protected his estate “by making a deed of gift to Cuthbert of all his personal property, and another deed of gift of the Blackfriars to his second son, Richard” (Shakespeare’s acting partner).25 James died. As a result of this gift, Robert Miles (the executor and sole legatee of the Brayne estate) filed suit in 1597 against Cuthbert, Richard, and Ellen Burbage. Miles charged that James Burbage conveyed his estate to defeat Miles and other creditors of their due. Perhaps because the law was still unsettled, perhaps because he had no case, or perhaps because the Burbages were well connected at court, Miles lost his legal action both in Chancery and at common law, as did Giles Allen, who raised the same issue in 1599 when he sued the Burbages for the value of his lost building.
The prevalence and uncertainty of the practice of fraudulent conveyancing gives layers of meaning to Ford’s speech to Falstaff. First, Ford suspects someone has made “shrewd construction” on his wife’s “enlarged mirth.” In this case the “building” is not vain desire but a sexual erection. Mistress Quickly unknowingly blunders onto the truth several scenes later, committing a malapropism when she defends, to Falstaff, the mistaken direction of the servants who tossed Falstaff in the Thames:
Quickly: Alas the day! good heart, that was not her fault. She does so take on with her men; they mistook their erection.
Falstaff: So did I mine, to build upon a foolish woman’s promise.
(III. v. 35–41)
Falstaff catches her meaning, but he is remarkably unaware of the risk he takes of being defrauded by “Brooke.” We have seen that an unscrupulous landlord might let someone who was ignorant of his title build on his land. Ford, disguised as Brooke, similarly encourages Falstaff to “build” on his “ground” (that is, make love to his wife). By encouraging Falstaff to seduce his own wife, Ford may be compared to a ruthless landlord who encourages a man to build on his land and then manages to accelerate a lease or otherwise assert his rights to a building that the tenant has paid for. A creditor could not really argue that he intended to deceive him, but the attachment of a building to land would have the effect of a fraudulent conveyance. Ford’s fraud is similarly constructive.
Even though Falstaff’s response to Mistress Quickly suggests that he is aware of the dangers of building on uncertain ground, he misses the fraudulent conveyancing aspects of Ford’s plot that Shakespeare himself was alert to. Instead, Falstaff’s mind seems to conjure a law that arises from the works of nature (nature to which his mind compares woman), when he says that he has mistakenly built upon a “woman’s promise” (III. v. 41). Fresh from a dunking in the Thames, Falstaff rather quaintly thinks in terms of riparian rights. Land is stable, but a riverbank can shift in flood, and the changing course of a stream may eliminate one’s property interest.26 A “woman’s promise,” Falstaff suggests, shifts like a shoreline, and one’s possessions may be washed away.
Like Mistress Page and Ford – and in contrast to Falstaff’s somewhat retrograde activity – the Host also thinks like a contemporary lawyer. He is eager to use the legal terminology of “egress and regress” (‘said I well?” [II. i]),27 and he worries that “Brooke” has a “shute [suit] against my knight.” He somewhat suspiciously keeps a room for Falstaff even when the Garter has been taken over by Germans (“They have had my [house] a week at command. I have turn’d away my other guests” [IV. iii. 8]). English bankruptcy laws, like those of Rome, generally created some form of sanctuary, a place where a debtor could be free from arrest while he reorganized. Usually a church or abbey lands served as a sanctuary, but as Bacon recognized in his Learned Reading on the Statute of Uses, debtors desired a retreat to live in after conveying their assets to a friend.28 They could then negotiate with their creditors, who would be willing to settle their claims at a discount because they would otherwise be unable to reach property held in trust for the debtors. The Garter Inn operates symbolically in this way – rather like a homestead in modern US bankruptcy law, a place creditors cannot touch – for Falstaff lives there uninterruptedly, giving him time to effect the transfer of Bardolph’s employment to the Host of the Garter and to send love letters to Mistress Ford and Mistress Page, wooing them for their money.
Besides living in a kind of sanctuary, Falstaff also seems to have a precocious sense of what in later contract law will be called “mutual mistake” when he assigns Caius and Evans to different locations for their duel, effectively preventing their encounter. (A contract is void when a broker makes a sale by describing a different article to each party.)29 The result is good comedy, based on legal principles.
As I just suggested, Falstaff has the cooperation of the Host as he connives with regard to the employment of Bardolph. The dismissal of a servant to evade debt is a very old legal trick. Justinian mentions fraudulent manumission and gives an example: “A grant of freedom amounts to fraud on creditors when the grantor is already insolvent at the time of the manumission or will become so by freeing the slaves.”30 Bardolph is not a Roman slave, of course, but in 2 Henry IV, Falstaff says he “bought” him at St. Paul’s (I. ii. 51). When Falstaff follows his announcement that he needs to “turn away” some of his followers by saying “I sit at ten pounds a week” (I. iii. 8), the Host of the Garter is not slow to realize that he receives most of that expense. (The tavern bill found on Falstaff in 1 Henry IV, II. iv. 535–539, suggests that Falstaff spends 13 shillings a day for food and drink, which with half a crown or so for rent, comes to about £10 a week.) Mine Host picks up Bardolph’s hire because he values a good customer. He is the beneficiary of Falstaff’s transfer of Bardolph, and the transfer verges on fraud because of a trust relationship between Falstaff and the Host to the detriment of other creditors (although it was otherwise legal to prefer one creditor to another). As a tapster, Bardolph will spend much of his time doing what he would do anyway, fetching sack for Falstaff. Falstaff retains his service the way Pierce retained the sheep he conveyed to Twyne.
Falstaff’s show of concern to find new employment for Bardolph conceals the transfer of assets that takes place. Openly, Falstaff defends letting Bardolph go by claiming he has lost his skill in filching. Pistol – who has just heard Falstaff rationalize his dismissal of Bardolph by claiming that he “kept not time” (I. iii. 26) – perhaps puts a right name to what has happened. Shakespeare’s characters usually base their puns and word play on something someone else has just said or done. Pistol has heard Nym use the word “steal” a moment before, but he may have come up with the word “convey” in response to the way Falstaff engineers Bardolph’s new occupation when he offers a synonym for theft: “‘Convey’, the wise it call. ‘Steal’? foh: a fico for the phrase!”
Falstaff has told his followers he needs to practice deceit – “to shuffle, to hedge, and to lurch” – thus coloring even his inadvertent actions with a degree of intentionality. Pistol’s suspicion of Falstaff’s secret dealings helps account for his and then Nym’s refusal to carry Falstaff’s love letters. The distaste for pimping that they express seems like a sudden attack of virtue, but their possible suspicion is borne out when Falstaff seizes on their refusal and cashiers them for it. Whatever his true motive, and whether or not the Host connives with him (as Twyne may or may not have done with Pierce), Falstaff gets a kind of fresh start by releasing his men. He reduces his expenses, and he may also make money if Bardolph, Pistol and Nym are receiving a military salary that Falstaff can pocket. We remain uncertain as to whether Falstaff makes a sly reference to the deceptive practice of fraudulent conveyance when he refers to Bardolph’s new occupation as a “good trade,” but others, especially the perspicacious Host, seem well aware of what is happening.
Ford, Mistress Page, and the Host constitute a pattern of legal thinking that reflects the increasingly mercantile world of turn-of-the-century England. Their values contrast with those of the knightly class to which Falstaff belongs. England’s gentry and aristocracy embraced a romantic ideology of exploration and commercial adventure that colors Falstaff’s language.31 As an apologist for empire, or like an old aristocrat, the knight believes that wooing women for their wealth makes fortunes.32 Falstaff is certain the wives of Windsor will yield riches: he declares that Mistress Ford and Mistress Page are lands of “gold and bounty. I will be cheaters to them both, and they shall be exchequers to me. They shall be my East and West Indies, and I will trade to them both” (I. iii. 69–72). He means, “I will deceive them; they will be my source of wealth. I will take money first from one, then the other.” But Falstaff’s language undercuts him by echoing a commercial world to which he seems a stranger. In real life, “cheaters” were tax collectors, and they were capable of fraud that amounted to theft. The situation at Cadiz in 1596 shows such a corrupt representative of the Exchequer at work, as J. E. Neale tells the story:
Both Howard and Essex were under promise and orders to save the plunder of the voyage for the Queen: they gave it with a bountiful hand to their men. An official had been attached to them to see the order carried out: he plundered with the rest.33
Whether or not Shakespeare knew about Cadiz, the problem of repossessing property that such embezzlers bought with the king or queen’s money is typical of the precedents cited in Mannocke’s Case.34 This close connection between “escheators” for the Crown and fraud suggests the limited range of Falstaff’s ideas on trading and cheating: he maintains an epic attitude of bravado and lying in a world where economic activity was increasingly seen as a technically sophisticated adventure.
The problem of Falstaff’s legal knowledge surfaces most acutely in the final act when Ford announces that Falstaff owes “Brooke” (the name that Ford assumes in disguise) the sum of £20, money that Falstaff has accepted in exchange for his promise to Brooke to seduce Mistress Ford. In the Quarto version of the play Ford mentions “a further matter” to Falstaff: “There’s 20 pound you borrowed of M. Brooke Sir John, / And it must be paid to M. Ford Sir John” (V. v. 117 [1602]). Mistress Ford tells her husband to forgive his debtor, thereby effecting a reconciliation appropriate to the comedy’s conclusion: “Nay husband let that go to make amends, / Forgive that sum, and so weele all be friends.” She prefers to be generous rather than test Falstaff’s integrity.
In the Folio, however, Mistress Ford says nothing about forgiving Falstaff. Instead, Ford announces that Falstaff’s “horses are arrested” (V. v. 114) to ensure repayment of the debt. Lewis Theobald retained the Quarto reading, noting, in a quasi-judicial manner, that “Sir John Falstaff is sufficiently punished, in being disappointed and exposed. The expectation of his being prosecuted for the twenty pounds gives the conclusion too tragical a turn. Besides it is poetical justice that Ford should sustain his loss, as a fine for his unreasonable jealousy.”35 But Theobald overreacts. For one thing, Ford’s legal move may have been merely practical: in 1 Henry IV when Prince Hal hides Falstaff’s horse before the Gadshill robbery, he knows that the fat knight is not likely to move far unmounted. Furthermore, if Ford has not taken Falstaff’s horses as a joke, then the term “arrest” may be a legalism. Falstaff may have been compelled to give horses to the sheriff as pledges that he will appear in court. His horses would have been “arrested” by a writ.36 But nothing indicates Falstaff knows what has happened. The more likely explanation is that Ford moved to seize Falstaff’s assets before the knight could hide them or convey them to a friend.37 Again, however, Falstaff seems unperturbed by the news, and it may be that Ford sent the bailiff too late. I am not the first to think that those horses of the Host stolen by the “Germans” may well have been Falstaff’s: doubtless on their way to a place beyond the reach of creditors. Perhaps old Falstaff does know a thing or two about conveyances.
Falstaff’s conveyance of his horses would be fraudulent if he had no other assets with which to repay his debt. He has clothes, and his room at the Garter counts as an asset if he has paid for it in advance. He may have an income either from an inheritance or as a military captain. But, more to the point for one seeking a quick sale, Falstaff also has an uncertain number of horses – say four, one each for himself and his men – whose value we may estimate at about £5 apiece, suggesting that “Brooke” knew his man if he purposely limited his lending to £20.38 It is tempting to suggest that Ford is merely blustering when he claims to have arrested Falstaff’s horses. The garbled state of the text allows two opposed but related interpretations: either Ford arrested Falstaff’s horses to prevent a fraudulent conveyance, or Falstaff fraudulently conveyed them to prevent their seizure for debt.
As a figure in the shifting ethics of conveyancing, Falstaff operates both openly and secretly, intentionally and perhaps instinctively. In Shakespeare’s history plays, Falstaff’s illegal behavior threatens to mislead Prince Hal and derange society.39 Shakespeare’s comedy, however, absorbs Falstaff’s deceptive stratagems because the mores of the society represented in the play show the same ambiguity that characterizes Falstaff.
Either Falstaff’s debt is forgiven or not. Either his horses were stolen or Falstaff hired the thieves. The comic form of The Merry Wives of Windsor remains intact, despite what Theobald thought, if we follow the text and assume Ford did manage to arrest Falstaff’s horses. Falstaff has traditionally been regarded as a miles gloriosus figure, the alazon or braggart of Roman comedy, or as a derivative of vice in the old morality plays. Recent critics, seeking to interpret the final pageant of The Merry Wives, see him as a carnival figure, a victim of folk-ritual, or a scapegoat who bears the vices of misplaced sexuality and deception “shared by the very citizens who taunt him.”40 I believe he is an effigy of fraud as well – a great literary figure, like Dante’s Geryon, “quella sozza imagine di froda” (Inferno, xvii, 5). The original Twelve Tables of Rome allowed creditors to divide the body of a debtor among them.41 Falstaff echoes the old Roman law when, reveling with the wives at Herne the Hunter’s oak tree, he offers to divide himself up for their benefit, a haunch to each. Falstaff’s symbolic role as a figure of fraud helps explain why Falstaff invites Brooke to Herne’s oak to watch him give himself to Mistress Ford and also why Falstaff is ultimately forgiven his trespasses by the townspeople who mock him.
Although there have been recent defenses of Falstaff’s role in this comedy, he has generally been taken to be a lesser wit than the knight of the history plays.42 A. C. Bradley deplored Falstaff’s degradation in The Merry Wives.43 Samuel Johnson, thinking of Falstaff’s influence on Prince Hal in 1, 2 Henry IV, moralized that the danger of Falstaff’s vice is its attractiveness to others.44 I believe Bradley’s view is misguided and that Johnson’s observation applies to The Merry Wives as well as the history plays. Falstaff reflects a society in which fraud is endemic and social rules, including legal forms of conveyance, are in flux.
Fraudulent conveyances operate in a shifting moral sphere, where power blurs the line between right and wrong. Anyone who appears unfairly oppressed by circumstances or misfortune will arouse sympathy, including Falstaff, whose simultaneous punishment and escape reflects this ethical ambivalence. His role illustrates the observation of the Roman jurist Justinian that fraud may be admirable. That quality, says Justinian, explains the seeming redundancy of the phrase “false fraud”: “The old lawyers described even malice or fraud as good and held this expression to stand for ingenuity, especially where something was devised against an enemy or robber,” and so they “added the word ‘evil.’”45 Fraudulent conveyances, too, could be good or bad, depending on one’s point of view.
1 See Patricia Parker, “The Merry Wives of Windsor and Shakespearean Translation,” MLQ 52 (1991): 225–262, 236.
2 For these facts of Shakespeare’s life, see Samuel Schoenbaum, William Shakespeare: A Compact Documentary Life (New York: Oxford University Press, 1977), pp. 221–222, 246–247.
3 The Folio, sometimes dated to a garter feast of 1597, seems to be a later version of the play than the Quarto, according to Grace Ioppolo, Revising Shakespeare (Cambridge: Harvard University Press, 1991), p. 120, who argues it was probably revised several times “to celebrate several Garter feasts”: those of 1597, 1603, and possibly 1604. Elizabeth Shafer, “The Date of The Merry Wives of Windsor,” Notes & Queries 236 (1991): 57–60, notes the paucity of evidence for a 1597 Garter production and concludes that all we can say with certainty about the date is that the Quarto version was written sometime before its publication in 1602. Whether the Folio version, which uses more legal terms, was composed before or after the Quarto does not really matter for my argument. Leah S. Marcus, “Levelling Shakespeare: Local Customs and Local Texts,” Shakespeare Quarterly 42 (1991): 168–178, 173, finds key differences between the two texts: the play “exists in a Quarto of 1602 with an urban setting strongly suggesting London or some provincial city, and the standard copytext, the 1623 Folio version, which sets the play in and around the town of Windsor and includes numerous topographical references to the area, its palace, park, and surrounding villages.”
4 These first terms, most of which are not in the Quarto, occur in the opening conversation of Justice Shallow and Slender, whose legal knowledge finds its image, a little later, in his apparent preference for Richard Tottel’s Songs and Sonnets instead of Tottel’s legal tomes. Unless noted, quotations are taken from The Riverside Shakespeare, ed. G. Blakemore Evans (Boston: Houghton Mifflin, 1974), but I have tried to be alert to the differences between the Quarto and the Folio, for which see William Shakespeare, The Merry Wives of Windsor (1602), Shakespeare Quarto Facsimiles, No. 3 (Oxford: Clarendon Press, 1963), cited by act and scene, and The Norton Facsimile: The First Folio of Shakespeare, ed. Charlton Hinman (New York: Norton, 1968), cited by through-line number.
5 The three previous examples are cited by H. J. Oliver, ed., The Merry Wives of Windsor (1971; London: Routledge-Arden, 1993), p. lxxviii, who declares the significance of the legalisms hard to detect.
6 According to Dunbar Plunket Barton, Shakespeare and the Law (1929; rpt. New York: Blom, 1971), p. 154, “Shakespeare used the word ‘cheater’, either in its original sense of escheator or officer who enforced escheats or forfeitures to the Crown, or in its derivative sense of a ‘swindler’or ‘cheat.’”
7 “[T]he commencement of the mock trial of Falstaff at Herne the Hunter’s Oak in Windsor Park at midnight… is shortly followed by a parody of ordeal by fire,” according to O. Hood Phillips, Shakespeare and the Lawyers (London: Methuen, 1972), p. 89. Barton, Shakespeare and the Law, p. 84, adds that Shakespeare “compares the starting of a fairy revel to the opening of a Court of Assize. The fairy Hobgoblin figures as Crier of the Court; and is ordered to open the revels as if it were an Assize: ‘Crier Hobgoblin make the fairy o-yes.’”
8 See Barton, Shakespeare and the Law, pp. 7, 159; Arthur Underhill, “Law,” in Shakespeare’s England (1916; Oxford: Clarendon Press, 1950), 1: 381; and George W. Keeton, Shakespeare’s Legal and Political Background (New York: Barnes & Noble, 1968), p. 301.
9 Patricia Parker, Literary Fat Ladies: Rhetoric, Gender, Property (London and New York: Methuen, 1987), p. 74.
10 According to Alan Harding, A Social History of English Law (1966; Gloucester, Mass.: Peter Smith, 1973), p. 91, “The conveyancers quickly developed ways of breaking entails, for the benefit of tenants-in-tail who wanted to alienate the land that came to them. The conveyancers’ cleverest invention was the common recovery. It was known that a tenant for life or a term of years sometimes fraudulently conveyed away the fee simple of the land he occupied by means of a collusive action: the purchaser claimed the land in court, and the tenant made only a gesture of defense, so that the purchaser ‘recovered’ the land by a legal judgment.” For the more complex “fine and recovery,” see Paul S. Clarkson and Clyde T. Warren, The Law of Property in Shakespeare and the Elizabethan Drama (Baltimore: Johns Hopkins Press, 1942), p. 127–128; Underhill, “Law,” 1: 405; and Frederick G. Kempin, Jr., Historical Introduction to Anglo-American Law, Nutshell Series, 3rd ed. (St. Paul, Minn.: West, 1990), p. 157.
11 Kempin, Historical Introduction to Anglo-American Law, p. 146.
12 Kempin, Historical Introduction to Anglo-American Law, p. 158.
13 Clarkson and Warren, The Law of Property in Shakespeare, p. 166. The authors wittily point out that from a legal standpoint, Falstaff is a stranger, not a tenant: “Damage done or permitted by a tenant in possession (having an estate less than fee tail) would be waste, but damage done by a stranger would be trespass. Falstaff certainly was no tenant (metaphorically, of course)” (p. 167).
14 William Rastell, “To the Gentle Reader,” in A Collection in English, of the Statutes now in force, continued from the beginning of Magna Charta (London, 1598), p. 522, lists the rule that one who sustains damage can have a “writ of waste out of the Chancery against the escheator for his act.”
15 See Geoffrey Bullough, ed., “Tarltons Newes out of Purgatorie,” in Narrative and Dramatic Sources of Shakespeare, vol. 2: The Comedies, 1597–1603 (London: Routledge, 1958), p. 31: “and then was Lionello [Falstaff’s equivalent] conveighed away.”
16 Seisin is not the possession of land but the legal right to it. It is a famously murky concept in English law. But if the operation of it is arcane, the social policy behind it is clear. Seisin helped keep transfers open and public. “The notion that seisin was a ‘thing’ was so strong that a present freehold estate could be transferred only by feoffment, a highly ceremonial transaction which took place on the land and in which ‘livery of seisin’ was symbolized by handing over a twig or a clod in the presence of witness.” Where the public was involved, opportunities for private fraud were diminished. See John E. Cribbet and Crowin W. Johnson, Cases and Materials on Property, 5th ed. (Mineola, NY: Foundation Press, 1984), p. 243, citing Percy Bordwell, “Seisin and Disseisin,” Harvard Law Review 34 (1921): 592–624.
17 Clarkson and Warren, The Law of Property in Shakespeare, p. 164.
18 “Quicquid plantatur solo solo cedit”; “aedificium solo cedit”: see Barton, Shakespeare and the Law, p. 122. William Rushton, Shakespeare’s Legal Maxims (1907; New York: AMS, 1973), pp. 23–25, traces the maxim to Justinian and gives a variation in George Chapman’s May Day. Clarkson and Warren, The Law of Property in Shakespeare, p. 166, cite Thomas Dekker’s The Shoemaker’s Holiday for a similar sexual metaphor: “hee / that sowes in another mans ground forfeits / his harvest.”
19 Noted by Barton, Shakespeare and the Law, p. 114.
20 The first critic to connect Allen’s attempt to take possession of the Theatre to Ford’s metaphor was Roy F. Montgomery, “A Fair House Built on Another Man’s Ground,” Shakespeare Quarterly 5 (1954): 207–208. See also Andrew Gurr, The Shakespearean Stage, 1574–1642, 2nd ed. (Cambridge: Cambridge University Press, 1980), p. 130; Schoenbaum, William Shakespeare, pp. 207–208; Joseph Quincy Adams, Shakespearean Playhouses (1917; Gloucester, Mass.: Peter Smith, 1960), pp. 28–74; and their source, Charles William Wallace, The First London Theatre: Materials for a History (1913; rpt. New York: Benjamin Blom, 1969).
21 Cuthbert Burbage had the right to bear away the timbers for the Theatre for 21 years after his father first signed the lease, but Allen seems to have attempted to make him miss that deadline by giving false promises that he would renew it. It fell due in September 1598, and learning that Allen himself intended to dispose of the materials, Cuthbert took action. See Adams, Shakespearean Playhouses, p. 62.
22 Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard University Press, 1988), p. 79.
23 A. W. B. Simpson, An Introduction to the History of Land Law (1961; 2nd ed., Oxford: Clarendon Press, 1986), p. 186.
24 Wallace, The First London Theatre, p. 86. At the time he wrote Bett was an ally of the Burbages in defending their interests against Brayne’s widow, who acted at the instigation of Robert Miles. Later Bett witnessed the assignment of the lease of the Theatre to Cuthbert Burbage.
25 Wallace, The First London Theatre, pp. 23–24.
26 Spenser draws on a similar law of the sea in the tale of the two sons of Milesio, owners of eroding islands, when Artegall convinces them that they must be content with what the sea delivers them and what it takes away (The Faerie Queene, V. iv. 4–20).
27 The terms “egress and regress” might occur, for example, in a lease where a tenant would leave the land but claim a right of return to harvest a crop; see Clarkson and Warren, The Law of Property in Shakespeare, p. 69.
28 Francis Bacon, The Works of Francis Bacon, ed. James Spedding, Robert Leslie Ellis, and Douglas Denon Heath, vol. 7: Literary and Professional Works (London: Longman, 1861), p. 412. See also I. D. Thornely, “The Destruction of Sanctuary,” Tudor Studies Presented … to Albert Frederick Pollard, ed. R. W. Seton-Watson (London, 1924), pp. 182–207, 183–186; Leah Marcus, Puzzling Shakespeare: Local Reading and Its Discontents (Berkeley: University of California Press, 1988), pp. 165–166; Garrard Glenn, Fraudulent Conveyances and Preferences, 2 vols. (New York: Baker, Voorhis, 1940), p. 84, and 32 Hen. VIII, c. 12 (“places of priviledge and tuition for terme” included Welles in Somerset, Westminster, Manchester, Northampton, Norwich, York, and Derby).
29 See Francis B. Tiffany, Handbook of the Law of Sales (St. Paul, Minn.: West, 1908), p. 53.
30 See Justinian’s Institutes, trans. Peter Birks and Grant McLeod (Ithaca: Cornell University Press, 1987), p. 41 (1.6.3).
31 David Quint, Epic and Empire: Politics and Generic Form from Virgil to Milton (Princeton: Princeton University Press, 1993), p. 259, notes that although plunder is “the normal means for an epic hero to acquire portable property,” there was a tradition of debased heroes who ventured among the merchants (ancient critics called Ulysses a hoarding merchant, and Juvenal referred to Jason as “mercator Jason”). The old categories were breaking down by 1600 when Elizabeth gave a charter to the East India company to trade wool cloth in the Indian Sea. Compare G. M. Trevelyan, Illustrated History of England (1926; London: Longmans, 1956), pp. 346–347: “Commerce was the motive of exploration as well as warfare, and all three were combined in some of the greatest deeds of that generation. Romance and money-making, desperate daring and dividends, were closely associated in the minds and hearts of men.”
32 Falstaff represents what Immanuel Wallerstein, The Modern World System: Capitalist Agriculture and the Origin of the European World-Economy in the Sixteenth Century (New York: Academic Press, 1976), p. 18, calls the old view of the world of trade as a trade in luxuries (food and handicraft production), not “bulk” goods.
33 J. E. Neale, Queen Elizabeth I (1934; Harmondsworth: Penguin, 1973), p. 346.
34 Mannocke’s Case (3 Dyer 295a [1571]) cites a cluster of cases based on debt, sanctuary, and fraudulent conveyance, including a case about a man who purchased land with the money of the king: “Walter de Chyrton customer al Roy esteant graunde dettor a luy, purchase terre ove la money le Roy, et prist lestate del terre a ses amies a defrauder le Roy, mes il mesne prist les profitz, ceux terres fuerant extend al Roy in Scaccario.” The court of Exchequer voided the conveyances and gave the land to the king. The terms “direct” and “indirect” are the same as those in the Alien Statute in The Merchant of Venice. That play and 13 Eliz., c. 5 draw on a common language.
35 Lewis L. Theobald, ed., The Works of William Shakespeare, vol. 5 (London, 1803), p. 216. Geoffrey Bullough, Narrative and Dramatic Sources, 2: 11, condemns the horse stealing episode: “As it stands in both Q and F this is surely the worst-handled episode in all Shakespeare’s plays.” W. W. Greg, The Shakespeare First Folio (Oxford: Clarendon Press, 1955), p. 336, calls it “curiously fragmentary”; Robert S. Miola, “The Merry Wives of Windsor: Classical and Italian Intertexts,” Comparative Drama 27 (1993): 364–376, says it is “badly garbled.”
36 Normally the creditor would enlist a bailiff to execute the debt “upon the body” of the debtor: this is the language used in 1582, for example, in reference to the bailiff of the Manor and Liberties of Stebneth, who executed a debt of £100 against John Brayne. See Wallace, The First London Theatre, p. 91.
37 John Cowell’s Interpretor (1601) offers another possible gloss in the writ of arrestandis bonis ne dissipentur, “which lyeth for him, whose catell or goods are taken by another, that, during the controversie, doth, or is like to make them away, and will be hardly able to make satisfaction for them afterward.” Yet this writ fits the facts of the case imperfectly, since Falstaff did not take horses from Ford. Dr. Cowell was Reader in Civil Law at the University of Cambridge; he published The Interpretor in 1601. Ralegh believed he was a lackey to King James I, since he supported his view that the monarch was outside the law. See Keeton, Shakespeare’s Legal and Political Background, p. 342. Notice that Ford arrests not Falstaff’s horses but Falstaff. Keeton, Shakespeare’s Legal and Political Background, p. 114, observes that Antipholus threatens Angelo with a suit for wrong arrest in The Comedy of Errors. Other methods of distraint would be available after a judgment in court, which we may presume Ford has not yet sought. At that point a judgment creditor in the king’s court could send a sheriff to levy on the debtor’s animals by a writ of fieri faciat, employing a legal process that went back at least to 3 Edw. I, c. 18; elegit (a transfer of the debtor’s personal property to his creditor at an appraised price); and capias ad satisfaciendum (where a local sheriff arrests the judgment debtor, who stayed in prison until he paid his fine). See David G. Epstein, Debtor-Creditor Law, Nutshell Series, 4th ed. (St. Paul, Minn.: West, 1991), p. 66.
38 Indictments involving the theft of horses often included the value of the animal. J. S. Cockburn, Essex Indictments: Elizabeth I. Calendar of Assize Records (London: HMSO, 1978), lists prices in 1600: £6 each for a black and a sorrel gelding (#2973); 50 shillings for a gray mare (#2975); £3 for a gray gelding; £5 for bright-bay horse; £3 for a sorrel horse (#3011); £5 for a gray gelding, but 26 shillings for a white gelding (#3011). I owe this information on prices to Shawn Smith.
39 Daniel Kornstein, Kill All the Lawyers? Shakespeare’s Legal Appeal (Princeton: Princeton University Press, 1994), pp. 134–142.
40 See Jan Lawson Hinely, “Comic Scapegoats and the Falstaff of The Merry Wives of Windsor,” Shakespeare Studies 15 (1982): 37–54, 43. See also Stephen Foley, “Falstaff in Love and Other Stories from Tudor England,” Exemplaria 1 (1989): 227–246; and Anne Parten, “Falstaff’s Horns: Masculine Inadequacy and Feminine Mirth in The Merry Wives of Windsor,” Studies in Philology 82 (1985): 184–199.
41 See Thomas Collett Sandars, ed. The Institutes of Justinian (London: Longmans, 1952), p. xv; Posner, Law and Literature, p. 93.
42 H. J. Oliver, The Merry Wives of Windsor, p. lxvii, denies that there is a “gap” between the Falstaff who “loses the battle of wits after the Gadshill robbery and is not allowed to forget it” and the one who can so easily be made to look foolish by the kind of honest women of whom he has little experience, or between the Falstaff who is frightened of being found by a jealous husband and the one who ran away at Gadshill.” Like others, he observes that Falstaff’s defeat is necessary to the comic drama. Anne Barton, “Introduction to The Merry Wives of Windsor,” in The Riverside Shakespeare, pp. 286–289, concludes that Falstaff is a “lesser creature” because his character is “no end in itself” but an expression of the play’s comic plot (287), a point made also by E. K. Chambers, cited by G. R. Hibbard, “Introduction,” in The Merry Wives of Windsor, ed. G. R. Hibbard (1973; Harmondsworth: Penguin, 1981), p. 55.
43 A. C. Bradley, “The Rejection of Falstaff,” Oxford Lectures on Poetry (London: Macmillan, 1909), pp. 247–275.
44 See the last note to 2 Henry IV, in Samuel Johnson, ed., The Plays of William Shakespeare, 7 vols. (1765; New York: AMS, 1968), 4: 356: “The moral to be drawn from this representation is, that no man is more dangerous than he that with a will to corrupt, hath the power to please; and that neither wit nor honesty ought to think themselves safe with such a companion when they see Henry seduced by Falstaff.”
45 Justinian, The Digest of Justinian, ed. Theodor Mommsen, Paul Kreuger, and Alan Watson (Philadelphia: University of Pennsylvania Press, 1985), 1: 119: “Non fuit autem contentus praetor dolum dicere, sec adiecit malum, quoniam veteres dolum etiam bonum dicebant” (the praetor was not content to say fraud, but added the word false, since the ancients used to speak of good fraud too).