Crescit in orbe dolus
We now turn from literary representations of the features of fraudulent conveyancing law – from figures of speech, ethical dilemmas, the carrying away of women, and the protection of property – to the actual development of the law, not in Parliament, or in public opinion, but in court. Despite Glenn’s assumption that Star Chamber heard Twyne’s Case because of the political importance of the issue, its court was not yet the place of Stuart unpopularity. It issued fines, not indictments for felonies or treason; it used Chancery procedure; and it allowed the examination of witnesses at trial.1 It was an arm of the Privy Council, part of the Queen’s penal jurisdiction, but also a poor man’s court and, although not a criminal court, it was charged with keeping the peace. As Shallow says in first words of The Merry Wives, after his keeper is beaten by Falstaff’s men, his deer killed, and his lodge broken open, “Sir Hugh, persuade me not; I will make a Star Chamber matter of it” (I. i. 1).
Twyne’s Case focuses on two key issues. First, it explains the badges of fraud. Second, it argues that a previous ruling on 27 Eliz., c. 4 should also apply to 13 Eliz., c. 5. The phrase “good consideration” should mean not just any amount. To prevent collusion it should be read to mean “valuable consideration.” The case makes two other important points along the way. First, it shows why the penal clause in 13. Eliz., c. 5, which normally would require the strict construal of the statute, should be disregarded. This recognition, we shall see in the next chapter, informs Shakespeare’s manipulation of the Alien Statute at the end of The Merchant of Venice. Second, Twyne’s Case confirms Pauncefoot’s Case in expanding the phrase “and others” to include the Crown. This reading confirmed what was not otherwise certain, that the statute allowed the government to receive forfeitures.
Twyne’s Case tells the story of a successful suit by a creditor referred to only as C. The creditor sought to attach the sheep of a man named Pierce in payment for a debt, but Pierce conveyed them to Twyne by deed. Because Pierce conveyed the sheep to Twyne to avoid his debt, the Court of Star Chamber declared the deed void and allowed the creditor to obtain possession of the animals. Coke’s report instructs the reader that several indicators point to fraud: the gift to Twyne was made in secret, the sheep retained the owner’s original mark, Pierce had no other assets, and the deed suspiciously proclaimed itself bona fide. Moreover, Pierce made the gift after a creditor filed suit. Timing alone was not sufficient to establish his intent to defraud. There was also a trust, the fifth badge of fraud the court lists: “Here was a trust between the parties, for the donor possessed all, and used them as his proper goods, and fraud is always apparelled and clad with a trust, and a trust is the cover of fraud” (Ici fuit trust enter les parties, car le donor possesse tout, & use eux come ses biens propres, & fraud est touts soits apparel & clad [avec] trust, & trust est le cover de fraud, 3. Co. Rep. 81a).
What the case means by “a trust” is not easy to determine. As proof of the trust, the case says that “the donor possessed all, and used them as his proper goods.” But that statement merely repeats the second indicator of fraud, which says, more fully, that “the donor continued in possession, and used them as his own; and by reason thereof he traded and trafficked with others, and defrauded and deceived them” (Le donor continue en possession, use eux come owner de eux, & per reason de ceo il trade & trafficke [avec] auters, & eux defraude & deceive, 3 Co. Rep. 81a). The fifth rubric, “here was a trust made between the parties,” leaves the distinct impression that by trust, Coke means collusion; or put another way, Pierce and Twyne were two friends who devised a plan to save Pierce’s assets from ruthless creditors.
Several factors indicate a collusive friendship between Pierce and Twyne. First, Pierce owed money to Twyne as well as to C., but he chose to pay Twyne. The facts of the case say Pierce was indebted to Twyne for £400 and to C. for £200. He had goods to the value of £300, and these he deeded to Twyne. Second, when C. sent the sheriff of Southampton with a writ of fieri facias to levy on Pierce’s goods, “diverse persons, by the command of the said Twyne” resisted him (divers persons per commaundement del dit Twine [avec] force resist le vicount, 3 Co. Rep. 80b).
In fact, Twyne and Pierce were probably not friends, but Coke leaves out facts that would undercut the story of trust and collusion he is telling. The same case is reported by Sir Francis Moore, serjeant of law, under the title “Chamberlain vers Twyne & auters.”2 Chamberlain (his first name is Brian) is therefore the unidentified C. of Coke’s report, and we may speculate that Coke deliberately did not identify him. By only naming Pierce and Twyne he created a sense that the two were the dominant actors, working together. The use of Chamberlain’s initial also seems to have allowed Coke to combine several creditors into one. Pearce (as Moore spells him) also owed £1300 to a man named Awdley, for which sum it seems Twyne was also obligated (“Twyne fuit lye per obligacion anno 38 Reg. [avec] luy al Awdley”). When yet another creditor, named Warburton, threatened to sue Pearce for yet another debt, according to Moore’s account, Pearce had a scrivener named Proctor backdate a general deed of gift of all his goods. The deed purported to protect Twyne from the debt he owed Awdley (“de saver luy harmless d’un vray & due debt”). If it seems that Pearce was acting as a friend to Twyne, it is just as possible that Twyne insisted on the deed as a businessman, or as the facts in Moore’s report suggest, that Twyne never knew about the conveyance. For the making and sealing of it was done in the absence of Twyne, the donee (“Twyne ne fuit al feazance ne sealing de ceo, mes ceo fuit fait en son absence”). Twyne never had possession of the deed, which was kept by Pearce’s brother (“Twyne nunqzs avoit possession del fait, mes ceo fuit gard per le frere de Pearce”).
Coke does not mention that Twyne himself was not present at the riot when the sheriff sought to impound the sheep (“faire execucion”), nor does he make clear that neither Pierce nor Twyne expressly ordered their servants to interfere with the sheriff. According to Moore, Twyne himself later sued Pearce for the debt owed to him. Such a suit hardly helped Coke make the case for a trust, and he left it out. In his version everyone is convicted of riot.
Moore’s version stresses the role of the family in fraud, and the emphasis is on Pearce. It was Pearce who hired a scrivener and instructed him to backdate a deed and use all his skill to make it look legitimate (“fuit antidated [avec] direction de faire son skill de preventer Warburton”). It was Pearce’s brother who held the deed, and Pearce’s family that used the goods that by deed belonged to Twyne. Both versions list circumstances that indicate fraud. But only Coke includes “a trust between the parties.” Coke tells a story of collusion, and he points a finger at Twyne.
The explanation of what Coke means by trust occupies the second part of the report. Both versions of the case agree that the court ruled that even though the save-harmless deed was made on good consideration, because Twyne was owed money, the gift was fraudulent under 13 Eliz., c. 5. Moore goes no further. Coke, however, includes a long discussion of why “good consideration” was not sufficient to sustain the validity of Pierce’s gift. (The term gift applied to a feoffment in fee that passed without conditions; a “gift” usually included a consideration, or payment.)3 Coke’s argument is legal in the strictest sense. It starts with the words of the final proviso of 13 Eliz., c. 5, in particular the word “and” before bona fide: “Provided also… that this act… shall not extend to any estate or interest in lands…. had, made, conveyed, or assured, or hereafter to be had, made, conveyed, or assured, which estate of interest, is or shalbe upon good consyderation, and BONA FIDE.” In Twyne’s Case, Coke reminds readers of the significance of that word “and,” which is that both elements of the final proviso must be met: “notwithstanding here was a true debt due to Twyne, and a good consideration of the gift, yet it was not within the proviso of the said act of 13 Eliz…. for although it is on a true and good consideration, yet it is not bona fide” (nient obstant que icy fuit [vraie] dett due al Twyne, & bone consideration del done, uncore ceo ne fuit deinz le provisoe del dit acte de 13 Eliz…. car conit que est sur voier & bone consideration, unz nest BONA FIDE, 3 Co. Rep. 81a). For Coke, collusion kept the conveyance from falling within that part of 13 Eliz., c. 5 (the “proviso”) that allowed debtors to make certain transfers.
Good faith is the element missing when there is a trust. To illustrate his point, Coke creates a hypothetical case, which he addresses to the reader, to show how there can be good consideration and also bad faith. He posits the example of a man who owes several people £20 each. Holding goods to the value of £20, he makes a gift of the goods to one of the creditors. He does so with the understanding “that the donee shall deal favorably with him in regard of his poor estate, either to permit the donor, or some other for him, or for his benefit, to use or have possession of them, and is contented that he shall pay him his debt when he is able.” Coke then declares that the man in the hypothetical shows bad faith for three reasons. First, when a debtor makes a preference of one creditor over another, it should be done in public, since secrecy is a mark of fraud. Second, goods and chattels should be appraised fairly. Third, Coke warns, be sure to take possession of the gift, since “continuance of the possession in the donor, is a sign of trust.” Coke’s hypothetical is obviously based on the facts of the main case, so much so that the story itself leaves out a detail crucial to the three-part moral. Coke forgets to say that the debtor paid his friend and made arrangements for lenient treatment in secret. His oversight is not uncommon among English Renaissance writers of prose fiction, who often forget where they leave things like characters, hats, and horses.
Having relied on the circular reasoning of a made-up story to illustrate lack of good faith, Coke turns to the other half of the final proviso of 13 Eliz., c. 5, which says that a gift is good if made with “good consyderation.” He analyzes what, exactly, is meant by good consideration, starting with the distinction between good consideration and valuable consideration. “Good consideration” (bone consideration) is “consideration of nature or blood” (Consideration de nature ou sanke), while “valuable consideration” (valuable consideration), Coke’s examples show, refers to money or the equivalent (3 Co. Rep. 81a–b). To make the distinction clear Coke resorts back to his hypothetical case and changes the story a little. Instead of coming to a secret agreement with one of his five creditors, this time the debtor gives all his goods to his son in consideration of “natural affection” (natural affection), so that the debtors all lose their debts. Although the statute clearly validates a gift made bona fide and with “good consideration,” Coke says that “equity requires, that such gift, which defeats others, should be made on as high and good consideration as the things which are thereby defeated are” (car equitie require que tiel done que defeat auts serra fait sur vy haute & bone consideration come le choses que son per ceo defeat sont, 3 Co. Rep. 81b). In this case the “good consideration” of natural affection is not as “high and good” as the “valuable” consideration of an actual debt.
To shore up his hypothetical, Coke inserts additional information in the form of proverbial wisdom. He does so when he explains that no father makes a gift to his son without cause. “It is to be presumed, that the father, if he had not been indebted to others, would not have dispossessed himself of all his goods, and subjected himself to his cradle” (& est etre presume que le pier sil navoit estre endebt al autres, ne voile dispossesse luy mesme de touts ses biens, & de subjecter luy meme a son cradle). By cradle Coke means a man’s child. He reads the statute according to his own conception of reason and tells a tale of moral philosophy about parents and children. (Ironically, 16 years later he lost control of a daughter, who was carried away by his estranged wife.)4
Buoyed by his hypothetical narrative and looking for ways to persuade the court to make “good consideration” in 13 Eliz., c. 5 mean “valuable consideration,” Coke distinguishes expressed from implied trusts, or frauds as to creditors. An express trust appears from a writing; an implied trust “is, when a man makes a gift without any consideration, or on a consideration of nature, or blood only.” Coke then associates the “trust” he finds between Pierce and Twyne – a trust that Moore does not mention – with the trusts that existed before 1535.5 Coke recognizes that the persuasiveness of his argument turns not only on a story – his hypothetical – but on the court’s accepting the moral of his story, that fraud is always on the increase and laws must be redefined to keep up with changing patterns of deception. To drive this home he steps back, ruminates on the work of Parliament, and draws on the Latin humanist tradition:
To one who marveled what should be the reason that acts and statutes are continually made at every parliament without intermission, and without end, a wise man made a good and short answer, both which are well composed in verse:
Queritus, ut crescunt tot magna volumina legis?
In promptu causa est, crescit in orbe dolus.
[If you ask why are there so many laws, the answer
is that fraud ever increases on this earth.]
And because fraud and deceit abound in these days more than in former times, it was resolved in this case by the whole court, that all statutes made against fraud should be liberally and beneficially expounded to suppress the fraud.
It should be clear by now that the report of Twyne’s Case is not only the decision of the court, but the brief that Coke brought to court. That is why Moore does not mention most of this material and why it contains a huge hypothetical and the humanist distich on fraud. To make his case that the phrase “good consideration” should be read to mean not natural affection or blood but “valuable” consideration, it helped Coke to be able to show that a court had already crafted an expansive reading of 13 Eliz., c. 5.
One point of Coke’s discourse, then, is to convince the judges that 13 Eliz., c. 5 should be broadly construed, not read narrowly the way penal statutes were interpreted. Two lines of cases showed how the courts had already widened the statute. First, the courts related it to the common law on fraud and did not treat it as a penal statute. Second, the cases had already given a broad reading of the phrase “and others.” Mannocke’s Case (1571), for example, which cites 13 Eliz., c. 5 within a year of its passage, illustrated the problems of an overly narrow reading of a law against fraud.6 It relates to a common form of fraudulent conveyancing that occurred when the administrator of a deceased person’s estate sought to deceive creditors of the deceased by conveying lands to friends and receiving profits himself. In this case a widow obtained administration of her dead husband’s goods and chattels. She then sold them. After she died, a rival authority – the ordinary, not the Commissary – awarded her son administration of his father’s estate. He sued a man, named Mannocke, who had purchased from his mother. The son was allowed to void the conveyance to Mannocke, but the court seems unhappy with its decision.
In Renaissance England, as in America until the reform of civil procedure, strict forms of a pleading often determined cases. The court pointed out that Mannocke could have won had he not pleaded that Nicholas, late Bishop of London, had committed the administration to the widow. He should have referred merely to an administration in general. The problem was that no notice of the assignment was found on the Bishop’s Register, suggesting that the widow acted on her own and therefore defrauded the estate. Had Mannocke pleaded the former administration generally, the court would have found “a doubt” of the widow’s guilt and ruled in his favor. By including this internal dissent against its own ruling the court indicated a conflict between the forms of pleading and the common law’s traditional abhorrence of fraud.
Mannocke’s Case (3 Dyer, 295a [1571]) helped open the door to a broad reading of 13 Eliz., c. 5 by including a list of similar cases where conveyances were voided even before passage of the statute. This list supports Coke’s claim, in Twyne’s Case, that the statute did not make new law but merely “declared” the common law’s condemnation of fraud. In one of the earlier cases cited in Coke’s report, “a man condemned” made “a gift of goods to delay execution, and he himself took the profits.” In other words, he knew his conveyance would be voided but hoped that the law’s delay would allow him to harvest his crops in the meantime, allowing him to earn money. Such a situation explains the inclusion of the word “delay” in the phrase delay, hinder, or defraud,” which occurs in 13 Eliz., c. 5 as well as in modern statutes. Other cases are cited to show how debtors who took sanctuary were regarded as having delayed payment of their debts. In the same vein Mannocke’s Case cites the much earlier case of Walter de Chyrton, a customer (that is, collection agent) of the king. Chyrton purchased lands with the king’s money and passed the estates to his friends, keeping the profits for himself. He thus defrauded the king by direct and indirect means (language that arises in The Merchant of Venice when Portia accuses Shylock of contriving against Antonio’s life “directly” and “indirectly”). These early cases show that statutes were not the only weapon available to fight fraud.
Penal statutes had to be strictly construed, every element proven, because they inflicted punishments, and 13 Eliz., c. 5 had a penal clause. Relying on the line of early cases against fraud, in 1591 the King’s Bench observed in Gooch’s Case that 13 Eliz., c. 5 provided that Acts of Parliament made in prevention or suppression of fraud ought to have “a favourable interpretation” (5 Co. Rep. 60). This ruling helped define the statute not as a penal law, which would require strict construction, but as a measure to prevent fraud, allowing a broad interpretation of the statute. The court held that because frauds were usually concealed, a plaintiff did not have to plead a feoffment. “To drive the plaintiff, who is altogether a stranger to it, to plead the foeffment (whereof he hath no knowledge) and that it was made by fraud, &c. would be mischievous and against law and reason.”
Adding to these wider readings of 13 Eliz., c. 5, Pauncefoot’s Case in 1594 explained, according to Coke, that the word “forfeiture” included “every thing which shall by law be forfeit, to the King or subject” (3 Co. Rep. 82b). That precedent allowed the court in Twyne’s Case to hold that the phrase “and others” in 13 Eliz., c. 5 could be read to include anyone who had a cause of action that was hindered, delayed, or defrauded by a conveyance, including “all others who had cause of action, or suit, or any penalty, or forfeiture” (3 Co. Rep. 82a), including the Crown. If we trust Coke’s account of Pauncefoot’s Case, it therefore took 23 years for an English court to notice that 13 Eliz., c. 5 was available as a weapon against recusants. This delay fits the general trend of the times, which saw the greatest pressure being applied to recusants not back in 1571, but during the 1590s.
In fact, commercial concerns predominated in cases that cited 13 Eliz., c. 5 after 1571, many decided by men who would participate in Twyne’s Case. The case of “Leonard against Bacon” (Cro. Eliz. 234) shows that although a tenant made valid gifts to different people, when those who had a cause of action in the same lands sued, his conveyances were “void against him.”7 Common Pleas heard the case in 1591. Sir Edmund Anderson presided as Chief Justice, Sir John Popham was Attorney General, and Sir Thomas Egerton was Solicitor General.
A third line of decisions, which limited plaintiffs to actual creditors, showed that these men respected what Parliament had written. In 1595, a jury determined that during his lifetime, one Craven “made a Deed of Gift of all his Goods to Dixson, and they found likewise that this Deed was to defraud Creditors, against the form of the Statute.” Therefore the court found that the deed was void against Dixson when Kitchin brought suit against him as executor of Craven’s estate.8 The same year, in Packman’s Case (6 Co. Rep. 18b) the court of King’s Bench clarified the rule that if a “gift be by covin, it shall be void by the statute of 13 Eliz. against a creditor, but it remains good” against others (including, in this case, an administrator). The situation is similar to Mannocke’s Case, as it involved the estate of an intestate (one who dies without a will) and two competing administrators. In Packman, the ordinary committed administration to a stranger, but at the request of the next of kin, the spiritual court repealed that administration. Meanwhile the first administrator sold the deceased’s goods, seemingly a fraudulent conveyance against the next of kin. When the second administrator brought suit, it was resolved that the action did not lie, for the first administrator made the conveyance while he had the property in him, before it was revoked. The court ruled that although the gift would be void against a creditor by 13 Eliz., c. 5, it remained good against the second administrator.
Justice Anderson was also involved in “Upton against Basset” (Cro. Eliz. 445) a year later, which made the same point, that a fraudulent gift “is not fraud by the 13 Eliz., c. 5 against all, but only against his creditor.”
Finally, in 1599 in “Bethel against Edward Stanhope,” another case involving an executor, Francis Vaughan made a gift of his goods to his daughter before he died “with a condition [that] upon payment of 20s. that it should be void.” The revocability of the gift indicates the fraud. The whole court held that the gift of the goods “is in itself fraudulent, as appears by the condition; and the covin is expressly found by the jury; and then it is utterly void against the creditors by the 13 Eliz. c. 5, and the intestate died possessed of them” (Cro. Eliz. 810). Even though the daughter took the goods, they remained as assets in the estate of the deceased “and the goods by law remained always in his possession” (Cro. Eliz. 811).
Coke worshipped the past, and past cases, as the source of the common law’s greatness. He believed that the learning of the ages put the wisdom of the law above the knowledge or insight of any one man, including the sovereign.9 Yet the logic of Twyne’s Case is more sobering. Emotions aside, the important point is that a statute could be judicially construed to meet the challenges of the current times. A broad reading allowed the court to accept a redefinition of “good consideration,” ignore the penalty clause because criminal statutes must be narrowly construed, and to let the whole statute be “expounded beneficially to suppress fraud.”
The final section of Coke’s reading of 13 Eliz., c. 5, as it appears in Twyne’s Case, reinforces the argument, this time by analogy with 27 Eliz., c. 4, that a statute against fraud requires a broad reading. The holding is perhaps unclear, because the example involves a discussion of what constitutes “good consideration,” which is relevant to but does not fully explain the course of Coke’s larger argument against collusion. The first case cited is “Standen against Bullock,” decided the year before Twyne’s Case in Common Pleas, where Anderson was Chief Justice. The case involved a conveyance made with power of revocation, and then a bargain and sale. According to Coke’s reading of 27 Eliz., c. 4, a voluntary conveyance with power of revocation should not “stand against a purchaser bona fide for a valuable consideration” (3 Co. Rep. 82b). The hitch in this case was that the statute seems to specify a present power of revocation, but the conveyance at issue included a future power of revocation (“as after the feast, or after the death of such one,” Coke explains [3 Co. Rep. 82b]). Nonetheless, the case had shown that “the said Act should serve for little or no purpose, and it would be no difficult matter to evade it” unless this “small addition” were made to prevent an “evil intention” (3 Co. Rep. 82b). Coke did not miss the point: the court in “Standen against Bullock” had read 27 Eliz., c. 4 broadly to prevent fraud.
Coke cites a second case not just to define fraud or consideration but “on the same reason,” to support his point that judges ought to construe a statute to fulfill its purpose. In Colshil’s Case, decided in Common Pleas in 1596, where Coke next turns the reader’s attention, a valid covenant to repay a sum of £300 occurred in an indenture (or contract) that was otherwise illegal because it violated a statute, 5 Edw. VI, c. 16, which restricted the deputation of office. The judges decided that the debt was void, because otherwise “the statute would serve for little or no purpose” (3 Co. Rep. 83a).
Having established the prerogative of the courts to give point to Parliament’s statutes, Coke returns to “Standen against Bullock” and presents a hypothetical that apparently had been offered by the Court of Common Pleas in that case. Again his point is to show how the court had analyzed a statute in the past and should do so again. In his report on Twyne’s Case Coke explains that 27 Eliz., c. 4 has two parts. The first makes void, as against any purchaser for “money or other good consideration,” any conveyance made to “defraud and deceive.” Otherwise the conveyance stands. The second part of the statute enacts that a conveyance made with power of “revocation, determination, or alteration” is void as against any conveyance made “for money or other good consideration paid or given.” The court in “Standen” apparently crafted a hypothetical situation to illustrate and resolve a possible conflict between the two sections. A conflict would arise if a valid purchaser took property that had been conveyed twice previously, once with power of revocation and once in a way that extinguished the power of revocation because there was intent to defraud. To resolve this complex conflict of interests, the court said that the valid purchaser should take the property. By the first clause of the statute, the conveyance that extinguishes the power of revocation is void because the defendant made the conveyance with intent to defraud. The second clause of the statute made a conveyance with power of revocation void as to a valid purchaser. Coke then concludes, “And it was said, that the statute of 27 Eliz. hath made voluntary estates made with power of revocation, as to purchasers, in equal degree with conveyances made by fraud and covin to defraud purchasers” (3 Co. Rep. 83a). Something had to give.
What is the force of Coke’s comment that follows from the hypothetical, not the facts of the case? Its purpose is rhetorical, persuasive, to help Coke dismiss the objection that despite the appearance of fraud, Twyne should go free because he gave good consideration (he was owed money) for the goods Pierce conveyed to him. The phrase “and it was said” indicates that the judges realized there was some anomaly in a statute that equates a voluntary estate made with power of revocation, a common practice, with a conveyance made by fraud and covin. The hypothetical shows not that the two conveyances are in fact equivalent, but that to make the statute work to prevent fraud, they should be considered so. Coke then cites “Upton and Basset” again to make the point that the statutes only make the conveyances void as against the purchaser, that they are otherwise valid. Since the purchaser took a lease “without fine or rent reserved,” he was not a purchaser, and therefore could not void the previous lease, even though it was made by “fraud and covin” (3 Co. Rep. 83a).
The rest of Coke’s report on Twyne’s Case considers instances where a purchaser is not a purchaser in the sense required by the statute. Coke proceeds at length because what “Upton against Basset” decided for 27 Eliz., c. 4, that good consideration must mean valuable consideration, is the very point that Coke wants to prove with regard to 13 Eliz., c. 5. Yet he cannot argue the analogy directly. He cannot say that “good consideration” should mean the same thing in 13 Eliz., c. 5 as it now does in 27 Eliz., c. 4. As a penal statute, 13 Eliz., c. 5 should have been narrowly construed. But having made the case for a broad reading of 13 Eliz., c. 5 as a statute to prevent fraud, Coke now uses the differentiation of purchasers to rehearse the logic that the court should apply to redefine “good” consideration.
In Upton the court distinguished what was paid from what was given. Although 27 Eliz., c. 4 twice – once in the preamble and once in the body of the statute – refers to “money or other good considerations” paid by a valid purchaser, in the portion concerning power of revocation, a revocable conveyance is void as against another conveyance made “for money or other good consideration paid or given” (Twyne’s Case [3 Co. Rep. 83a] summarizing “Upton against Basset” and correctly citing language in 27 Eliz., c. 4; my emphasis). The additional words “paid or given” establish the point Coke wants. The Upton court apparently read the phrase correlatively, attaching “money” to “paid” and “good consideration” to “given.” But whereas “good consideration” traditionally referred to “considerations of nature or blood, or the like” (3 Co. Rep. 83a–83b), that meaning had to be excluded from 27 Eliz., c. 4, because – and here is the telling point – nature and blood cannot be “given.” One does not hand over kinship and family. It is, we may say, always already there. Coke concludes that the phrase “money or other good consideration paid or given” (3 Co. Rep. 83a) was “intended only of valuable consideration which may be given” (3 Co. Rep. 83b; my emphasis). The logic of the law lies in the chiasmus. Good consideration does not mean good consideration. It means valuable consideration.
Next Coke supports the point that purchasers can be of different quality by referring to Nedham and Beaumont’s Case. Although determined in 1590, the case considered facts dating back to 1566.10 A man named Babington covenanted with a Lord Darcy, whose sister was Babington’s wife, to settle a certain manor on his children, but then by “fraud and covin, to defeat the said covenance,” he made a lease of the manor to someone else. His children were purchasers “in vulgar and common intendment” of a right to their settlement (3 Co. Rep. 83b). (The children were purchasers because they were given rights to the manor by the covenant; they did not inherit the rights. A purchaser is one whose property right comes by any means other than inheritance, including gift, sale, forfeiture, theft, or shipwreck.) But they were not purchasers in the sense that would apply to 27 Eliz., c. 4, because “natural affection is good consideration but not such good consideration which is intended by the statute of 27 El” (3 Co. Rep. 83b).
Finally, Coke returns to a last point made by Anderson in Common Pleas in the case of “Upton against Basset.” Because Coke makes it sound as if the point refers to an actual case, his reference is hard to understand. Fortunately we possess a fuller account of Upton (Cro. Eliz., 445) and can see that the case is actually a hypothetical made up by Anderson to demonstrate that a purchaser is not necessarily a purchaser under the statute, even where he pays consideration. He is not a “purchaser” under the statute, for example, when he operates unlawfully. The law will not recognize as a “purchaser” one who buys from a seller of “small understanding.” The case report ends there. Where Anderson had redefined the term “purchaser” on moral grounds, Coke’s lengthy case report uses Anderson’s own precedent of redefining a term to support the redefinition of “good consideration.” Twyne’s consideration was “good” but not good enough. Coke’s arguments about collusion and a broad reading of a statute were necessary to make 13 Eliz., c. 5 effective.
Like any good appeals court lawyer, Coke uses past decisions – particularly those handed down by the judges he faces – to support his argument. He also tells some good stories, only his literary form is not romance or comedy, but the case report. One of his stories sounds like something Sidney would write, the triumph of reason as the law slowly developed sound rules to control the passions of men. Another involved questions similar to those raised in the Aemylia episode in Book IV of The Faerie Queene, which asks what is worth more, “The deare affection unto kindred sweet, / Or raging fire of love to woman kind, / Or zeale of friends combynd with vertues meet” (IV. xi. 1). Spenser made his point in a story that cries out for elucidation, as do so many of his pageants and spectacles, and they do so because they are presented as riddles that have more than one answer, part of a poetic tradition that was obviously influenced by medieval schools. Poetry and the law have a common root in logic and rhetoric. But where the poet used a story to raise questions about competing values, Coke used hypothetical stories to make sharp points, to resolve contradictory statements by the law.
A third narrative strand finds Coke appropriating the very bone and fiber of Anderson’s earlier decisions and applying them to a similar statute. In so doing, he behaves like that protean imitator of language and manners, Falstaff. Twyne’s Case ends with an action on a riot, for “by the judgment of the whole court Twyne was convicted of fraud, and he and all the others of riot.” That is where The Merry Wives of Windsor, written in the same years, begins: “The Council shall hear it, it is a riot” (I. i. 35). It is strange that Pierce – the villain in Moore’s account – is for some reason not convicted of fraud, or at least not mentioned. Strange, too, that Windsor society forgives Falstaff his trespasses.
A final story sounds like The Merchant of Venice, because the law regarded what might be considered an act of friendship – Twyne’s helping Pierce – as a form of collusion that jeopardized creditors. Was Twyne doing a good deed? Was Shylock? Coke portrays Twyne as a colluder, attacks him for being a good friend, when it may be he was merely a victim of Pierce’s frauds. Similarly, as the next chapter shows, Shylock looks bad but his debtor Antonio is no saint.
1 See G. R. Elton, The Tudor Constitution (Cambridge: Cambridge University Press, 1960), p. 101, and his Star Chamber Stories (London: Methuen, 1958), p. 16.
2 See Cases Collect & Report per Sir Fra. Moore Chevalier, Serjeant del Ley (London, 1688), p. 638, cited by lawyers as Moore 638.
3 See R. B. Pugh, Calendar of Antrobus Deeds Before 1625 (Devizes, 1947), p. v.
4 On July 12, 1617, Coke charged his wife, Lady Haton, with “conveying away her daughter clam et secrete.” See Catherine Brinker Bower, The Lion and the Throne: The Life and Times of Sir Edward Coke (1552–1634) (Boston: Little, Brown, 1957), p. 404. The king ordered her return.
5 Coke writes only 27 H. 8., but he must have in mind 27 Hen. VIII, c. 10, “An order for Uses and Wills.” The preamble to that statute tells how once lands passed by “livery and seisin… made bona fide without covin or fraud,” but now “divers and sundry imaginations, subtle inventions and practices” allow conveyances that create “secret uses, intents and trusts, and also by Wills and Testaments, sometime made by nude parolx and words, sometime by signes and tokens.” Such “fraudulent feoffments, fines, recoveries, and other like assurances to uses” have disinherited many lords, who have lost their “wards, marriages, reliefs, heriots, escheats, aids pur fair fitz chivaler et pur file marier, and scantly any person can be certainly assured of any lands by them purchased.” The king has lost the lands of “felons attainted… to the utter subversion of the ancient common Laws of this Realm.” For more on uses and fraud, the mechanics of which are beyond the scope of this book, see A. W. B. Simpson, A History of the Land Law (1961; 2nd ed., Oxford: Clarendon Press, 1986), pp. 183–184.
6 Michaelmas Term, 12 & 13 Eliz., Dyer 295a. See The English Reports (Abingdon, Oxfordshire: Professional Books, 1979), vol. 73, pp. 661–664. Sir James Dyer, a justice under Queen Elizabeth, kept reports of some of his cases that were published as Cy ensuant alcun novel cases (London, 1585).
7 The text is that of Sir George Croke, a justice of the King’s Bench and Common Pleas, who published reports of some of his cases.
8 Gouldsborough 116. See Reports Of that Learned and Judicious Clerk J. Gouldsborough, Esq…. His Collection of choice Cases… With Learned arguments at the Barr, and on the Bench, and the grave Resolutions, and Judgements, thereupon, of the Chief Justices, ANDERSON, and POPHAM, and the rest of the Judges of those times… With short Notes in the Margent… By W. S. of the Inner Temple, Esq. (London, 1653), p. 116. Gouldsborough was a justice of the Court of Common Pleas and other courts from 1586–1602.
9 For a good introduction to Coke’s conception of the roots of the common law, see J. G. A. Pocock, The Ancient Constitution and the Feudal Law (New York: Norton, 1967).
10 See Les Reports du Treserudite Edmund Anderson Chivalier, Nadgairs, Seigniour Chief Justice del Common-Bank. Des mults principals Cases argues & adjuges en le temps del jadis Roign Elizabeth (London, 1664), p. 233.