The interplay between debtors and creditors is usually told as the historical ebb and flow of sympathy from one figure to the other. According to the conventional wisdom, Shylock represents the old medieval hatred of the powerful creditor. Where creditors are villains, debtors and conveyers like Antonio and Bassanio are heroes. If there is a little fraud, as in Portia’s ruling in court, Antonio’s adjustment of Shylock’s punishment, or even Portia’s demand that her husband give her a ring she knows he is pledged to keep, it is for a good cause. Usury laws, dating from the thirteenth century, encouraged a popular image of creditors as villains, often an outsider, as in the image of the Mediterranean Jew found in Shakespeare’s play and his source. But the culture was shifting even as Shakespeare wrote. Usury laws were relaxed during Elizabeth’s reign, and new bankruptcy laws helped create a picture of the debtor merchant as “an elusive social deviant.” A few years later after The Merchant, Thomas Dekker’s satiric portrait of Sir Politic Bankrupt, who borrows freely and ruins other men by not repaying them, illustrates the growing Renaissance distrust of dissolute debtors. Dekker’s play The Seven Deadly Sins of London (1606) condemns the man who borrows other men’s gold or merchandise, then absconds or barricades himself in his house and offers cheap composition to his helpless creditors.1 The real issue in both plays is not who was a bad person. It is to what extent frauds, deceptions, concealments, and conveyances would be legal to protect property from creditors, including the state.
Fraud ever increases in the world – crescit in orbe dolus–and had been doing so long before changes in the English property laws and the Statute of Uses complicated matters. In Clouds, by the Greek playwright Aristophanes, a debtor named Strepsiades hires a witch of Thessaly to charm the moon from the sky, because the custom of the Greeks was to settle debts monthly at the new moon. If the moon should happen not to rise, Strepsiades will not have to pay. His strategy provokes his creditor into hiring a second witch, however, not only to keep the moon in heaven, but to speed its rising so he can obtain his money sooner.2 Thomas Wilson, who sat in Parliament and was of the queen’s Privy Council during the period discussed in this book, cites the play in his Discourse Against Usury.
As the law of fraudulence conveyance developed in the period from 1571 to 1601, the connection between the rights of creditors and the needs of the Crown created a broad field of play for Sidney, Spenser, and Shakespeare. Garrard Glenn believed that 13 Eliz., c. 5 was passed solely for political reasons, to persecute Catholics. This conclusion is unwarranted; nonetheless, the crown had a role in the development of the law. For centuries the kings of England sought to protect their own interests against citizens who evaded taxes, wardships, escheats, and forfeitures. Yet they also helped protect families against those who would carry off women for marriage. The fiction writers do not represent the law directly: we never see an escheator, or a creditor, argue that a court should void a conveyance. But the writers we have considered do offer literary representations of what was a general cultural practice in Renaissance England. Moreover, each of these men witnessed the formation of the law and knew people who used deceitful conveyances to protect their estates. As citizens they understood the ethical issue that makes fraudulent conveyancing a concern even today: the problem of balancing moral precepts against personal circumstances and responsibilities. As authors they knew how to invent metaphors based on the problems of debtors and enrich their texts with the language of conveyancing.
After 1601, and the clarification of the law by Twyne’s Case, debate over the law grew less intense. In 1603, between the Quarto and Folio versions of Merry Wives, King James’s First Parliament made a fraudulent conveyance an act of bankruptcy (the law applied only to merchants).3 The next act of this legal history occurred in 1623 when James’s new bankruptcy bill (21 Jac., c. 19) incorporated the specific language of 13 Eliz., c. 5 and Twyne’s Case, which survives to this day in many US states (“to delay, defraud, or hinder” creditors and others). The bill limited the fraudulent conveyancing provision to amounts of £20 or more, uncannily echoing Falstaff’s debt to Brooke in The Merry Wives. The bill also set a threshold amount for litigation, saying a debtor’s obligations must be £100. This provision also echoes Shakespeare’s play, since it is the amount that Fenton offers the Host to help him convey away Anne Page. Finally, the bill provided that if the debtor did not reveal the transfer on examination, he should suffer the pillory and loss of one ear – the legal equivalent to the pinches the fairies inflict on Falstaff when he dresses himself as Herne the Hunter. Whatever its influence – I would not want to insist on a direct connection – Shakespeare’s play accurately reflects English economic life.
Fraudulent conveyance laws did not change much in England or in the colonies for the next several centuries. Although later cases fine-tuned the badges of fraud and extended the reach of laws to protect purchasers, the foundation laid in the period between 1571 and 1601 remained firm. The growing complexities of commerce and the development of contract law led to the Statute of Frauds in 1677. But that famous landmark is really about when some kind of written document is required, not the problem of discerning an intent to deceive. By the eighteenth century, overt politics no longer hovered over the fraudulent conveyance statute: Lord Hardwicke, Chancellor from 1737 to 1756, simply believed that the phrase “and others” was inserted to cover those who became creditors after a conveyance.4 For the most part the struggle to craft fair rules ended with Twyne’s Case.
Although the written law was fixed, it remains true that the fine line between prudent self-protections and deceitful practices will never be completely stable. “The fraud of men was ever so” – so goes the refrain in Twelfth Night, which applies to debtors as well as lovers, and those who are both. Falstaff will not be the last word, but an inimitable reminder that Shakespeare lived and worked in a great age for fraudulent conveyances.
1 Robert Weisberg, “Commercial Morality, the Merchant Character, and the History of the Voidable Preference,” Stanford Law Review 39 (1986): 3–138, 16, draws attention to this passage as well as to changing conceptions of debtors and creditors.
2 Thomas Wilson, Discourse upon Usury by Way of Dialogues and Orations (London: Augustus M. Kelley, 1963), p. 339.
3 The issue in Elizabethan times was the trade rule in bankruptcy, which was added to the 1543 statute in 1571. After 1571, courts gradually clarified what manufacturers of tangible goods could be covered by bankruptcy law: shoemakers in 1592, drapers in 1610, dyers in 1621, bakers in 1623, and carpenters in 1688. See Weisberg, “Commercial Morality,” pp. 22–24. Much later the issue would become discharge or the modern “fresh start.”
4 William Roberts, A Treatise on the Construction of the Statutes of 13 Eliz. c. 5 and 27 Eliz. c. 4, Relating to Voluntary and Fraudulent Conveyances (1800; 3rd American ed. Burlington, Vt.: Chauncey Goodrich, 1845), p. 13, citing Lord Hardwick in Taylor v Jones, 2 Atk. 601.