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Elizabethan Literature and the Law of Fraudulent Conveyance: Sidney, Spenser, and Shakespeare.

Elizabethan Literature and the Law of Fraudulent Conveyance: Sidney, Spenser, and Shakespeare. By Charles Ross. Aldershot, UK: Ashgate, 2003. xix + 142 pages.

The revival of studies relating English Renaissance literature to history has produced a particular offshoot: scholarship that focuses on the relationship between the literary and the legal. Early studies in this field tended to treat law as a self-defined discipline distinct from the realm of fiction, as a monovocal genre which served to "explain" the meanings of various allusions in literary texts, or as an element in a biography that might explain a writer's lost past or literary interests. (Studies of "Shakespeare a lawyer" capture this latter idea most clearly.) More recent considerations of the relationship between these two fields have built on the knowledge of earlier historians, but they have also recognized the unstable rhetorical and social bases of the law itself, and they have begun to question the absoluteness of the formal boundary between law and literature, especially in the early modern period. Instead of focusing on law's instrumental purposes or its desire to hermeticize and codify its authority, these studies focus on the historical subtleties and motivated rhetorics that compose law. In doing so, they enable us to perceive the multifaceted relationships between legal and literary practices in a more nuanced way. In Elizabethan Literature and the Law of Fraudulent Conveyance, Charles Ross offers a cogent, carefully researched contribution to this scholarship, exploring the reasons that laws about fraudulent conveyance dominated English legal and literary discourses between 1571 and 1601. As Ross points out, the legal transit of fraudulent conveyancing can be traced to roots in Roman law, in canon law, and in English history from the time of Magna Carta (1). What this book makes evident, however, is that in the late-sixteenth century, law's empire was not as distinct from literature's as scholars have assumed.

A fraudulent conveyance occurs "when someone in debt places his or her property out of reach of his or her creditors' process" (1). In his edition of Proceedings in the Parliaments of Elizabeth I (3 vols., Leicester: Leicester 1981), T. E. Hartley identified the particularly Elizabethan problem:
   There is doubtless a lengthy story to be told of the evolution of
   the land law in Elizabeth's reign.... We read of fraudulent
   conveyances in several sessions, of fines and tenants for life,
   aliens' lands, corporations' conveyances and so on. In some cases
   the purpose of debate and legislation seems to have been to
   regularize and enforce a standard means of procedure, and to cut
   through the jungle of sharp practices which bedevilled the land
   market.... Why did the problem of fraudulent conveyances
   seem so unmanageable? (1:xxiv-xxv).

For Ross, the answer lies in changing social and moral attitudes toward credit, debt, and the honor of poverty, and in the cultural and political customs and tensions of England and Ireland. 1571 marked the passage of the fifth Elizabethan statute dealing with conveyances (13 Eliz., c.5), which voided as fraudulent any conveyances made to "delay, hinder, or defraud creditors and others." The effects of this statute were ambiguous and its enforcement variable until 1601, when Twyne's Case became a focal point in resolving ambiguity. This locus classicus concerned a man named Pierce who had transferred a herd of sheep to Twyne in order to keep his property away from his creditors. The creditors sued, claiming fraud, and it fell to the chief justices of England to determine whether Pierce intended to defraud his creditors and to resolve the related question of what might constitute "good consideration," specified in the statute as due for any conveyance of property. In their decision, the judges established "badges" of fraud that became permanent features of law in England and the United States (xi).

Ross's historical materials reveal that between the statute of 1571 and Twyne's Case in 1601, the very idea of what counted legally as fraudulent conveyancing was less unified than is commonly noted, its ambiguities pervading the culture in surprising forms (including abduction of women) that extend to the works studied in this book--William Shakespeare's The Merry Wives of Windsor and The Merchant of Venice, Philip Sidney's Arcadia, and Edmund Spenser's The Faerie Queene. In the speeches of lovers as debtors and creditors, in exchanges of rings, in the resort to sanctuary, and in myriad other instances, fraud speaks many languages and assumes many shapes that connect these English Renaissance writers to each other and to their specific historical circumstances. By focusing on the social and political struggle to define fair behavior, Ross discovers a discourse of debt that paradoxically both reveals and disguises deeper ethical and moral concerns.

In one of the book's strongest chapters, Ross attends to "Shakespeare's veritable fantasia on the theme of fraudulent conveyancing, The Merry Wives of Windsor" (ca. 1597-1601), which was originally written before Twyne's Case and then rewritten, perhaps more than once, afterwards (5). Conceding that the play, especially its Folio version, has long been recognized for its legal language (11), Ross reverses the usual argument that law influenced the drama to find that this comedy influenced the law. In Merry Wives,
   conveying ... plays a metaphoric role ..., 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 conveyancing
   characterize this comedy. (12, emphasis added).

Two chapters are devoted to helpful legal background. In "Creditors and Others," Ross refutes a conventional view that the origins of the 1571 Elizabethan bill were "political and punitive, designed not only to protect the interests of the Crown in land, but to punish those who did not conform to the Elizabethan settlement" (29) and to sustain the persecution of Catholic conveyers (5). Finding this view too narrow, he extends the originating influences to include events from the Northern Rebellion of 1569, differing local customs in Ireland and England, and the chivalric code of honor. A later chapter, "Coke, Collusion, and Twyne's Case," articulates the interpretations of Twyne's Case over a decade, during which justices formulated the role of "good faith" in a trust (103), what could constitute "good consideration" for a conveyance (103), the meanings of collusion (101-02), and the "badges" of fraud, including the revocability of a gift (107). The category of collusion links Ross's legal discussion to The Merchant of Venice (ca. 1598). Ross finds that Twyne's Case "regarded what might be considered an act of friendship--Twyne's helping Pierce--as a form of collusion that jeopardized his creditors. Was Twyne doing a good deed? Was Shylock?" (111).

In "Carried Away in Arcadia" Ross makes provocative connections between Henry Sidney's life and attitude of laissez-faire economics and his son Philip Sidney's views of fraudulent conveyancing. While he was governor in Ireland, Henry Sidney designed his "Irish statute" to establish the English queen's right to forfeitures in Ireland, where customs were different (46-47). Yet the statute included no provision against fraudulent conveyancing, which suggests an ambivalence in Sidney and in the society toward the practice (43). The works of both Sidneys, father and son, contain an awareness of "the moral dissembling of even virtuous people" (43), but the younger Sidney's views are shaped by what he once termed his "curse of poverty" (50). Philip Sidney's writings reveal a dissonance between his moral imagination, his chivalric imaging of debt (the idea that debt did not diminish honor, since it indicated a lack of greed [51]), and his lifelong tenuous financial position (4344). In Sidney's Arcadia (1590), this sense of ambiguity appears, among other instances, in the plots devoted to abducting and ravishing women, which could be legally construed as defrauding a family.

If the Sidneys were ambivalent about the ethics of fraud, Spenser, whom Ross characterizes as "obsessed by fraudulent conveyances" (6) and by the corresponding difficulties of creating working rules of law, takes a sterner view, condemning ambivalence or dissembling. Spenser added the language of fraud and conveyancing to the images of magic in the story of Amoret and Scudamore in the 1596 edition of The Faerie Queene--thereby changing "Amoret's story from a mystical conception of marriage to a problem of fraudulent conveyances used to defeat purchasers" (79). Although Spenser's ethical sense of what is right regarding conveyances never changes, ambiguity arises in The Faerie Queene: instead of presenting a firmly fixed morality, the "chivalric fiction imitates the process of sorting out competing values that lay beneath the debates over fraudulent conveyancing laws" (93).

In method and practice this book is somewhat at odds with itself over the question of the nature of legal-literary relationships. Ross elaborates Richard Posner's opinion in Law and Literature (1988) about the incompatibility of law and fiction in order to embrace it. In this view, we assume that the work of art is an organic unity, that it can represent or stage "public policy," and that it may employ legal language either literally or metaphorically. In contrast, law is constructed as a series of separable issues, legal briefs are instrumental in constructing "public policy," and legal language is used literally and not metaphorically (4). Yet Ross is perhaps too hasty in adopting this framework, since much productive scholarship today questions precisely these assumptions. Moreover, Ross's own materials suggest that viewing the law in early modern England as organically and formally inviolate is anachronistic. Ross's insights are freshest when his readings violate their announced commitment to the separation of disciplines and illuminates the many ways these discourses infiltrate and inspire each other. This is an erudite study, and Ross makes a strong case for his claim that between 1571 and 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" (133).
Karen J. Cunningham
University of California
Los Angeles, California
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Author:Cunningham, Karen J.
Article Type:Book Review
Date:Mar 22, 2005
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