SOURCE: “Shakespeare's Merry Wives and the Law of Fraudulent Conveyance,” in Renaissance Drama, n.s., XXV, 1994, pp. 145-69.

[In the following essay, originally presented in 1992, Ross examines the fraudulent practices that occur in The Merry Wives of Windsor, which center principally but not exclusively around Falstaff, and argues that the ambivalent outcomes of these practices reflect the ambiguous morals of Renaissance society.]

Several forms of fraudulent conveyance characterize Shakespeare's Merry Wives of Windsor:¹ Fraudulent conveyance may be defined as putting realizable assets beyond [a] creditor's process, whatever form that process might take” (Glenn 2). Laws against such transfers of assets occur in every society that recognizes the obligation to pay debts. The flip side is that civil societies have a certain tolerance for people who devise means to avoid the clutches of creditors.

The concept of fraudulent conveyance was found in Roman law;² it arose in canon law, where the pauper status of clerics complicated the collection of debts;³ and it had a noble history in England, where complex legal mechanisms were constantly devised to frustrate judicial processes that sought to take property for the benefit of creditors. From the time of the Magna Carta, the Parliament of England regularly protected royal interests against fraudulent conveyances. A series of statutes provided remedies against mortmain, subinfeudation,⁴ conveyances to defeat a lord of his wardship,⁵ the seeking of sanctuary to escape financial liabilities,⁶ fraudulent deeds used by those accused of treason to protect family property, as well as other devices, some still being invented in Shakespeare's day.⁷ For legal historians the most significant of these statutes is 13 Eliz. 5 (1571), because Sir Edward Coke, the queen's attorney general, gave the statute two readings, in Twyne's case (3 Co. Rep. 80b [1601]) and Packman's case (6 Co. Rep. 18b [1585]).⁸ The language of the statute—still present in the law of many states—forbids

fraudulent feoffements, Giftes, Grantes, Alienationes, Conveyances, Bondes, Suites, Judgements and Executions as well of Landes and Tenements, as of goods and Cattells [sic] … devised and contrived of malice, fraud, covin, collusion or guile, to the end, purpose and intent, to delay, hinder or defraud, creditors and others of their iust and lawfull Actions, Suites, Debts.

(13 Eliz. 5)

Garrard Glenn characterizes the statute as purely political and punitive, designed to protect the interest of the Crown in land.⁹ That it was not aimed at creditors can be deduced from the fact that a bankruptcy statute passed the same year did not mention fraudulent conveyance. The political purpose of similar statues explains why Spenser frequently mentions fraudulent conveyance in his View of the Present State of Ireland (1596), written but not published within a few years of Shakespeare's composition of The Merry Wives.¹⁰ Just beginning a tenure as sheriff of Cork, the Protestant poet complains, through the medium of the View, that the Irish practice fraudulent conveyance when they deed their property to a relative before going into rebellion. According to English law, a dead rebel had to forfeit his property to the queen. If the man no longer had title to his land, the queen was deprived of her “escheat” (the reversion of land to the Crown). Spenser warns the authorities in London that much land has been conveyed secretly for this purpose.

A few modern instances should suggest the range and moral ambiguity of fraudulent transfers that make them a perennial concern. First, a man or woman facing bankruptcy may seek to put assets in the name of a spouse or child. The law will generally void such transfers as an attempt to defraud creditors. (Most states provide certain exemptions as a matter of policy to preserve the family unit.) Second, some forms of Medicaid provide free care for the indigent. Is it fraudulent to give your lifetime savings to your children to prevent their depletion by nursing-home expenses that Medicaid will cover? One view regards the practice as mere “asset planning”; another regards those who transfer for less than full value as lacking a “modicum of decency.”¹¹ The classic American standoff between farmers and bankers provides a third example.¹² Midwest farmers routinely ship grain to distant elevators to keep their product out of the hands of bankers in case they default on crop loans.¹³ This example suggests that the form of the conveyance is of marginal importance. (Narrowly defined, a conveyance is a means for transferring estates in land.) Although it might make all the difference whether one must only send a truck for hidden grain rather than tracing property that may have been sold several times to a series of bona fide purchasers, morally the issue is simply whether society will allow certain practices to defeat creditors.

Shakespeare's composition and revision of a play that echoes such practices coincided with the first important appearance of the concept of fraudulent conveyance in the debtor law of England. Twyne's case (1601) also records the first instance in which Justice Coke spelled out the “badges of fraud” that determined whether a conveyance was fraudulent or not. A creditor sought to attach the sheep of a man named Pierce in payment for debt, but Pierce “conveyed” them to a man named Twyne by deed. Because Pierce conveyed the sheep to Twyne to avoid his debt, the English court declared the deed void and allowed the creditor to obtain possession of the animals. Coke defended his belief that the conveyance was meant to defraud by pointing to several indicators: the gift was made in secret, the sheep retained the original owner's mark, Pierce had no other assets, and the deed unnecessarily proclaimed itself bona fide. The prominence of the case suggests that the courts were moving to protect creditors' rights in new ways. Coke believed he could guess Pierce's intentions.¹⁴ Understanding Falstaff's conveyancings in The Merry Wives proves more difficult.

I

A law and literature analysis typically considers what a legal perspective can tell us about a work of art, or what a literary understanding reveals about the law, or the regulation of literature by law. Although Shakespeare's play may open our eyes to the acceptance of fraud (or near fraud) in the law of conveyancing, this essay concentrates on the first approach for the most part.

The plot of The Merry Wives involves many legal themes: Justice Shallow's suit against Falstaff for a deer poached by the fat knight, Falstaff's attempts to avoid debt, the several marriage negotiations concerning Anne Page, the clever ways the wives avoid adultery by fending off Falstaff's advances, the rules of the duel, and the theft of horses. There is even a hint of the issue of same-sex marriage at the end of the play when two suitors find they have carried away boys instead of Anne Page. The element of fraud these adversarial situations share raises what Richard Posner calls the “fundamental problems of law, which is how to control human behavior effectively by means of rules” (105). Fraud becomes socially acceptable when laws no longer reflect the mores of a society. The colonial context in which Spenser operated, as an English agent in Ireland, reminds us that what looks fraudulent from the creditor's perspective often seems, from the debtor's angle, to be a legitimate way to protect a family inheritance from an antagonistic political power or impersonal creditor

The link between law and literature is rarely literal. Law as a subject matter is usually “just a metaphor for something else” (Posner 15). Anthony Trollope is a rare exception, as is a certain passage in Vladimir Nabokov's Lolita, in which Humbert Humbert brilliantly parodies a legal memo on the issue of interstate travel with an underage companion for immoral purposes.¹⁵ The literary use of the law is usually much less exact: Portia's trial of Shylock in The Merchant of Venice is a legal farce and—to take another well-known example from the law and literature field—Melville probably did not have his eye on naval law when he wrote Billy Budd (Posner 162). In the same way, the law of fraudulent conveyance forms an interesting and necessary background to The Merry Wives of Windsor, but the play is not about legal technicalities.

Yet Shakespeare's play has long been recognized for the legal language that distinguishes the Folio from the Quarto text: characters use words and phrases such as quorum, Star Chamber, Justice of the Peace, custalorum, “bill, warrant, quittance, or obligation,”¹⁶ “the register” (of follies), “fee'd every slight occasion,” “exhibit a bill in the parliament,”¹⁷ building on another man's ground, fee simple, fine and recovery,¹⁸ waste, cheaters,¹⁹ exchequers, egress and regress, suits and oyers.²⁰ 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.²¹ Nowhere do we find a “conveyance” in the narrow sense of a transfer of title by deed, but the recent work of Patricia Parker has revealed a “discursive network” that “links the transporting or translating of words with the transfer, conveying, or stealing of property” in the play.²²

It is the possibility and practice, not the legal technicality, of the law of fraudulent conveyance that enters the comedy. As Parker has shown, conveying plays a large 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, such as fraud. For this reason, conveyance operates as a paradigm for actions that illustrate a relationship between law and literature: a parody or parallel more productive than the illusion of legal substance, the representation of the adversarial process, or the use of legal terminology.

A true theory of law and literature requires a conception of the jurisprudence that underpins the ways an author employs legal materials, by which I mean the author's assessment of the source and function of law in society. A creative writer need not be bound by a single jurisprudence, but if sensitive to the operation of law, he or she may create a dramatic interaction between different ways of understanding society's formal rules. As analysts of law and literature, our task begins with the identification of traditional categories of jurisprudence, such as natural, customary, and positive law, as well as the fields where law functions: property, family, commerce, administration, torts, procedure, contracts. The story told will either be one of conflict or transition: a clash between fundamental values, or changing conceptions of law based on our historical assessment of a given society. A competition between legal and literary modes of dispute resolution will naturally recur from work to work, providing the possibility of a sustained approach to literary history.

If, as Richard Weisberg claims, “literature provides unique insights into the underpinnings of law” (Poethics 3), and if Shakespeare's Merry Wives provides such insight into the practice of fraudulent conveyance, nonetheless Posner rightly warns us about a fundamental incompatibility of the outward structures of the law and a play. This incompatibility requires us to make three critical assumptions that separate The Merry Wives from the law. First, we presume organic unity in a work of art—that the various actions that comprise the plot express a single theme—in contrast to a series of separable issues that compose legal thinking. Second, we regard The Merry Wives not as a brief about fraudulent conveyance but as a dramatic presentation of what lawyers today call the “public policy” to which laws eventually conform. Third, we recognize that the bourgeois characters of The Merry Wives use mercantile and legal language even when the matter is not mercantile and legal, so sometimes they talk literally and other times metaphorically. These characters serve as foils to Falstaff, who sometimes seems out of touch with, but sometimes is perceptive about, certain matters of fraud.

II

Shakespeare's Merry Wives 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 husbands. Much of the drama's humor derives from Falstaff's failure to dissimulate his intentions effectively.

The wives learn of Falstaff's plot when he sends them each 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, Mistress Ford's servants secretly “convey” Falstaff in a buck-basket of dirty laundry from Mistress Ford's house to the Thames for a dunking. The conveyance saves Falstaff from the wrath of a jealous husband while punishing him at the same time. But Falstaff's conveyance in a buck-basket is only the most spectacular of several imitations of legal deception in the play.

In 2 Henry IV Falstaff recalls his time as a law student at Clement's Inn (3.2.308). Although Mistress Page, as a woman, would not have attended the Inns of Court, she often sounds more like a lawyer than Falstaff. Traditionally the first act of fraud was Jacob's deception of Isaac to win Esau's birthright (Parker, Literary 74). Mistress Page cites it when she compares her letter from Falstaff to Mistress Ford's: “heere's the twynbrother of thy Letter: but let thine inherit first, for I protest mine never shall” (Folio 2.1). Later, after Falstaff is beaten as a woman, Mistress Page produces the densest legalism in the play: “if the divell have him not in fee-simple, with fine and recovery, he will never (I thinke) in the way of waste, attempt us againe” (4.2). Mistress Page 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 fee often obtained, in the late sixteenth century, by the legal maneuver of “fine and recovery.”²³ Mistress Page not only uses legal language; she is also alert to fraud and deception.

For the second part of Mistress Page's sentence compares Falstaff's attempts on the ladies' virtue to a dispute over rights to exploit real estate. Paul S. Clarkson and Clyde T. Warren correctly 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,” noting the objection that “Falstaff was certainly no tenant (metaphorically, of course)” (166-67). But this account misses the point that such waste was a recognized form of fraudulent conveyance.²⁴ In 1601 Elizabeth's Parliament passed a statue that reflects the wider association of fraud and waste: 43 Eliz. 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 debts, by way of wasting” (Anno xliii; emphasis added). Mistress Page identifies herself as one with the potential to waste and understands that waste is a form of fraudulent conveyance.

Besides making a legal pun on waste and waist, Mistress Page also plots. She vows revenge when she receives Falstaff's letter; she enlists Mistress Quickly; 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.²⁵ Most spectacularly, she instigates Mistress Ford to convey Falstaff in a buck-basket when Ford, like a judgment creditor, demands that his wife hand over Falstaff.

Finally, Mistress Page associates legal language with the plans she conceives. For example, the Folio assigns Mistress Page a significant 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.²⁶ In the Quarto Falstaff first uses the word “convey” in reference to his concealed transport in Mistress Ford's buck-basket (“convey me hence” [3.3]), but his usage seems to be accounted for by the presence of the word in Tarlton's News out of Purgatorie, a probable source (Bullough 31). By contrast, when Mistress Page says “convey” in the Folio, one first feels that 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. “Bethinke you of some conveyance. … Looke, heere is a basket” (3.3). Something similar happens when Richard II shouts “Conveyers are you all!” at Bullingbroke after he orders his men to “convey” Richard to the Tower (Richard II 4.1).

The exquisite humor of the buck-basket parody lies in the double sense of conveyance 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). 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, by loving him instead. 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.

III

An overlooked element of fraud also lies concealed in another well-known legalism, Ford's reference to building on another man's land. 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 mans ground, so that I have lost my edifice, by mistaking the place, where I erected it” (2.2.215). Clarkson and Warren echo earlier legal scruntinists, that “at common law if a man by mistake erected a house upon another man's land it became a part of the land and the property of the landowner” (164). The rule is that whatever is affixed to the soil belongs to the soil (“quicquid plantatur solo solo cedit”; “aedificium solo cedit”).²⁷ The idea occurs in Shakespeare's sonnet 146: “Why so large cost, having so short a lease, / Dost thou upon thy fading mansion spend?” (Dunbar Barton 114). The rule was a commonplace of the law.

Criticism of The Merry Wives has not noticed, however, the opportunity the rule provided for mischief. Consider a tenant who seeks a twenty-year lease knowing that he wants to construct a building. The tenant will naturally bargain for a lease price 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. Modern lawyers describe a similar situation as a constructive fraudulent conveyance (meaning the effect against other creditors is the same, although strictly speaking there is no conveyance) (Kennedy). 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.

Exactly this process occurred in Shakespeare's circle in the 1597, when the twenty-year lease that James Burbage had taken from Gyles Allen for land on which to build the Theatre expired. Allen had the law on his side. He owned the land, and when the lease was up he owned the building.²⁸ And yet, to the Burbages and their resident theater company, including Shakespeare, it doubtless seemed that Allen was morally or contractually obligated to renew the lease. When Allen refused, and Burbage's plans to cover himself by moving into Blackfriars ran into trouble, Shakespeare's company reacted as if Allen had effected a constructive fraudulent conveyance, and they took measures to void it. They literally disassembled the Theatre from Allen's property on 28 December 1598, and then floated the timbers across the Thames to construct the new Globe Theatre.

Like the conveyance of an entire theater—a gesture initiated by actors alert to maintaining their assets—the buck-basket that carries Falstaff humorously suggests a theatrical representation of statutes on fraudulent conveyance. As 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 (79). 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” (Simpson 186). This common topic was readily available to Shakespeare and his circle in popular and indexed epitomes, such as those of Robert Brook, William Rastell, Fernando Pulton, William West, and Edmund Plowden, many published by Richard Tottel.²⁹

We do not know if 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 Burbage's lease, but, in a related gesture, they themselves readily conveyed property to avoid creditors. For example, before he died, John Brayne had been James Burbage's partner in constructing the Theatre. In 1591 an attorney named Henry Bett mentioned in a deposition that Brayne habitually prepared deeds of gift whenever he anticipated being imprisoned for debt. Bett implied that Brayne acted to defraud creditors, commenting, “That yt was a Common thinge, w^th the said John Braine, to make deedes of gifte of his goodes and Chattelles, the reason was … to prevent his Credito^rs aswell before buildinge of the Theatre, as since, for he beinge redie to be imprisoned for debt he would prepare sutch safetie for his goodes, as he could / by those deedes” (Wallace 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 a man named Robert Miles. Later he witnessed the assignment of the lease of the Theatre to Cuthbert Burbage.

Another legally ambiguous conveyance occurred in 1596, when 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) (Wallace 23-24). As a result of this gift, Robert Miles filed suit in 1597 against Cuthbert, Richard, and Ellen Burbage. Miles charged that James Burbage fraudulently conveyed his estate to defeat Miles and other creditors of their due. Perhaps because the law was still unsettled, Miles lost his legal action, as did Gyles 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. We have seen, for example, 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” (his wife). The metaphor works at least two ways: first, “Brooke” builds false hope upon another man's ground; second, Ford suspects someone has made “shrewd construction” on his wife's “enlarged mirth.” In the latter case the “building” is not vain desire but a sexual erection: Mistress Quickly unknowingly blunders onto the truth a few lines later. Falstaff catches her meaning, but he is remarkably unaware of the risk he takes of being defrauded by Brooke, since he himself will be “building” on another man's (Ford's) “ground.” Instead, Falstaff's mind conjures 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” (3.5.41). Ford's “building” image refers to a form of fraudulent conveyance under a lease, but Falstaff (fresh from a dunking in the Thames) thinks, rather quaintly, 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.³⁰ A “woman's promise,” Falstaff suggests, shifts like a shoreline, and one's possessions may be washed away.

IV

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?”),³¹ 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” [4.3.8]).³² He 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; cf. Tiffany 3.) The result is good comedy.

The Host also connives with Falstaff with regard to the employment of Bardolphe. 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” (Justinian, Institutes 41 [1.6.3]). Bardolphe is not a Roman slave, of course, but in 2 Henry IV, Falstaff says he “bought” him at St. Paul's. When Falstaff follows his announcement that he needs to “turn away” some of his followers by saying “I sit at ten pounds a weeke” (1.3), 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 suggests that Falstaff spends thirteen shillings a day for food and drink, which with half a crown or so for rent, comes to about ten pounds a week.) Mine Host picks up Bardolphe's hire because he values a good customer. He is the beneficiary of Falstaff's transfer of Bardolphe, 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 legitimate to prefer one creditor over another). As a tapster, Bardolphe will spend much of his time doing what he would do anyway, fetching sack for Falstaff.

Falstaff's show of concern for finding new employment for Bardolphe conceals the fact that a transfer of assets is taking place. Openly, Falstaff defends letting Bardolphe go by claiming he has lost his skill in filching. Pistol—who has just heard Falstaff rationalize his dismissal of Bardolphe by claiming that he stole not in time—perhaps puts a right name to what has happened. Shakespeare's characters usually base their puns and wordplay 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 Bardolphe's new occupation when he offers a synonym for theft: “Convay, 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 his chance to cashier his two remaining followers. Whatever his true motive, and whether or not the Host connives with him (as Twyne did with Pierce), Falstaff gets a kind of fresh start by releasing Bardolphe. He reduces his expenses, and he may also make money if Bardolphe, 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 Bardolphe's new occupation as a “good trade,” but others, including 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 also colors Falstaff's language.³³ As an apologist for empire, or like an old aristocrat, the knight believes that fortunes are made by wooing women for their wealth.³⁴ Falstaff is certain the wives of Windsor will yield riches: he declares that Mistress Ford and Mistress Page are lands of “gold, and bountie: I will be Cheaters to them both, and they shall be Exchequers to mee: they shall be my East and West Indies, and I will trade to them both” (1.3.29ff.). 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. 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.

(346)

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 a series of cases in James Dyer's Reports on fraudulent conveyance.³⁵ 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 twenty pounds, 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” (5.5.117). 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.”

In the Folio, however, Mistress Ford says nothing about forgiving Falstaff, while Ford announces that Falstaff's “horses are arrested” 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 jealously” (216). I believe 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.

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” because the writ that forced Falstaff to pledge the horses was the capias ad respondendum, a common writ used to start a case.³⁶ But nothing indicates Falstaff knows what has happened. John Cowell's Interpreter (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.”³⁷ Yet this writ fits the facts of the case imperfectly, since Falstaff did not take horses from Ford.³⁸

It is tempting to suggest that perhaps old Falstaff knows a thing or two about fraudulent conveyances and that Ford is merely blustering when he claims to have arrested Falstaff's horses. 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.³⁹

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. Falstaff also has an uncertain number of horses—say four, one each for himself and his men—whose value we may estimate at about five pounds apiece, suggesting that “Brooke” knew his man if he purposely limited his lending to twenty pounds.⁴⁰

Falstaff's notable failure to convey his horses beyond the reach of his creditor—which Ford's action presumes—illustrates how conveyancing suits comic drama. In Plautus and Terence, the creditor often takes the form of a distant father or husband or brothel owner to whom a girl owes a duty that she seeks to convey to a young man, whom she will marry.⁴¹ Indeed, so suited is conveyancing, like revenge, to literary treatment that Erich Segal observes how young men typically court bankruptcy in the Roman comedies.⁴² The lovers' insolvency—like Falstaff's (who therefore symbolically stands in for Anne Page's suitor Fenton, who has money enough but lacks the goodwill of Anne's parents)—allows comedy to represent the “breaking of restrictions” that is the “‘heart’ of the genre” (Segal 17-18). Like fraudulent conveyance, comedy can take many forms. In Moliere's Le Festin de pierre, for example, Don Juan gets rid of his creditor Monsieur Dimanche by professing such warm friendship and sharing such solicitude for him that the creditor never gets to demand his money (Olson 59). Shakespeare's comedies typically turn on sudden shifts in affection, as when a young man like Proteus in The Two Gentlemen of Verona claims to give one woman his heart (the title) but conveys his affection (the use) elsewhere. As Elder Olson observes, comedy contrasts to the narrow genre of tragedy, because comedy has an enormous range of plots.

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” (Hinely; Foley; Parten). I believe he is an effigy of fraud as well. The original Twelve Tables of Rome allowed creditors to divide the body of a debtor among them.⁴³ Falstaff therefore 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.

The reconciliation of Falstaff with the citizens of Windsor mirrors the general acceptance of this form of fraud by Shakespeare's society. Mistress Page's legal language suggests that she is an astute woman who recognizes the delightful way Falstaff's carriage in a buck-basket parodies the practice of fraudulent conveyance. Mr. Ford conjures a form of “constructive” fraudulent conveyance when he compares making love to someone else's wife with building on another man's land. The Host of the Garter also thinks like a lawyer. He takes over Bardolphe's employment to help Falstaff manage his affairs. Compared to these characters, Falstaff appears curiously retrograde in his awareness of legal matters: the end of the Folio version holds up the possibility that Falstaff, said to owe Ford twenty pounds, has missed an opportunity to fraudulently convey his horses. In each case the play draws on a common issue in the legal thinking of sixteenth-century England.

The moral ambivalence of fraudulent conveyance unifies the play and explains its legal metaphors. Although there have been recent defenses of Falstaff's role in the comedy, he has generally been taken to be a lesser wit than the knight of the history plays. A. C. Bradley called Falstaff's degradation “horrible.”⁴⁴ Samuel Johnson said that the danger of Falstaff's vice is its attractiveness to others.⁴⁵ I believe Bradley's view is misguided and that Johnson's observation applies to The Merry Wives as well the history plays. Falstaff reflects a society in which fraud is endemic and social rules, including legal forms of conveyance, are in flux.

As a figure of the shifting ethics of conveyancing, Falstaff operates both openly and secretly, intentionally and perhaps instinctually. Jill Levenson observes that the narrative movement of comedy is often accompanied, in the Renaissance, by “a series of debates” or dianoia: “that ongoing process of reasoning and problem-solving which the commentators suggest is the action of comedy” (268, citing Altman 139, 157-61). In Shakespeare's history plays, Falstaff's illegal behavior threatens to mislead Prince Hal and derange society (Kornstein 134-42). 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.

Falstaff's simultaneous punishment and escape reflects the moral ambiguity of fraudulent conveyancing. The terms debtor and creditor are like the image of a vase that becomes the profile of two women as we stare at it. Depending on our situation, we will sympathize with one or the other. Fraudulent conveyance operates in this shifting moral sphere, where power blurs the line between right and wrong. Anyone, including Falstaff, who appears unfairly oppressed by circumstances or misfortune will arouse sympathy.

Notes

1. Quotations are taken from the facsimile editions listed in the Works Cited. The editors of the Quarto facsimile give line numbers that correspond roughly to those of the Globe edition based on the Folio. Leah S. Marcus (“Levelling”) comments on the different versions: The Merry Wives of Windsor “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” (173). “Both versions of Merry Wives are teeming with folk rituals, but the way we interpret them will depend on which version we choose” (175). This essay suggests that what Marcus says extends to legal rituals as well.

2. Radin; Glenn 82.

3. Helmholz 8, 12; Martines 176; Simpson 174 (comparing the medieval use to modern tax evasion, as when the Franciscans, to maintain poverty, “found it convenient that property should be held by others to their use”).

4. 9 Hen. III 35 was a statute against mortmain and subinfeudation (conveyance of lands to a religious house in order “to take the same land again to hold of the same house”). “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” (Kempin 146).

5. 52 Hen. III 6.

6. 50 Edw. III 6 was aimed at those who, to avoid creditors, give their tenements and chattels to friends, who agree to pass on the profits, and then seek sanctuary in “the Franchise of Westminster, of S. Martin le graund of London, or other such priviledged places.” The Parliament of Henry VII repeated the injunction of 50 Edw. III 6 against deeds of gift made to defraud creditors by those who seek “Sanctuary, or other places privileged” (3 Hen. VII c. 4).

7. A series of statutes under Richard II (11 Ricc. II 1-6) was aimed at five specific peers of the realm, accused of high treason, to void the “fraudulent conveyances of their goods to deceive the King.” One bill under Henry VIII forced a single man, Sir John Shelton, to repeal fraudulent deeds and conveyances made to defeat the king and others of wardship, primer seisin, and relief, and to make clear that he, condemned to die, did so while seised of those lands, which the king could then reach (33 Hen. VIII 26). Later laws were aimed at recusants who sought by “convenous conveyance” “to defraud any interest, right, or title, that may or ought to grow to the Queen” or anyone else (23 Eliz. 2 and 29 Eliz. 6). Another statute (27 Eliz. 4, passed in 1585 and made perpetual in 1597 by 39 Eliz. 18) prohibited fraudulent conveyances to defeat purchasers (in other words, it gave statutory form to the obvious notion that you should not sell the same thing to two people at the same time). In 1603, between the Quarto and Folio versions of Merry Wives, King James's first Parliament made fraudulent conveyance an act of bankruptcy (the law applied only to merchants). 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, carpenters in 1688 (Weisberg, “Commercial” 22-24). (Much later the issue would become discharge or the modern “fresh start.”) The next act of this legal history occurred in 1623 when James's new bankruptcy bill (21 Jac. 19) incorporated the specific language of 13 Eliz. 5 and Twyne's case, which survives to this day in many states (“to delay, defraud, or hinder” creditors and others). The bill also uncannily echoes Falstaff's debt, since the fraudulent conveyancing provision only applies to amounts of twenty pounds or more. Another threshold in the bill is that the debtor's obligations must be one hundred pounds, the amount Fenton offers the Host to help him convey away Anne Page.

8. “Our notion of the fraudulent conveyance traces to a statute of Elizabeth … due to the restatement of the law which was made by Sir Edward Coke. … Later, no one cared to go back further; and so our law of fraudulent conveyances may be ascribed to Coke” (Glenn 79).

9. Glenn observes that the first Elizabethan statute against fraudulent conveyance had less to do with creditor's rights than with providing the queen with a legal means to enrich the royal treasury. The statute of 13 Eliz. 5 provided that, in Glenn's summary, “‘all and every the parties’ to a fraudulent conveyance, ‘being privy and knowing of the same,’ shall forfeit one year's value of the land, if land was the subject, and ‘the whole value of the goods and chattels,’ one half to the Queen and the other half to any party who may be aggrieved” (92).

10. In addition, A Briefe Note of Ireland, if Spenser's, refers to fraudulent conveyancing in the last words the poet wrote: “Whereas manie of the lords of the Countrie not longe before the confederating of his rebellion procured there freeholders to take there lands of them selues by lease manie of which are since gone into rebellion / That provision may be made for the avoyding of such fraudulent conveyances made onelie to defeat hir Maiestie of the benefitt of theire attainder” (245).

11. See Carlson. See also (for convenience I cite in law-review style): Dobris, Medicaid Asset Planning by the Elderly, 24 real PPTJ 1 (cloud of fraudulent conveyance law creates no safe haven for divestment planning); cf. Randall v. Lukhard, 729 F.2d 966, at 969 (4^th Cir. 1984) (dissent said anyone who transfers for less than full value and then applies for Medicaid lacks even a “modicum of decency” and has sunk to “immoral depths”); State v. Goggins, 546 A. 2d 250 (Conn. 1988) (allegation that transfer of Medicaid patient's property was fraudulent conveyance).

12. David Ray Papke reveals how American agrarian law valorized debtors (“Rhetoric”).

13. This suspicion reflects the opinion of rural bankers I spoke with during a visit to the federal Bankruptcy Court in Lafayette, Indiana.

14. Coke, the queen's attorney general, paid no attention to the Crown's rights or interests “but he put life into the Statute by applying it to the rights of the citizen who has been cozened” (Glenn 99).

    If Shakespeare knew the case, he would have read legal French, of which I give a sample: “[I]n camera Stellata, pur contriver et publication dun fraudulent done des byens; Le case sur lestatute de 13 Eliz. cap. 5, fuit tiel: Pierce fuit endebt al Twyne en 400.li.” Pierce had “byens et chateux al value de 300.li. en secret fait general done per fait, de touts ses byens et chateux reals & personals quecunque al Twyne.” Twyne resisted “ad Fieri facias direct al Vicont de South.” When he came to execute the brief, it was found that “cest done fuit fraudulent” under the statute because the gift had “les ensignes et markes de fraude”: the gift was general without exception for clothing (“son apparel ou ascun chose de necessitie”). Also, the gift said it was done “honestly, truely, & bona fide,” a phrase that aroused suspicion because “secrecie est un marke de fraude.” Coke objects to the abundance and the growth of fraud “pluis que en former temps”; therefore the court must read the statute broadly and presume fraud: “tout Statutes faits encounter fraud serra liberalment & beneficialment expounde a suppresser fraud” (Coke, Le Tierce Part 80-82).

15. Anthony Trollope provides a brilliant legal analysis of intent in a charge of murder in The McDermots of Ballycloran (1847). The passage I have in mind in Lolita begins “Query: is the stepfather …” (Nabokov 174).

16. These first terms 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 that publisher's legal tomes.

17. The last three examples are cited by H.J. Oliver, who declares the significance of the legalisms hard to detect (lxxviii). When Mrs. Page says she will “exhibit a bill in the parliament for the putting down of men” (2.1.27), she sounds like Beatrice.

18. For an explanation of a simple fine, see note 23.

19. “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”’ (Dunbar Barton 154-55).

20. “[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” (Phillips 89). Shakespeare “compares the starting of a fairy revel to the opening of a Court of Assize. The fairy Hobgoblin figures as Crier of the Courts; and is ordered to open the revels as if it were an Assize: ‘Crier Hobgoblin make the fairy o-yes”’ (Dunbar Barton 84).

21. Dunbar Barton 7, 159; Underhill 381; Keeton 301.

22. See Parker's “The Merry Wives” 236. I am indebted to her Literary Fat Ladies for the original inspiration of the first draft of this essay, which I rewrote after she kindly referred me to her article. Neither she nor Sandra K. Fischer (Econolingua 59), however, catches the legal sense of “conveyance,” nor does William Carroll, who also comes near my topic, list it among the forms of transgression in the play (206). Otherwise my thesis finds a parallel but not overlapping path in Fischer's contrast between King Henry's use of new terms of contract and exchange in contrast to Richard's obtuseness in Richard II and her remarks on how Hal learns “which debts to keep and when and how to pay” from Falstaff and his father (“He means” 159).

23. “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” (Harding 91). For the more complex “fine and recovery,” see Clarkson and Warren 127; Underhill 405; Kempin 157.

24. William Rastell lists the rule that one who sustains damage can have a “writ of waste out of the Chancery against the escheator for his act” (522).

25. The moral ambiguity of fraudulent conveyance colors Mistress Page's behavior in the play. It can be argued that adultery has some attraction for her, just as fraudulent conveyance appeals to debtors. She is clever enough to put Mistress Ford at risk by arranging for Falstaff to come to her friend's house, although once there she plays a separate game by accusing Falstaff (who has sent two love letters) of two-timing her. Also, Anne's seven hundred-pound income (Folio 1.1.50) may have been assured by Mrs. Page's father as easily as by Mr. Page's side of the family (there is no textual way to choose), skipping a generation, perhaps creating some bitterness and giving Mistress Page reason to think hard about the transfer of property.

26. The Folio seems to me to be a later version of the play: Grace Ioppolo argues it was probably revised several times for “several Garter feasts” (120).

27. Dunbar Barton 122. William Rushton traces the maxim to Justinian and gives a variation in George Chapman's May Day (23-25). Clarkson and Warren (166) cite Dekker's Shoemaker's Holiday for a similar sexual metaphor: “hee / that sowes in another mans ground forfeits / his harvest.”

28. Burbage knew his lease would expire and spent six hundred pounds 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. “[B]y 1597 [the Theatre] was empty because of trouble with the lease of the land on which it stood” (Gurr, Stage 130).

    In a private communication, Andrew Gurr expressed certainty that the law was not on the side of Shakespeare's confederates. He restated his position on the date of the play: if The Merry Wives was composed in 1597, then the reference “Brooke” makes would have been innocent; if composed in 1599, then it becomes a topical reference to Shakespeare's own situation. I believe this answers Elizabeth Schafer's objections to Gurr, “Intertextuality,” that a 1597 date for the Folio, based on the lease reference, is only “speculation” (58).

29. W. F. Bolton counts over 225 editions of such law books and reports between 1553 and 1591, including works by Thomas Fortescue, Thomas de Littleton's Tenures, and James Dyer's Reports (54).

30. 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 (Faerie Queene 5.4.4-20).

31. 2.1. Clarkson and Warren gloss “egress and regress” as derivative of words of leases that signify departure and return to some part of land (69-70).

32. 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. See Thornley 183-86; Marcus, Puzzling 165-66; 32 Hen. VIII c. 12 (“places of priviledge and tuition for terme” included Welles in Somerset, Westminster, Manchester, Northampton, Norwich, York, and Darby). Usually a church or abbey lands served as a sanctuary, but as Bacon recognized in his Learned Reading upon the Statute of Uses, debtors desired to find a retreat to live in after conveying their assets to a friend (412). 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 (Glenn 84). The Garter Inn operates symbolically in this way—rather like a “homestead” in modern law—for Falstaff lives there uninterruptedly, giving him time to effect the transfer of Bardolphe's employment to the Host of the Garter and to send love letters to Mistress Ford and Mistress Page, wooing them for their money.

33. David Quint 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 hording merchant, and Juvenal referred to Jason as “mercator Jason”) (259). 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: “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” (Trevelyan 346-47).

34. Falstaff represents what Immanuel Wallerstein calls the old view of the world of trade as a trade in luxuries (food and handicraft production), not “bulk” goods (18).

35. Dyer's Reports cites a cluster of cases based on debt, sanctuary, and fraudulent conveyance, including the case of a man who purchased land with the money of the king: “Walter de Chyrton Customer al Roy esteant graunde dettour a luy, purchase terre ove le money le Roy, et prist lestate del terre a ses amyes a defrauder le Roy, mes il mesme prist les profits, ceux terres fueront extende al Roy in Scaccario” (295). The court of Exchequer voided the conveyances and gave the land to the king.

36. Normally the creditor would enlist a bailiff to execute the debt “against the body” of the debtor: this is the language used in 1582, for example, when the bailiff of the Manor and Liberties of Stebneth executed a debt of one hundred pounds against John Brayne (Wallace 91).

37. Dr. Cowell was Reader in Civil Law at the University of Cambridge; he published The Interpreter in 1601 (Keeton 342).

38. Notice that Ford arrests Falstaff's horses, not Falstaff. George W. Keeton observes that Antipholus threatens Angelo with a suit for wrong arrest in The Comedy of Errors (114). 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 Edward I 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) (Epstein 66; Dunbar Barton 85 and 92).

39. Geoffrey Bullough 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” (11). W.W. Greg calls it “curiously fragmentary” (336); Robert S. Miola “badly garbled” (374).

40. Indictments involving the theft of horses often included the value of the animal. J.S. Cockburn lists prices in 1600: six pounds each for a black and a sorrel gelding (#2973); fifty shillings for a gray mare (#2975); three pounds for a gray gelding; five pounds for bright-bay horse; three pounds for a sorrel horse (#3011): five pounds for a gray gelding, but twenty-six shillings for a white gelding (#3011). I owe this information on prices to Shawn Smith, my former student at Purdue who is currently completing a Ph.D. at Yale University.

41. In The Ghost, for example, Philematium is in debt to Philolaches for buying her freedom with his own money, so she pays back her debt by loving him exclusively, despite the advice of Scapha, who argues that Philematium overpays her debt, since Philolaches will certainly leave her. In other dramas of Plautus, slave girls are typically conveyed from house to house or given sanctuary to protect them from brothel keepers.

42. The theme also occurs in Astrophil and Stella 18, where Sidney wants only to lose “more” of what heaven “hath lent”:

    With what sharpe checkes I in my self am shent,
    When into Reason's audite I do go:
    And by just counts my selfe a banckrout know
    Of all those goods, which heav'n to me hath lent:
    .....I see and yet no greater sorrow take,
    Then that I lose no more for Stella's
    sake.

43. See Sandars xv; Posner 93.

44. Other have defended Falstaff's role in the comedy. Brian Vickers complains that the plot requires that Falstaff by “easily duped” (141). But Oliver denies that there is a “gap” between the Falstaff who “loses the battle of wits over 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 (lxvii). Anne Barton concludes that Falstaff is a “lesser creature” because his character is “not … an 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 (55).

45. “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” (Johnson 356 [the last note to 2 Henry IV]). Falstaff's double nature seems similar to Justinian's observation that fraud may be admirable: “[T]he 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 world ‘evil”’ (Non fuit autem contentus praetor dolum dicere, sec adiecit malum, quoniam veteres dolum etiam bonum dicebant) (Justinian, Digest 119).

This essay was first presented at the Indiana College English Association, 30 October 1992, and at the Shakespeare and Law section, organized by Constance Jordan, of the 1994 meeting of the Shakespeare Association of America. I would like to thank David Bevington, Michael Murrin, the anonymous reader for Renaissance Drama, and Frances Dolan for providing written comments on previous versions. Thanks also to Patricia Parker, Seth Weiner, and Slaney Ross, who made several editorial suggestions.

Works Cited

Altman, Joel B. The Tudor Play of Mind: Rhetorical Inquiry and the Development of Elizabethan Drama. Berkeley: U of California P, 1978.

Bacon, Francis. Learned Reading upon the Statute of Uses. The Works of Francis Bacon. Ed. James Spedding, Robert Leslie Ellis, and Douglas Denon Heath. 14 vols. London: Longman, 1861. New York: Garrett, 1968. 7: 389-450.

Barton, Anne. Introduction. The Merry Wives of Windsor. The Riverside Shakespeare. Ed. G. Blakemore Evans. Boston: Houghton, 1974. 286-89.

Barton, Dunbar Plunket. Shakespeare and the Law. 1929. New York: Blom, 1971.

Bolton, W. F. “Ricardian Law Reports and Richard II.” Shakespeare Studies 20 (1988): 53-65.

Bradley, A. C. “The Rejection of Falstaff.” Oxford Lectures on Poetry. London: Macmillan, 1909. 247-75.

Brook, Robert. Auscun novel cases de les anz et tempz le roy H. 8 Edw. 6. & la roigne Mary le I. London (?), 1576.

Bullough, Geoffrey. “Tarltons Newes out of Purgatorie.” Narrative and Dramatic Sources of Shakespeare. 8 vols. 1957-75. Vol. 2: The Comedies, 1597-1603. London: Routledge, 1958. 26-34.

Carlson, David Gray. “Is Fraudulent Conveyance Law Efficient?” Cardozo Law Review 9 (1987): 643-83.

Carroll, William. “‘A Received Belief’: Imagination in The Merry Wives of Windsor.” Studies in Philology 74 (1977): 186-215.

Clarkson, Paul S., and Clyde T. Warren. The Law of Property in Shakespeare and the Elizabethan Drama. Baltimore: Johns Hopkins UP, 1942.

Cockburn, J.S. Calendar of Assize Records. Essex Indictments: Elizabeth I. London: HMSO, 1978.

Coke, Edward. Exact Abridgement. London, 1651. Newberry Library Case SA 1877.

———. Le Tierce Part des Reportes del Edward Coke Lattorney generall le Roigne. London, 1602.

Cowell, John. The Interpreter. 1601. London, 1607.

Dyer, James. [Reports.] Cy ensuant ascuns novel cases. London, 1601.

[England-Statutes.] Anno xliii. Reginae Elizabethae. At the Parliament … 1601. STC 9495.

———. A Collection in English, of the Statutes now in force, continue from the beginning of the Magna Charta. London, 1598. STC 9321.

Epstein, David G. Debtor-Creditor Law. Nutshell Series. 4th ed. St. Paul: West, 1991.

Fischer, Sandra K. Econolingua: A Glossary of Coins and Economic Language in Renaissance Drama. Newark: U of Delaware P, 1985.

———. “‘He means to pay’: Value and Metaphor in the Lancastrian Tetralogy.” Shakespeare Quarterly 40 (1989): 149-64.

Foley, Stephen. “Falstaff in Love and Other Stories from Tudor England.” Exemplaria 1 (1989): 227-46.

Glenn, Garrard. Fraudulent Conveyances and Preferences. 2 vols. Rev. ed. New York: Baker, Vorrhis, 1940. Vol. 1.

Greg, W.W. The Shakespeare First Folio. Oxford: Clarendon, 1955.

Gurr, Andrew. “Intertextuality at Windsor.” Shakespeare Quarterly 38 (1987): 189-200.

———. The Shakespearean Stage, 1574-1642. 2nd ed. Cambridge: Cambridge UP, 1980.

Harding, Alan. A Social History of English Law. 1966. Gloucester, MA: Smith, 1973.

Helmholz, R.H. Canon Law and English Common Law: Selden Society Lecture Delivered in the Old Hall of Lincoln's Inn, July 5th, 1982. London: Selden Soc., 1983.

Hibbard, G.R. Introduction. The Merry Wives of Windsor. 1973. Harmondsworth: Penguin, 1981.

Hinely, Jan Lawson. “Comic Scapegoats and the Falstaff of The Merry Wives of Windsor.” Shakespeare Studies 15 (1982): 37-54.

Ioppolo, Grace. Revising Shakespeare. Cambridge: Harvard UP, 1991.

Johnson, Samuel, ed. The Plays of William Shakespeare. 7 vols. 1765. New York: AMS, 1968. Vol. 4.

Justinian. The Digest of Justinian. Ed. Theodor Mommsen, Paul Kreuger, and Alan Watson. 4 vols. Philadelphia: U of Pennsylvania P, 1985. Vol. 1.

———. Justinian's Institutes. Trans. Peter Burks and Grant McLeod. Ithaca: Cornell UP, 1987.

Keeton, George W. Shakespeare's Legal and Political Background. New York: Barnes & Noble, 1968.

Kempin, Frederick G., Jr. Historical Introduction to Anglo-American Law. Nutshell Series. 3rd ed. St. Paul: West, 1990.

Kennedy, Frank R. “Involuntary Fraudulent Transfers.” Cardozo Law Review 9 (1987): 531-80.

Kornstein, Daniel J. Kill All the Lawyers?: Shakespeare's Legal Appeal. Princeton: Princeton UP, 1994.

Levenson, Jill. “Comedy.” The Cambridge Companion to English Renaissance Drama. Ed. A.R. Braunmuller and Michael Hattaway. Cambridge: Cambridge UP, 1990. 263-300.

Marcus, Leah S. “Levelling Shakespeare: Local Customs and Local Texts.” Shakespeare Quarterly 42 (1991): 168-78.

———. Puzzling Shakespeare: Local Reading and Its Discontents. Berkeley: U of California P, 1988.

Martines, Lauro. Lawyers and Statecraft in Renaissance Florence. Princeton: Princeton UP, 1968.

Miola, Robert S. “The Merry Wives of Windsor: Classical and Italian Intertexts.” Comparative Drama 27 (1993): 364-76.

Nabokov, Vladimir. Lolita. New York: Putnam's, 1955.

Neale, J.E. Queen Elizabeth I. 1934. Harmondsworth: Penguin, 1973.

Oliver, H.J., ed. The Merry Wives of Windsor: The Arden Shakespeare. 1971. London: Routledge, 1993.

Olson, Elder. The Theory of Comedy. Bloomington: Indiana UP, 1968.

Papke, David Ray. “Discharge as Denouement: Appreciating the Storytelling of Appellate Opinions.” Journal of Legal Education 40 (1990): 145-59.

———. “Rhetoric and Retrenchment: Agrarian Ideology and American Bankruptcy Law.” Missouri Law Review 54 (1989): 871-98.

Parker, Patricia. Literary Fat Ladies: Rhetoric, Gender, Property. London: Methuen, 1987.

———. “The Merry Wives of Windsor and Shakespearean Translation.” Modern Language Quarterly 52 (1991): 225-62.

Parten, Anne. “Falstaff's Horns: Masculine Inadequacy and Feminine Mirth in The Merry Wives of Windsor.” Studies in Philology 82 (1985): 184-99.

Phillips, O. Hood. Shakespeare and the Lawyers. London: Methuen, 1972.

Plowden, Edmund. Les Comentaries, ou les Reportes. London, 1571 (pt. 1), 1578 (pt. 2).

Posner, Richard. Law and Literature: A Misunderstood Relation. Cambridge: Harvard UP, 1988.

Pulton, Fernando. De Pace regis et regni, viz. A Treatise declaring which be the great and generall offenses of the Realme. London, 1608. STC 9548.

Quint, David. Epic and Empire: Politics and Generic Form from Virgil to Milton. Princeton: Princeton UP, 1993.

Radin, Max. “Fraudulent Conveyances at Roman Law.” Virginia Law Review 18 (1931): 109-30.

Rastell, William. “To the Gentle Reader.” A Collection in English, of the Statutes now in force, continue from the beginning of Magna Charta. London, 1598. STC 9321.

Rushton, William Lowes. Shakespeare's Legal Maxims. 1907. New York: AMS, 1973.

Sandars, Thomas Collett, ed. The Institutes of Justinian. 7th ed. London: Longman, 1952.

Schafer, Elizabeth. “The Date of The Merry Wives of Windsor.” Notes and Queries ns 38 (1991): 57-60.

Segal, Erich. Roman Laughter: The Comedy of Plautus. 2nd ed. New York: Oxford UP, 1987.

Shakespeare, William. The Merry Wives of Windsor (1602). Shakespeare Quarto Facsimiles, No. 3. Oxford: Clarendon, 1963.

———. Mr. William Shakespeares Comedies, Histories, & Tragedies. A facsimile edition of the First Folio prepared by Helge Kökeritz. Intro. Charles Tyler Prouty. New Haven: Yale UP, 1954.

Simpson. A. W. B. A History of the Land Law. 1961. 2nd ed. Oxford: Clarendon, 1986.

Spenser, Edmund. A Briefe Note of Ireland. The Prose Works. 233-45.

———. A View of the Present State of Ireland. The Prose Works. 39-232.

———. The Works of Edmund Spenser: A Variorum Edition. 11 vols. 1932-49. Ed. Edwin Greenlaw et al. Vol 9: The Prose Works. Ed. Rudolf Gottfried. Baltimore: Johns Hopkins UP, 1949.

Theobald, Lewis L. Cited in The Plays of William Shakespeare. 21 vols. Ed. George Steevens. London, 1803. Vol. 5.

Thornley, Isobel D. “The Destruction of Sanctuary.” Tudor Studies Presented. Ed. R. W. Seton-Watson. London: Longmans, 1924. 182-207.

Tiffany, Francis B. Handbook of the Law of Sales. 2nd ed. St. Paul: West, 1908.

Trevelyan, G. M. Illustrated History of England. 1926. London: Longmans, 1956.

Underhill, Arthur. “Law.” Shakespeare's England. 2 vols. 1916. Oxford: Clarendon, 1950. 1: 381-412.

Vickers, Brian. The Artistry of Shakespeare's Prose. London: Methuen, 1968.

Wallace, Charles William. The First London Theatre. 1913. New York: Blom, 1969.

Wallerstein, Immanuel. The Modern World-System: Capitalist Agriculture and the Origins of the European World-Economy in the Sixteenth Century. New York: Academic, 1976.

Weisberg, Richard. Poethics, and Other Strategies of Law and Literature. New York: Columbia UP, 1992.

Weisberg, Robert. “Commercial Morality, the Merchant Character, and the History of the Voidable Preference.” Stanford Law Review 39 (1986): 3-138.

West, William. Symbolaeographia. London (?): Tottel, 1590.