Of Sheep, Twyne's Case, and a Better Story


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Holden FieldProfessor Emily Kadens has just published a great paper that explodes the myths about Twyne's Case. We all know Twyne as the case where an insolvent farmer gave away his sheep, thereby leading to a Star Chamber decision that laid the foundation for modern fraudulent conveyance law. It turns out most all of the story we know isn't true. Even better, the actual story is much more interesting and instructive.

Kadens did an incredible amount of archival research, going through the depositions and other original records from the case. Obstacles included documents that had been partially eaten by rats, a point I need to remember the next time I want to complain about difficulties with my own research.

Pearce, who was the debtor, had resisted writs of execution from the undersheriff who had come to seize his property, which was a lot more than just a few sheep. And, it was not Pearce himself, but his laborers and community members who did the resisting. Confrontations occurred over three days.  After an unsuccessful foray to Pearce's farm on the first day, the undersheriff made somewhat of a surprise attack on the second day to seize cattle at a more distant place called Holden Field (the picture to the right, courtesy of Kadens). The undersheriff pastured the cattle overnight at Pole Meadow (pictured below the fold, again courtesy of Kadens). The next day, the undersheriff attempted to drive the cattle to market, but Pearce's allies interceded and took the cattle.

Pole MeadowLord Edward Coke, the attorney general, famously prosecuted the case. As Kadens documents, rather than a deep interest in commercial law, Coke's interest stemmed from the resistance to lawful process, a "riot" in the legal parlance of the times. In his reporting of the case, which is the way we have come to know it, Coke does not put the facts in the larger context of local unrest against the central authority of the Crown, but that was clearly a big part of the case to the lawyers and to the court.

Perhaps most interesting is Twyne's role as the recipient of the allegedly fraudulent transfer. Years prior to the "riot," Pearce had conveyed his assets to Twyne, but Pearce continued to use them. In exchange, Twyne appears to have forgiven some debts that Pearce owed to him as well as assumed liability for some debts Pearce owed to others. The transaction was more like a lending relationship with aspects of a workout. And, although the evidence is not conclusive, Twyne appears to have played this role in other transactions, being something akin to a local banker.

Considering the role of Twyne and the coordinated actions of some local Hampshire farmers, I asked Kadens if the story here was conflict between moneyed interests in London and the rural gentry. Kadens wrote me she did not think so:

I'd say it is a story of a largely agricultural and commodity-producing community of mostly upper-middle class farmers and brokers who develop their own credit networks either largely detached from, or only subsidiarily tied into the London networks. This may be driven by the lack of banks and other investment opportunities and the novelty of legally lending at interest, combined with having your wealth tied up in farm production and livestock.

And, that is why the story is really interesting. It tells us a lot about credit networks at that time. Also, we tell ourselves a lot of stories about the historical development of the commercial law--another area where I would recommend reading all of Kadens's myth-busting work on the law merchant. Understanding the credit networks of the era are an important part of understanding that history.

I also asked Kadens how she came to do this work. After all, many people had written about Twyne. Why did she think there was a new story to tell? She blamed Professor Bruce Markell, a former bankruptcy judge and now law professor, who will be familiar to many blog readers. The story shows how the formula for good scholarship is often curiosity meeting serendipity:

The truth is that it is all Bruce’s fault. A few years ago, I started working in the Star Chamber archive. Consequently, Bruce asked me to search for the Twyne documents. I had no interest in the case. In my experience, the facts as laid out in 16th and 17th-century fraudulent conveyance cases aren’t that interesting. But I did what he asked, and found part of the case material, all of it from Coke’s side. It then turned out that the facts were more interesting than Coke’s report made them out to be, and I went digging for the rest of it, much of it miscatalogued or in related cases in the Star Chamber and other courts.

It is to all of our benefit she did the digging. The piece is a fantastic illustration of a master historian at work. Her reconstruction of events from over 400 years ago are a marvel, reconstructing, for example, how the undersheriff would have come to Pearce's farm. Kudos to Professor Kadens for another great article and to the American Bankruptcy Law Journal for publishing it. There is a lot more to the story than I have had space here to discuss. The whole article is worth a read.