An interesting overview of the early developments in debtor-creditor relations.

Publisher Comments

Category: Bankruptcy & Restructuring This title is part of the Bankruptcy Primer list. Of Interest: A Treatise on the Law and Practice of Bankruptcy: Under the Act of Congress of 1898 As We Forgive Our Debtors: Bankruptcy and Consumer Credit in America Bankruptcy: A Feast for Lawyers Bankruptcy Crimes: Third Edition Bankruptcy in United States History Logic and Limits of Bankruptcy Law Ten Cents on the Dollar: Or the Bankruptcy Game The PRC Enterprise Bankruptcy Law: The People's Work in Progress You Can Go Bankrupt Without Going Broke: An Essential Guide to Personal Bankruptcy

This study of debtor-creditor relations covers a three-century span from the beginnings of colonization to the enactment of a permanent system of national bankruptcy relief in 1898. Geographical areas covered are New England, and the Middle and South Atlantic sections. Two central themes can be discerned during that time from the relationships between debtors and creditors -- imprisonment for debt and discharging an insolvent debtor of his obligation by bankruptcy. The history of bankruptcy provides a perspective on a larger and more profound matter -- the evolution of the role of credit in America.

From the back cover blurb:

Americans now depend more heavily upon credit than any other society on Earth, or any other time in history. Borrowing has become a way of life for millions of families, and it is hard to imagine a time when charge accounts did not exist. Nonetheless, it would be a mistake to assume that, because a wallet filled with plastic instead of cash is a relatively new phenomenon, Americans have not been borrowers and lenders since the colonization of the New World. Author Peter J. Coleman proves otherwise. In one Form or another -- notes of hand, book credit, commercial paper, mortgages, land contracts -- settlers borrowed to pay their passage from Europe, to buy and clear land, to build and operate mills, to purchase slaves, and to gamble and drink. Debtors' prison awaited those who could not pay their debts, and a pauper's grave received the unfortunate who lacked the private means to feed and clothe himself in prison. While the debtors' prisons described in this book no longer exist, the author maintains that our credit-oriented society has yet to devise cheap, efficient, equitable, and humane methods of enforcing contracts for debt.

Review by Susan Pannell
From Turnarounds and Workouts, September 15, 1999

Suppose that, three hundred or so years ago, you were in urgent need of a pig. But you couldn't afford the pig, so you purchased it on credit. (Yes, there was credit in the woodsy days of this country; it wasn't strictly a cash and barter economy.) Some time later, the pig having served the purpose for which it was intended and hence being no longer recoverable, and you not being the winner of the lottery you'd relied upon to pay your debt, the creditor seeks satisfaction.

He could proceed against you in a couple of different ways, but either way, assuming you still hadn't won that lottery, you went to jail. And there you rotted, unless you had the means to buy your way out, in which case you wouldn't be there in the first place. In a notorious perversion of logic, a debtor, like any prisoner, was expected to feed and clothe himself while incarcerated. A pauper's grave - the so-called potter's field - awaited the debtor who died in prison. It could have been worse: under ancient Roman law, creditors were entitled to chunks of your actual body and - sorry, Will Shakespeare - there was no penalty for hacking off a disproportionate slice.

What changed this nefarious system? Not sentiment (at least not primarily), but hard economic facts. For one thing, It was an ineffective arrangement. The creditor derived malicious satisfaction from watching his debtor fade away in prison, but that didn't satisfy the debt. For another thing, the colonies suffered a chronic people shortage. They needed laborers and militiamen. Society couldn't afford to lose the prisoner's labor, or his ability to shoulder a musket and defend against Indian attacks. Nor could society afford to support the innocent wife and children "perishing with Hunger & Cold" (here's where sentiment entered into the equation).

The system began to be modified in various ways. For some categories of debtors, commonly single men who owed little, some colonies substituted indentured service for imprisonment. Another modification, applicable to petty debts, provided a release from prison and immunity from rearrest of the debtor swore he was impoverished - presumably a more effective deterrent centuries ago when there was true shame associated with being a deadbeat. A third modification put clothing, furniture, eating utensils, and tools beyond the reach of attachment.

None of this was of any help to the larger defaulters, the businessmen, and it was for their benefit (economic necessity, again) that colonial bankruptcy laws began to evolve. Interestingly, the colonies preferred voluntary proceedings, giving the right of action to the insolvent, in contrast to English bankruptcy practice, which sided with the creditor. Development of bankruptcy relief was by no means smooth as, predictably, many stern and rockbound colonists took a moral stance against it. Complicating matters was the requirement that, until the Revolution, a debtor relief law, like any colonial legislation, had to be approved by the Crown, in this case the Board of Trade.

The author provides a painstaking region-by-region analysis of the development of bankruptcy law, and sums up all the history in a concluding chapter.

Peter J. Coleman, Ph.D., was educated at Victoria University of Wellington, New Zealand, the University of Texas and Harvard Law School. He is the author of a wide range of books and articles on New Zealand and American History, and is Emeritus Professor of History, University of Illinois at Chicago.

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