In pursuit of the merchant debtor and bankrupt, 1066-1732

This pursuit of the merchant debtor is divided into three \nParts, the first two Parts deal with the enforcement of debt as \na whole, with the emphasis on merchant transactions; the last Part \nbeing kept entirely to the development of the bankruptcy laws. \nPart One is given over to a study of the law as it stood \nlargely prior to 1285. \nChapter 1 produces a general survey of the methods of debt \nenforcement which bad been adopted by earlier alien societies, in \norder to appreciate more readily the slow manner in which English \nlaw applied itself to helping the merchant creditor. \nChapter 2 deals with the emergence of the Royal Courts, and \nshows the pre-occupation in the first two centuries of post Conquest \nLaw with the enforcement of Services due to a Lord,rather than with \ndebts. \nChapter 3 pays particular attention to the relationship and \ntransactions between the King and the Jews; together with the \ngradual development of the Writ of Debt and its acceptance by the \nRoyal Courts. \nChapter 4 studies the means for enforcing attendance at court \nand the excuses which might be offered. Only a defaulting accountant \nis subject to bodily attachment. Even when the debtor attends, the \nmodes of proof awarded to be performed at another day pay no attention \nto legal right. \nChapter 5, continues, on the day appointed for proof to be made \nwith an account of the last stage of the trial and the methods of \nexecution at the disposal of a creditor. The recording of debts on \nCourt Rolls, the awarding of damages and costs, the place of equity and the punishment of fraud in the early court, and the methods \nof debt enforcement existing in Fair and Borough Courts are all \nincluded here. \nPart Two records the history of debt enforcement from 1283 \nto l542. \nChapter 6 covers the various enactments which provided \nspecial machinery for the enrolment of debts with the ready methods \nfor enforcement of such enrolled debts, and providing imprisonment \nfor the contumacious debtor. The Statutes Merchant, the Statute \nStaple, the provision for Statutory Recognizances fall within this \nhead. The granting of the Writ of Elegit is also contained here. \nChapter 7 sets out the reforms in the law which finally \nenable the debtor to be imprisoned on means process, providing \noutlawry for the missing debtor. This form of imprisonment is \nextended by Common Law to the judgment debtor. To safe-guard the \ndebtor's freedom there are the provisions relating to Bail and the \nuse of the Writs Corpus Cum Causa and Audita Querela. \nChapter 8 considers the use of the fraudulent conveyance \nmade to defeat the creditor and the manner of its adoption in \nrelation to the use of Sanctuary. \nChapter 9 surveys the many courts and varying jurisdictions \nof this period. Outside such jurisdictions there are the protection \nof the King, the Royal prerogative and the use of special privileges \nto be contended with. \nChapter 10 shows how the petition to the King, his Council, \nor his Chancellor came to be used as a means of combating fraud. \nChapter 11 describes the limited way in which the Legislature \nand the Common Law came to deal with the particular fraudulent \nactions of forgery, perjury and duress. Chapter 12 investigates the way in which imprisonment of \nthe debtor is regulated. This covers the special position of the \nsheriff and the allowance of bail. The basic need was for the \ndebtor to be kept safely in prison. If this was not done, then the \ngaoler or sheriff must pay the creditor. \nChapter 13 is devoted to the position of the imprisoned \ndebtor who must by-law live or die of his own sustenance. Gaolers \nextorted or extracted what they could for services; charity is the \nonly answer to a poor debtor's survival. \nChapter 14 brings this period to a close with a review of \nthe widening mercantile horizons, the need for capital bringing \nwith it a rebirth of usury, and the general ineffectualness of the \nlegal machinery to deal with the increasing merchant failures. \nPart Three relates solely to the development of the Bankruptcy \nLaws. \nChapter 15 shows the difficulties which were found in producing \nand enforcing the first bankruptcy enactment, 34. 35 Henry \nVIII, c.4. \nChapter 16 is confined to an exposition of the way in which \nthe courts interpreted the term 'trader' for the purposes of the \nbankruptcy laws. \nChapter 17 discusses the various actions which, if accompanied \nby the intention to delay or hinder creditors, might render \na debtor a bankrupt under 13 Elizabeth I, c.7. \nChapter 18 completes the list of actions specifically termed \n'acts of bankruptcy' up to and including the enactment of 5 George \nII, c.30. \nChapter 19 outlines the position of the Lord Chancellor in \nthe bankruptcy machine and the manner in which a creditor might petition for a commission to issue so that commissioners of \nbankrupts could be appointed. \nChapter 20 follows the process from the adjudicating of \nthe debtor a bankrupt, and takes as its subject the appointment \nof the assignees and their duties, and the persona who might \ncome in under a commission as creditors in order to prove their \ndebts. Future debts may be proved but contingent debts must stay \noutside. Fraud will provide a complete bar to a creditor. \nChapter 21 demonstrates the wide powers given to the \ncommissioners so that they might obtain the appearance, and make \nfull examination of the bankrupt. Failure to comply might mean \ndeath to the bankrupt. Similar powers are given so that witnesses \nmight be adequately exm1ned. \nChapter 22 reveals the completeness of the authority given \nin order to strip the bankrupt of all property held by him at the \ntime of his act of bankruptcy. There are few exceptions to this \nrule. \nChapter 23 ends the analysis of the commission with the \ngranting of the certificate of discharge and the rights of the \nvarious creditors to participate in the distribution of the estate \nafter the deduction of certain allowances. The costs of the \ncommission and thechargea of the commissioners might well render any \nsuch distribution largely illusory. Also in this chapter are included \ndetails concerning the keeping of the records of the commission \nand the circumstances under which a commission might be \nsuperseded. \nChapter 24 illustrates the general attitude towards bankruptcy \nand bankrupts during this period. In a harsh, invigorating \nage the legislature met reality with reality and inflicted severe \npunishments. Although the death penalty was available to punish the \nfraudulent bankrupt, the provision was rarely invoked. nally comes \nthe era of reform and the bankrupt is redeemed, to emerge a quasihonest \ncitizen rather than a quasi-criminal.