Bankruptcy in early modern England: bankruptcy and insolvency in the early modern Court of Chancery, 1543-1628

Thesis

This thesis presents a detailed analysis of the Chancery practice in relation to both bankruptcy and insolvency between 1543 and 1628. The aim of the thesis is to improve our understanding of the foundations and early development of bankruptcy and insolvency law in England. The methodology of the thesis is primarily doctrinal, but it uses historical methods to trace and understand unexplored cases and other legal archival materials in Chancery records, and together with additional historical and literary sources puts the law into a social and economic historical framework.

The thesis shows that the Court of Chancery had two functions in relation to bankruptcy and insolvency. The survey of the records shows that the Court of Chancery exercised a review function in relation to the decisions of the commissions of bankrupts which were authorised to deal with bankruptcy matters in the first instance, including declaring debtors bankrupt. This meant that the Court of Chancery effectively worked as an appellate court for the decisions of commissions of bankrupts.

In addition to the review function, the Court of Chancery also had an equitable function in relation to insolvency matters. In its equitable function the Court of Chancery dealt with issues concerning insolvent debtors that were not regulated by statutory bankruptcy or the common law. This thesis breaks with conventional scholarship and shows that the Chancery practice in this area appears to have been very humane, with special care for the most vulnerable in society, and that ‘modern’ bankruptcy principles and ideas, such as the concept of insolvency by misfortune, voluntary bankruptcy, debt settlements (compositions), majority control and the discharge of debts, which have generally been attributed to the bankruptcy statutes of 1705 and 1711, were already applied in the Court of Chancery in this earlier period.

Authors: Stolker, FC

• DOI: 10.5287/ora-4jjpradok
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: early modern period; property law; debts; Francis Bacon LC; insolvency; vulnerable debtors; debt settlements; sureties; financial rehabilitation; seventeenth-century; fraud; bills of conformity; Privy Council; discharge of debts; King James I; widows; orphans; debtor's prison; bankruptcy; archival materials; sixteenth-century; equity; land law; Chancery record; Court of Chancery
• Subjects: Legal history; Law; Seventeenth century; Bankruptcy law; Property law; Early modern, 1500-1700; Insolvency law