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The language of the law. Part Latin, part Anglo-Saxon, all confusing.

Flush, our ancestors generally weren’t.

Well, okay, maybe yours were. After watching the Anderson Cooper segment of Finding Your Roots this week1, The Legal Genealogist is reminded that there are some folks out there whose ancestors weren’t peasants the way mine were.2

3D Man Broke BusinessmanBut for many of us, at one point or another, we encounter an ancestor whose pockets were empty: so much so that he ran afoul of the laws of the day.

The law was rarely kind to the man, or occasional woman, who couldn’t pay debts as they came due. Debtors were often subject to transportation to a distant land, and colonial America was a common destination for English debtors.3

In America, debtors were often sent to jail — debtors’ prisons — as late as the middle of the 19th century. In Baltimore, Maryland, for example, some 590 debtors were sent to jail in the year ending November 1849.4

And there are two words we often see in records we find about our financially-challenged ancestors. One is bankrupt. And the other is insolvent.

Today, they’re pretty much used interchangeably in the law — but that wasn’t always the case. So let’s look at those two terms as we might run across them in the records.

An individual was considered insolvent when he couldn’t pay his bills. The dictionary definition is “one who cannot or does not pay; one who is unable to pay his debts; one who is not solvent; one who has not means or property sufficient to pay his debts.”5

And an individual was considered bankrupt when the law allowed his creditors to step in and act against him in a particular way. Again, the dictionary definition is a “person who has committed an act of bankruptcy; one who has done some act or suffered some act to be done in consequence of which, under the laws of his country, he is liable to be proceeded against by his creditors for the seizure and distribution among them of his entire property.”6

You can see the difference here, right? An ordinary person might often be insolvent — unable to pay his bills. But that person was usually dealt with on a one-to-one basis versus a particular creditor. If the creditor decided to sue, or get a judgment for debt, then the debtor and the creditor would fight it out one on one.

In a bankruptcy case, all of the creditors gang up on the debtor, and all fight it out at once. And historically it was a rare case when the law stepped in and declared a person bankrupt. Most of the time, a bankruptcy was forced on a debtor who was in business, not just a local joe.

But that doesn’t quite explain what the big difference was between the two, in the kinds of records we’ll see as genealogists. For us, we’re going to see it in who asked the courts to act. “(I)nsolvent laws operate at the instance of an imprisoned debtor; bankrupt laws, at the instance of a creditor.”7

Here’s the way it’s explained by Black in his Law Dictionary:

The leading distinction between a bankrupt law and an insolvent law, in the proper technical sense of the words, consists in the character of the persons upon whom it is designed to operate… (A) bankrupt law, in its proper sense, is a remedy intended primarily for the benefit of creditors; it is set in motion at their instance, and operates upon the debtor against his will, … although in its result it effectually discharges him from his debts. An insolvent law, on the other hand, is chiefly intended for the benefit of the debtor, and is set in motion at his instance, though less effective as a discharge in its final result.8

So when our ancestors were in the courts as alleged bankrupts, it’s because their creditors wanted it. They wanted to be able to take all of the debtor’s property and divide it up among themselves, leaving the debtor with nothing — but also with no debts.

When our ancestors were in the courts as insolvents, they were the ones who wanted to be declared insolvent, because getting that designation would free them from the debtor’s jails.

In both cases, the ancestor was still broke. But the reasons for being legally considered to be broke were different.


SOURCES

  1. See “Our American Storytellers,” Finding Our Roots, PBS (http://www.pbs.org/ : accessed 8 Oct 2014).
  2. Anderson Cooper’s mother was Gloria Vanderbilt. Yes, that Gloria Vanderbilt. See ibid.
  3. See Acts of Geo. II, chap. 31 (1743), in Danby Pickering, ed., The Statutes at Large from the 15th to the 20th Year of King George II, vol. 18 (Cambridge, England: printed by Joseph Bentham, 1765), 142; digital images, Google Books (http://books.google.com : accessed 8 Oct 2014).
  4. See Prison Discipline Society, 26th Annual Report of the Board of Managers of the Prison Discipline Society (Boston : T. R. Marvin, 1851), 93; digital images, Google Books (http://books.google.com : accessed 8 Oct 2014).
  5. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 629, “insolvent.”
  6. Ibid., 118-119, “bankrupt.”
  7. Ibid., “bankruptcy.”
  8. Ibid., 119, “bankrupt law.”
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