Bankruptcy vs. debtor's prison in 19th century Britain

[Lumpy]

I have a copy of the excellent “What Jane Austen Ate and Charles DIckens Knew” by Daniel Pool, an invaluable guide to the conventions of 19th century British life that might otherwise bewilder readers of classic literature. In the chapter explaining the workings of debt, insolvency and it’s consequences, it says

However stark the consequences of bankruptcy might seem, neither Mr. Dombey nor his fellow bankrupts Mr. Tulliver and Henchard, go to jail. They simply lost everything they owned. If, however, for largely technical reasons having to do with whether you were a “tradesman” or not, you were defined by the law as a “debtor” rather than a “bankrupt”, you were generally put in jail, and there was none of this business of working out an arrangement satisfactory to creditors.

About all the book goes on to say was that the legal distinction was that bankruptcy allowed creditors to seize whatever was seizable and that was the end of it legally whereas “debt” left the creditor with no civil recourse but imposed a criminal penalty on the debtor until he either payed or appealed to a special court to be declared insolvent. Can someone explain just what these “technical reasons” were?

[Sage_Rat]

I’m only going by what you have quoted, but a tradesman is someone who is a skilled laborer. A factory worker, for instance, is simply a laborer. A man who has learned how to build factory machines, on the other hand, is someone who is a tradesman. He has a particular knowledge of a particular profession, that takes some training.

Now, I believe that previous even to 1970s America, banks generally didn’t make loans to people below a certain level of means, so it’s pretty likely that in 19th century England that banks wouldn’t loan to laborers.

So really this is probably coming down on the line of whether one is middle-classed or upper-classed. A tradesman is middle-class. His job is not in speculation and he probably doesn’t have a wealthy family to support him. If he’s borrowing money, it’s probably because he’s a gambler or a drunk or somesuch. If he loses everything he has to own, he’s thrown his family into poverty, rather than into a set-back since there’s no wealthier family to keep them afloat.

WAG, YMMV, etc.

[Chez_Guevara]

In the 17th century, bankruptcy was a complex legal issue, and few people actually ended up in the debtor’s prisons, as illustrated by Charles Dickens. Until 1841, the legal status of being a bankrupt was confined to traders owing more than £100. Debtors who were not traders did not qualify to become bankrupt, but remained “insolvent debtors”; responsible for their debts, but unable to pay them. They remained subject to common law proceedings and indefinite imprisonment, if their creditors so wished. The legal definition of a trader came to mean all those who made a living by buying and selling, which in due course also embraced skilled craftsmen who worked on various materials. However, farmers were specifically excluded. It was better to be a bankrupt, than an “insolvent debtor” and as a result, debtors would give misleading general descriptions of their occupations.

Paul Dombey (Dombey and Son, Charles Dickens) is the owner of a shipping company. Tulliver (The Mill on the Floss, George Eliot) is a mill owner and Michael Henchard (The Mayor of Casterbridge, Thomas Hardy) is a grain merchant. They all made their living in buying and selling and were therefore classed as traders (rather than tradesmen), so avoiding prison when faced with bankruptcy.

The History of Debt.

[ralph124c]

So what would happen to a broke naval officer (like Capt. Jack Aubrey)? Jack HAS to entertain, to keep up his networking, and also to maintain the favor of his superior officers. So, he borrows, and as he cannot sell his wife’s estate (it is encumbered by covenants), he faces ruin, if he cannot grab a prize ship.
Would Capt. Jack be allowed bankruptcy?

[aldiboronti]

Whereas William Dorritt, the father of Little Dorritt in the Dickens novel of the same name, has been imprisoned for debt in the Marshalsea for so long that his children have all grown up there. Dorritt, needless to say, was a humble tradesman.

[Chez_Guevara]

@ralph124c

So what would happen to a broke naval officer (like Capt. Jack Aubrey)? Jack HAS to entertain, to keep up his networking, and also to maintain the favor of his superior officers. So, he borrows, and as he cannot sell his wife’s estate (it is encumbered by covenants), he faces ruin, if he cannot grab a prize ship.
Would Capt. Jack be allowed bankruptcy?

I’m not familiar with the stories, but a quick look at the plot summary of Post Captain given by Wiki tells us that:

Aubrey plans to marry Sophia Williams, but his fortune soon is gone between an order to repay a wrongly captured merchant ship and the rest of his money being embezzled by his prize-agent. Aubrey has to flee the country to avoid going to debtors’ prison and he plans to live with Maturin in Spain.

So he faced jail at the time of his flight abroad (1802) but, following capture by the French and his subsequent escape to England, Aubrey is restored to active service at the outbreak of the Napoleonic Wars in 1803.

Perhaps the threat of prison receded because defaulting naval officers were required for more useful pursuits like fighting the French. That’s a guess.

[muldoonthief]

@Chez_Guevara

I’m not familiar with the stories, but a quick look at the plot summary of Post Captain given by Wiki tells us that:

So he faced jail at the time of his flight abroad (1802) but, following capture by the French and his subsequent escape to England, Aubrey is restored to active service at the outbreak of the Napoleonic Wars in 1803.

Perhaps the threat of prison receded because defaulting naval officers were required for more useful pursuits like fighting the French. That’s a guess.

In the books (and I have no idea if this is how it really worked), you could only be sent to debtors prison if a tipstaff (who appeared to be a kind of private law enforcement) hired by an attorney representing one of your creditors arrested you, and there were some pretty strict rules as to when & how they could do so. They had to actually touch you with their staff, they couldn’t arrest you on Sunday, they couldn’t arrest you in certain areas (like the Liberty of the Savoy in London). Jack originally fled to France because he had no way to pay back his debts, and avoiding the tipstaffs was difficult. He returned because he hoped to get a ship after war broke out again - an officer physically located on a ship is definitely immune to tipstaffs, and the hope of more prizes was the only way he saw of repaying his debts. So it was more that the Navy didn’t really give a damn if you were in debt or not, but the creditors would be more than happy to toss him into prison if they could find/catch him. IIRC, they do so early in “HMS Surprise”, and the fact that he’s a Navy Captain who is actually assigned to a ship at a time of war doesn’t make a difference.

[Chez_Guevara]

Thank you.

Having located this piece concerning Law and Morality in Patrick O’Brian’s Post Captain, published by the Journal of Maritime Law & Commerce, I tend to believe that’s the way things really worked.

There’s a description of Aubrey’s travails in evading the tipstaffs on page 18. The journal doesn’t quibble with it.