Protection of Family Property from Creditors in the Enlightenment-Era Court of Chancery

Abstract

The late eighteenth century English court of Chancery protected debtors, who held property in a non-business context, from their creditors. The court extended its policy of keeping family property in family hands far beyond conventional conjugal families: lonely widows and widowers, unmarried women and men, nephews, nieces and cousins of childless decedents, and even generic groups of relatives were all accorded a radical protection. Not only landed estates were so protected, but any type of personal property too. The recipients of Chancery's protection make a wide cross-section of British society, from the Nobility to humble merchants and professionals; it was not a predominantly aristocratic court. The substantive work of Chancery during this period has been curiously understudied. Modern research has largely reproduced a traditional Victorian Benthamite discourse focused on the court's inadequate procedure. Most research of the substance of English law during the High Enlightenment has focused on the law of trade and the common law courts; a rivulet has focused on women's rights and property. This article attempts to redress this imbalance by studying one of Chancery's key substantive policies in the law of family property, then the most lucrative and best-developed area of English law. The results undermine North and Weingast's well-known explanation of the rise of the free market in eighteenth century England.How could such an anti-business policy be maintained, and even intensified, long after the onslaught of the industrial revolution? While the policy reflected the court's ecclesiastical roots, creditors' acquiescence in it is explained by a relative glut of money on the market and the corresponding dearth of investment opportunities, along with the harms and benefits produced by the policy being relatively evenly distributed across the propertied population.