Comedy of niceties that discombobulated law

The Character of Credit
January 23, 2004

An annual income of £500 could not sustain the lifestyle of the younger son of the late Sir George Wombell, who succumbed to the temptations of the racing set surrounding the marquis of Hastings. The prospect of coming into £200,000 on his 21st birthday was too much of a temptation to him and to shopkeepers eager to supply his extravagance. At the age of 19, young Wombell purchased crystal, ruby and diamond sleeve links, a silver-gilt antique goblet, a bottle of smelling salts and gold studs on credit from Ryder, a Bond Street jeweller. When payment was not forthcoming, Wombell was taken to court in 1864 and promptly pleaded that he was an infant and therefore not liable to pay.

In law, minors and married women were not personally liable for debts, for they could act only as agents for their parents or guardians and husbands, except for items that could be defined as necessaries. The case now turned on the definition of the items purchased from Ryder. The jury concluded that all the items were necessary for a young man of Wombell's rank, except the smelling salts and earrings, which were feminine.

Wombell's lawyer did not accept defeat, and appealed on the grounds that most of the items were luxuries, regardless of rank.

The case now descended into comedy. Wombell, it transpired, had married at the age of 20 and had a son. As the lord chief justice remarked, if a wife was necessary at the age of 20, so were smelling salts. Wombell's lawyer countered that a wife was not necessary for anyone aged 20, and even if she were, a baby was not. The lord chief justice was also exercised by the earrings. If Wombell had purchased them for another woman, they would be a luxury, but if he bought them for his future wife, clearly they were necessary to his courtship. Eventually, the lord chief justice cut through these semantic confusions, instructing the jury to find for Wombell. Mr Ryder returned to Bond Street a wiser and poorer man; Mr Wombell, it must be hoped, returned to his unnecessary wife and baby rather than to celebrations with the marquis of Hastings.

The Ryder vs Wombell case might provide the plot for an Oscar Wilde play, and Margot Finn's outstanding book shows this to be no fanciful conceit. As she demonstrates, the relationships between debtors and creditors, the confusion of goods and people, formed central themes in novels, autobiographies and diaries from the mid-18th century to the first world war. Any simple story of the rise of economic individualism and freedom of contract is complicated by Finn's compelling account of the persistently cultural nature of the market. Literary representations of consumer society stressed considerations of character, reciprocity and gift exchange within dense social networks, and so do the narratives of court cases. By weaving together the stories of novelists and diarists with those of lawyers, Finn challenges the impersonal accounts of Adam Smith or Karl Marx.

Any retailer selling goods was engaged in a complex and risky business, as Mr Ryder found to his cost. He had to read the character of his customer and interpret the social meaning of the goods. The risk arose from the fact that most goods were bought by women acting as agents of their husbands. In the case of Jolly vs Rees in 1864, the court ruled that a wife living with her husband could not be simply assumed to act as his agent. Although some judges held that husbands should be liable for necessaries, the law was confused and contested, leaving retailers in considerable uncertainty.

Judges might hold that debts should be repaid, in accordance with the tenets of political economy and freedom of contract; others held that retailers were seducing women into frivolity and extravagance, so that the courts should protect the male head of household against this moral threat.

"Moral economy" did not simply disappear with the advance of "political economy", as E. P. Thompson argued; it survived and even flourished.

The cultural definition of goods depended on the class and gender of the consumer, so that people and their purchases were confounded. Nowhere was this confusion more apparent than in the practice of seizing men's bodies as collateral for their debts. Debtors' prisons of the 18th and early 19th centuries are familiar from David Copperfield and other novels. Debtors were the largest single group of prisoners in the 18th century, and were often drawn from the indigent middle class, like Charles Dickens' own father. The prisons were convivial, largely run by the inmates, who rented rooms and purchased services; they could come and go and receive visitors more or less at will. They could work and draw on charity, using the prison as a refuge from their creditors. By the mid-19th century, the prisons were changing to places of discipline and punishment. Imprisonment for larger debts ended in the 1860s when bankruptcy was extended to non-traders, allowing them to discharge large debts with a partial payment.

The county courts, set up in 1846, treated small debtors more harshly. They gave massive power to the shopkeeper to secure payment of debts, defining the debtor as an irresponsible consumer to be disciplined by the threat of imprisonment, which was now a means of enforcing payment rather than a refuge. Even so, not all judges saw themselves as agents of political economy and possessive individualism. Some continued to temper the law with moral considerations, denouncing retailers who took advantage of the poor or failed to act with a sense of equity.

Consumer markets grew in the 19th century, still permeated with notions of moral economy and personal character. The real change came between the wars, with the rise of much more routine and formalised credit relations through hire purchase and instalment plans. In 1935, married women were made liable for their debts, and imprisonment for debt also changed its character: consumers were replaced by men who failed to pay maintenance or bastardy orders.

Finn has made us all her debtors, for an outstanding book that is a must for all historians of modern Britain. It is a major contribution to the growing field of consumer history; it extends our understanding of the role of the law in the economy; and it shows historians how to read literary evidence with subtlety and intelligence. It is the first in a new series of Cambridge Social and Cultural Histories, and provides a model for others to follow.

Martin Daunton is professor of economic history, University of Cambridge.

The Character of Credit: Personal Debt in English Culture, 1740-1914

Author - Margot C. Finn
Publisher - Cambridge University Press
Pages - 363
Price - £50.00
ISBN - 0 521 82342 0

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