Colonial Courts and Secured Credit: Early American Commercial Litigation and Shays’ Rebellion

Abstract

There is a peculiar inconsistency within current legal scholarship concerning the role of the courts in commercial relationships during the colonial period. Colonial legal scholars universally recognize that debt litigation ending in default judgments overwhelmed the caseload of colonial courts. At issue, however, is whether this high level of uncontested cases reflects a rationally organized effort of creditors and debtors to endow credit agreements with greater security, or whether these uncontested cases represent efforts to collect after real defaults and, thus, are evidence of widespread colonial insolvency.