I. Landlord Remedies and the History of Capitalism

On May 17, 1894, a reporter for the New York Times discovered Sarah Goldberger and her four children living on the sidewalk in front of their tenement home at 19 Allen Street on the Lower East Side. “Piled on the sidewalk were the household effects of the poverty-stricken family, and Mrs. Goldberger, a delicate woman, sat watching and brooding over her misery, while her husband was away looking for assistance to find a shelter for his wife and children.” Goldberger, speaking through an interpreter, told the reporter that her husband was an unemployed cloakmaker, and that she could not work after having given birth 3 months before. When their money ran out and they could not come up with $4 to pay a half-month's rent, their landlords Wolf Solomon of 92 Ludlow Street and his “fat, well-preserved” wife obtained a warrant of eviction to throw them out of their two room apartment. The 3 days’ grace afforded by the summary process laws were not enough to find help from their equally poor friends, and “at 4 o'clock Wednesday afternoon a Marshal came, and with no gentle hand had the miserable assortment of furniture carried out of the house and piled upon the sidewalk.” Goldberger hoped to find shelter before the rain destroyed her furniture.Footnote ⁸

Sarah Goldberger's furniture was worth nothing to her immigrant landlords; quickly turning over the apartment was what mattered. The Goldbergers were at the bottom of an elaborate system of subleasing, through which many Lower East Side landlords were actually tenants who subleased apartments to cover their rent to an absentee owner; the Solomons could also have been slum landlords who owned their properties, but had to pay heavy debts to builders and immigrant loan associations.Footnote ⁹ The high cost of land in urban centers meant that landlords needed to keep apartments filled with rent-paying tenants, swiftly remove those who did not pay, and use the civil courts to obtain cash judgments against renters that could be enforced through wage garnishment.

Meanwhile, 1,000 miles south in Dougherty County, Georgia, sociologist W.E.B. Du Bois traveled through a land cursed with a “pall of debt,” where “the merchants are in debt to the wholesalers, the planters are in debt to the merchants, the tenants owe the planters, and laborers bow and bend beneath the burden of it all.”Footnote ¹⁰ These debts began with merchants, who executed chattel mortgages on the wagons and mules of African American tenant farmers; obtained liens on the crop “as soon as the green cotton-leaves appear above the ground;” issued weekly “rations” at high interest to tenants along with small loans for the doctor, the druggist, and the blacksmith; and encouraged renters to buy buggies they could not afford in years of high cotton prices. “The security offered for such transactions—a crop and a chattel mortgage—may at first seem slight,” Du Bois wrote, and merchants still complained “of cotton picked at night, mules disappearing, and tenants absconding.” Nevertheless, through the “bonds of law,” merchants and landowners had left the county's black majority with few options besides “pauperism and crime,” as they controlled the crop during the season and subtracted most of renters’ share of the harvest for rent and supplies, leaving a little, “if, as sometimes happens,” to give “to the black serf for his Christmas celebration.”Footnote ¹¹ Through the crop lien and the chattel mortgage, rural tenancies were risky and often miserable ventures. Tenants gambled their family's entire livelihoods—a year's worth of grain, a sturdy mule, or a thresher—in the hope of earning a surplus that might lead them to landed independence.

By the end of the nineteenth century, such independence seemed fleeting for urban tenement dwellers such as the Goldbergers and Southern tenant farmers and sharecroppers alike. Tenancy rates had skyrocketed from between 10 and 30% of all households between the American Revolution and the post-Civil War years to approximately 40% of farm households in parts of the Midwest, and more than 60% of them in the Deep South.Footnote ¹² Nineteenth century cities became crowded with newcomers, rich and poor, many of whom were renters or boarders.

The common struggles of these unlanded households are not invisible in American historiography; however, tenancy, as a contested institution and vital center of power, remains obscure. Historians ordinarily study the rise of tenancy as a material factor in political events: the American Revolution, the Anti-Rent Movement of the 1840s, the antebellum rise of the Young America and Republican parties, Reconstruction, and Populism all had roots in the difficulties of tenants, and played out within the dynamics of race, class, and gender established by landlord–tenant relations.Footnote ¹³ Even as historians bring renewed attention to the history of capitalism, few consider tenant households a subject of independent study. Instead, historians treat tenancy as an abstract gauge of inequality and social immobility.Footnote ¹⁴

Likewise, legal academics have only scratched the surface in explaining tenancy's relevance to the histories of labor, family, and the economy. Because so much of its practice operated outside the courts, the historiography of nineteenth century American landlord–tenant law is underdeveloped.Footnote ¹⁵ During the 1970s and 1980s, writes Gerald Korngold, “landlord–tenant law captured the imagination of a generation of young lawyers, imbuing them with a belief that the law could indeed respond to new theoretical models and idealistic visions of social justice.” However, much of the historically oriented literature emerging from this radical moment was teleological, tracing the origins of the “revolution” in tenant rights of the mid-twentieth century, through which renters and their allies demanded uniform statutory protections against eviction, rent increases, and unsanitary housing.Footnote ¹⁶ Other writers mapped changes in landlord–tenant law before the 1960s through the lens of case law and treatises, but did not consider the political, social, cultural, or economic environment in which the law operated. Their articles created a static picture of landlord–tenant relations, favoring normative assumptions over description and historical analysis.Footnote ¹⁷

Historiographic focus on the twentieth century emergence of tenant rights, and the assumption by many writers that nineteenth century tenants were utterly powerless, has obscured the lived experience of the unlanded in this emergent system of capitalist social relations. Underlying (and often underwriting) the elegant Jeffersonian vision of an empire of freeholders was a baffling array of tenures belying republican simplicity and the promise of propertied equality: periodic tenancies, life tenancies, tenancies in common, subtenancies, sharecropping contracts, and share-tenancies, not to mention an endless variety of unwritten customary and extralegal forms of landholding.

The resulting landscape of property relations, then, was rarely bilateral, with tenants answering to landlords, subtenants paying rent to tenants, and family members and servants owing services to tenant heads of household. It was no simple matter to confine these multilateral relationships into a recognizable and repeatable framework that could be applied across the range of ventures—urban apartments, commercial properties, and factories; rural farms, mines, and forests—where leasing provided an expedient means of exploiting land and labor.

Uniting all these landed property relations was a central question: where was the line between the renter's autonomy—in essence, his or her ability to claim the rights and privileges of the freeholder as a property owner and citizen—and the landlord's power to enforce lease terms, control the labor of the renter and the renter's family, and collect rent by writ or force? At stake was a highly time-bound commodity, rent, whose value was secured by the renter's person, personality, and family, rather than the underlying real estate. Lessors sought swift remedies against the renter's family and things to protect their rent from vanishing with an absconding tenant.

Recreating this legal environment requires a dose of legal realism. At the level of the household, where most landlord–tenant conflicts unfolded, property was not “a relation between people and things,” it was “a relation between people.”Footnote ¹⁸ As Laura F. Edwards writes, “possession” and “ownership” meant different things in the context of nineteenth century property relations, particularly for white women and African Americans who had few formal rights. Ownership was defined by “state law, compiled in written texts and applied by professionals, which adjudicated private issues and protected the abstract rights of individuals,” while possession referred to “a social fact that has legal standing, despite its marginality within formal law,” involving “a range of contingent, often ill-defined claims established through specific, concrete circumstances, not a set of formal, legal abstractions.”Footnote ¹⁹

To extend Edwards’ point, I contend that the social fact of legal standing—whether a formal property regime or informal rights—ultimately depends on the availability of remedy. By remedy, I mean the spectrum of legal and extralegal options people within a legal culture adopt to enforce claims of right. Whereas pluralistic analysis of law can describe the distended legal landscape of overlapping jurisdictions, private fiefdoms, coercive legal rules, and customary claims that characterize a legal culture, remedy is the site where the social meaning of property becomes crystallized.Footnote ²⁰ Remedy is the nexus of law and political economy, giving a clearer window into how ordinary people claimed rights, enforced debts, demanded compensation, and commanded labor, especially for those with little substantive legal knowledge or access to formal legal channels.Footnote ²¹

Landlord–tenant relations provide a ubiquitous yet largely unexplored arena for understanding how formal and informal sources of law shaped the social relations of capitalism. As such, the shift from distress to the crop lien and chattel mortgage illustrates how contests over remedy reshaped the nature of possession and, in turn, the meaning of unlanded independence.

II. Distress in the Antebellum North

To many in early republican culture, the distress remedy was an unwelcome sign of both creeping aristocracy and the disruptions of the Market Revolution to the home and the autonomy of free laborers. As a result, opposition to distress crossed class lines. In the 1840s, New York City merchants and leaders of its Workingman's Party alike saw the distress remedy as a special privilege that robbed poor urban tenants of their meager property and cut off the payment rights of lenders and mechanics. Upstate, farm tenants on so-called perpetual leases organized an anti-rent movement to repel sheriffs trying to seize their crops and livestock. To them, their absentee landlords’ efforts to collect rents, particularly through invasive remedies such as distress, was an offense to the rights of free laborers.Footnote ²² New York abolished distress in 1846, and efforts to end the remedy gathered national momentum amid the free labor enthusiasm of the era's politics. In October 1850, for example, the Whig Party of Mercer County, New Jersey passed a platform demanding the elimination of “odious distinctions” in law, including “abolishing the right of distress for rent, and placing landholders on the same footing with other creditors.”Footnote ²³

Despite the widespread hostility to distress, it proved surprisingly immune to reform throughout the early republican period. Competing interests between landlords and tenants complicated efforts to reform leasing and the practice of distress. Diverse ownership and leasehold patterns defined the multilayered nineteenth-century urban real estate market. A tenant might be the owner of a brothel, hotel, or boardinghouse, or the renter of a room in single-family home. Wendy Gamber's study of boardinghouses suggests that “[i]n cities and many towns, people of all classes were at least as likely to be living in boardinghouses as in homes,” and many people living in homes were actually renters.Footnote ²⁴ A landlord could be the widowed proprietor of a boardinghouse or, like Trinity Church, the holder of ground rents to much of lower Manhattan.Footnote ²⁵

Given this variety, distress aided a broad class of property managers. Urban landlords were often actually subtenants who managed rental properties and had to collect enough rent to pay their own landlords and earn a marginal profit.Footnote ²⁶ As a result, some tenants fought to preserve distress, such as boardinghouse keepers who rented rooms and needed an expeditious remedy for defaulting boarders,Footnote ²⁷ and used the remedy even where it was illegal.Footnote ²⁸ To prevent tenants from absconding or using their meager resources to settle their debts with other creditors, landlords enjoyed the right under the common law distress remedy to seize enough tenant property to cover the rent.Footnote ²⁹

Antebellum legal commentators defended the adoption of this ancient rural remedy and its expansion into the new business of urban tenancy, with little consideration of the complexities behind its enforcement. Chancellor James Kent, a towering figure in the creation of New York's post-Revolutionary legal system, believed that without the threat of seizure, tenants would not pay their rent on time, hindering investment by “moneyed men” who lacked security “against the negligence, extravagance and fraud of tenants.”Footnote ³⁰ Because the distress remedy could be applied almost immediately to secure the rent and cut other creditors in line, it was “by far the most important means in the landlord's possession for the collection of rent,” wrote John Neilson Taylor in his 1848 treatise on landlord–tenant law. Taylor considered the remedy an “efficient” way for a landlord “to secure to himself a regular return and remuneration for the tenant's occupation” through recourse to the tenant's goods.Footnote ³¹ This elite view worked its way into popular defenses of distress, such as those by newspaper editorialists who claimed that the remedy bolstered the spending power of the poor and working class. “Exempt the furniture from distraint,” wrote a Baltimore editorialist in 1824, “and a poor family will not be able to get a house to live in without giving security for the rent.”Footnote ³² Personal property, then, was to provide collateral both for the landlord's investment in housing and the tenant's debt to the landlord.

The central mediator of this poor man's bankruptcy was the judicial officer. American state laws required landlords to call upon judicial officers, such as marshals, bailiffs, and constables, to seize their tenant's goods.Footnote ³³ Once authorized, the landlord's judicial officer had the right to enter the tenant's premises (only during the daylight, and, technically, only through unbarred doors and windows),Footnote ³⁴ make an inventory of goods adequate to cover the rent, seize and impound the property, and hire appraisers to value the goods.Footnote ³⁵

When the judicial officer came knocking on the door, tenants and their allies commonly negotiated with the landlord to stop the seizure. This bargaining was similar to the way that other debtors avoided losing their property when facing bankruptcy in the roiling antebellum credit system. Sometimes the landlord, fearing a total loss, would promise to forestall distress in exchange for some token of good faith, or he would arrange for a surety (often a relative, employer, or prominent citizen) to stand for the rent. If these interventions failed, officers would “expose” the tenant's goods to sale, either at a remote auction site or on the premises.

Tenants responded to the threat and practice of distress through extralegal remedies, political interventions, and in court, through procedural and substantive challenges. With the exception of the rural anti-rent protests in the upper Hudson Valley, Northern tenants did not come together as a class to oppose landlord power; rather, tenants protest consisted most often of individual decisions to move or escape with rent unpaid, actions that, in Elizabeth Blackmar's words, “undermined the predictability of (and on some occasions limited the level of) profit that could be extracted from housing.”Footnote ³⁶

A cat-and-mouse game unfolded over the course of many distress actions. Although New York law did not require landlords to give notice of distress to their tenants until after the seizure,Footnote ³⁷ anticipating the process was not difficult as the end of the lease term approached, and a defaulting tenant could defend his or her property in various ways. Some resisted with violence. In the 1840s, upstate rentier landlords employed distress to take the property of tenant farmers who refused to pay rents that had been customarily waived. Farmers dressed in Native American costume attacked sheriffs who attempted to seize their property.Footnote ³⁸ A New York City tenant “met his landlord and the constable at the door with a carving knife” in 1845 to resist distress.Footnote ³⁹

More commonly, tenants hid their goods before or during the distress. Some transferred ownership to a third party, often another creditor. New York lawmakers imposed serious penalties on tenants and anyone who knowingly assisted a tenant in concealing or removing goods from distraint, levying a penalty double the value of those goods.Footnote ⁴⁰ Under the laws of some states, a tenant might avoid distress simply by locking up his or her goods, although if the lock happened to be broken by a passing vandal or thief, then no law stopped the landlord from legally seizing the tenant's goods. The Maryland Court of Appeals held that a landlord could not legally break open the lock on a shed where the tenant had hid his tobacco from distress, although it noted that if the lock was “forcibly broken open by a person not acting under the authority, or sanction, or at the instance of the landlord, or his bailiff,” then the landlord could take advantage of the opening to seize his tenant's goods.Footnote ⁴¹

Locks were no barrier to New York landlords, who enjoyed the extraordinary remedy of breaking and entering private property to collect back rents. They could apply for a search warrant from a justice of the peace to hunt for goods “kept in any house, out-house, or other place, for the purpose of preventing their being seized as a distress for rent,” Acting under warrant, the landlord's officer was not bound by traditional common law rules limiting his access to locked spaces, and “if need be,” he was empowered “to break open such house, or any enclosed place, and to seize such goods as a distress.”Footnote ⁴² The practice was common enough that legal commentators included blank search warrants in the back of their treatises for landlords pursuing fraudulently removed goods.Footnote ⁴³ New York's provision was modeled on English law. Similar policies became part of the distress law of other states, including Mississippi, Virginia, West Virginia, and New Jersey.Footnote ⁴⁴ New York landlords risked little when they used search warrants to break into people's homes. In the District of Columbia, for example, the landlord would be deemed a trespasser if he obtained a search warrant that failed to turn up any “fraudulently and clandestinely removed” chattels.Footnote ⁴⁵ New York law did not make this presumption.

When landlords did seize personal property, tenants fought distress in court, bringing actions for replevin, trespass, and irregular or excessive distress.Footnote ⁴⁶ The existence of such legal remedies served as an acknowledgement of how shelter was not like other commodities in the antebellum city. When landlords used distress, they opened their tenants’ lives to public scrutiny and degraded their efforts to build a separation between home and market. New York lawmakers tried to reinforce this separation through homestead exemptions.Footnote ⁴⁷ An 1815 New York law exempted ten sheep (with their fleece), one cow, two pigs (with their pork), “all necessary wearing apparel and bedding, necessary cooking utensils; one table, six chairs, six knives and forks, six plates, and six tea cups and saucers” from distress, offering the poor clothes, milk, and a measure of domestic comfort.Footnote ⁴⁸ These exemptions gradually expanded, and in 1842, New York's legislature created an exemption allowing tenants to protect $150 worth of goods from distraint.Footnote ⁴⁹ To further protect households from ruin, lawmakers made these exemptions unwaivable.Footnote ⁵⁰

After the Revolution, Americans reformed distress to fit within the boundaries of due process, and it became an important, if at times volatile, way to finance housing construction in booming nineteenth century cities. By the middle of the nineteenth century, urban landlords increasingly relied on newly passed summary process statutes to quickly remove tenants who did not pay the rent, rather than relying on distress, a remedy likely to trigger absconding, violence, or legal challenge.

III. Crop Liens

In 1864, New Jersey sharecropper Abraham Guest's efforts to claim the status of “tenant” challenged a novel system of share-renting that was changing the way landlords and tenants financed and operated agricultural relationships. His case anticipated a conflict that would prove central just a few years later to the terms of emancipation in the South and the creation of an agricultural empire in the West. The distress remedy had already shown itself to be an unreliable source of compensation when urban tenants failed to pay the rent. Mid-nineteenth century tenement landlords increasingly turned to summary remedies for rent collection to obtain money judgments against delinquent tenants, rather than chase down absconded personal property of little value. In the countryside, however, landlords could still depend on distress to gather valuable chattels—livestock, grain, and agricultural implements—in lieu of unpaid rent. However, as the following case of Guest v. Opdyke suggests, landlords had the chance to institute a more rigorous system of control by reshaping the nature of their relationships with renters. By hiring farmers on shares, landlords had the legal authority to claim an ownership interest in the crop as it was being grown, and did not have to wait until after the rent was due to seize it. Sharecropping, then, was not a unique product of emancipation, but had developed as a model for distributing risks among landowners, entrepreneurial tenants, and landless Northern farmers before the war.

In April 1860, Abraham Guest, a white farmer from Somerset County, made an oral agreement to work on shares for two tenants, Peter Gulick and Charles Bodine.Footnote ⁵¹ The tenants rented land from a landlord named John Opdyke. Guest's wife, two children, and a farm laborer shared a home next to the family of one of these tenants, Peter Gulick. Gulick did not own land, but he did own $1300 in personal property, making him more than twice as wealthy as Guest, who held approximately $600 in goods.Footnote ⁵² The tenants agreed to furnish Guest with seeds and work animals to grow, gather, and thresh a harvest of wheat and rye. After the harvest, the tenants and Guest would divide the grain by the bushel, and each would keep half.

Tenants Gulick and Bodine did not pay their rent when it came due next April. In July 1861, the landlord served written notice on Abraham Guest not to remove the grain because the tenants owed him $216 in rent. Then, Opdyke obtained a distress warrant ordering the constable to seize the grain in the sheaf and sell it. New Jersey law had expanded the traditional scope of distress beyond its English common law roots. Not only could landlords seize “any hogs, horses, cattle, or stock” belonging to the tenant that grazed on the land, they now could take any wheat or produce “growing or being” on the rented land, which was “an amplification of its English prototype.” After Opdyke's constable took the grain, Guest sued Opdyke to recover one half of its value and won. Guest seems to have argued that his landlords were Gulick and Bodine, not Opdyke. He had no lease with Gulick and Bodine's landlord, giving Opdyke no right to seize Guest's share of the crop.

In the depths of the Civil War, the landlord, Opdyke, appealed to the New Jersey Court of Errors and Appeals, where he found a court sympathetic to the needs of the landed. Guest, the court emphatically stated, was not a tenant of Gulick and Bodine, but something altogether different, a “tenant in common” who held a joint and undivided interest in the crop with them before division. Finding otherwise “would be attended with much inconvenience, if not positive mischief.” The court explained that “[l]andlords are induced to put out their farms, in this mode, to tenants who are poor, relying, as they imagine, on the certainty that their share of the produce cannot be diverted nor in anywise encumbered.” If the holder of a “complete lease” did not pay his rent—tenants like Gulick and Bodine—the landlord had to rely on distress to capture whatever non-exempt assets were left on the land; by contrast, “tenants in common” working land on shares could not take the crops off the land without first settling up with the landlord or the tenant they worked for.

Unlike a traditional tenant, Guest did not own the crops he grew, and he could not claim any of the homestead exemptions that New Jersey legislators passed in 1851 to mitigate the harshness of the landlord's distress remedy.Footnote ⁵³ To save them “from being stripped of the actual necessaries of life by force of legal process,” the tenants that Guest worked for could claim up to $200 in personal property that the landlord could not take as rent. As a “tenant in common,” Guest was a third party to the landlord–tenant relationship defined by New Jersey law, leaving him with no entitlement to save what amounted to a third of his household's property from the constable's grasp.

This form of security became known as the “crop lien.” By 1920, more than half of the American states, along with the Philippines, Puerto Rico, the District of Columbia, and Quebec, enacted statutes giving landlords an interest in the crops their renters grew to raise capital.Footnote ⁵⁴ By mortgaging the output of the tenants’ production, rather than the land itself, labor generated its own capital resources and the landlord did not have to mortgage his own land to finance the operation.Footnote ⁵⁵ In the South, this transformation shifted the source of agricultural credit in an even more revolutionary way, from the human beings that grew the crops to the cotton, corn, and tobacco they produced. Crop liens also promised to reinforce the power of landlords to control the credit relationships between tenants and third parties, whether they were “tenants in common” such as Abraham Guest, or merchants supplying mules and fertilizer.

Southern crop lien laws may have been modeled on Northern agricultural practices; however, they diverged in a significant way from antebellum precedents. In North Carolina, for example, the editors of the state Democratic Party's newspaper, the Raleigh News & Observer, claimed in 1880 that the crop lien laws were “imported into North Carolina from Ohio by Judge [Albion] Tourgee, and are found substantially in the laws of nearly all the States of the Union.”Footnote ⁵⁶ Albion Tourgée was a veteran of the Union Army who moved to North Carolina after the war and became a Republican politician, judge, and outspoken advocate for extending equal civic and economic rights to the freedpeople. The editors were correct in identifying the rough parallels between Northern tenancy law and the Reconstruction-era crop lien, but they ignored a critical difference. Sharecropping existed in the antebellum North and West; however, courts in those states deemed croppers to be “tenants in common in the crops” who owned an undivided share in the crop being grown. By contrast, the landlord owned the entire crop under most Southern crop lien laws, and the croppers did not receive their share of the product until after their rent and advances were paid.Footnote ⁵⁷

The postwar crop lien laws were designed to promote agricultural development by allowing creditors to claim the growing crop as a security interest. In the immediate aftermath of emancipation, this demand for credit was acute; former slaveholders, who generally had no desire to sell their land to the freedpeople or sign them to tenancy contracts, needed loans to purchase agricultural supplies and hire workers. Although some Republicans continued to push for land redistribution in slavery's aftermath, most conceded that “self-possession,” rather than property ownership, would both protect the freedpeople's citizenship and sustain a functioning export market in cash crops.Footnote ⁵⁸ However, because most agricultural workers did not control the means of production—land, mules, and the fertilizers necessary to draw cotton out of leached soils—they needed credit to establish independent households and grapple with the “long pay” endemic to commercial agriculture. Money only came in once a year when cash crops went to market.Footnote ⁵⁹ As one defender of crop liens wrote in 1884, this new system of credit offered “the security to which the parties themselves were powerless to provide.” By allowing future harvests to collateralize present debts, “It put the tenant in possession of those means of prosperity which ordinarily only wealth can purchase.”Footnote ⁶⁰

Writing in 1888, the North Carolina Supreme Court believed that the crop lien was “of modern origin and growth” and was required by “the multiplying wants and necessities of society.”Footnote ⁶¹ Antebellum states had competing positions on its legitimacy, which was bound up in questions fundamental to the rise of capitalist agriculture in the nineteenth century. A crop lien was a security interest in something that had no tangible existence. “Exactly on what credit is based on under the crop lien law,” wrote the editors of the agricultural journal Southern Cultivator, “it would be hard to define.”Footnote ⁶²

In the civil law tradition, mortgaging an inchoate product did not produce judicial hand-wringing about the meaning of possession or the dangerous consequences of mortgaging one's prospective labor. Landlords, according to the seventeenth century French legal scholar Jean Domat, had, by law, “the preference on the fruits that grow” on rented land to secure the rent. “For these fruits are not so much his pledge as they are his property, till he has got payment of his rent.” Furthermore, the tenant's “movables” were “engaged to the landlord of the house, and preferably to other creditors, for his security, not only of his rent, but of the other consequences of his lease; such as dilapidations” caused by the tenant.Footnote ⁶³ By contrast, many common law jurisdictions denied the validity of a mortgage grounded in an executory (unperformed) contract.Footnote ⁶⁴ The crop lien was truly an innovation in Anglo-American property law, allowing the products of the land to be encumbered without having to mortgage the land itself.Footnote ⁶⁵

A Southern judiciary that had few qualms about commodifying human labor before the war now raised concerns about recognizing property in promises. Even in an era that celebrated contractual freedom, lawmakers recognized that certain agreements should be void or voidable as a matter of public policy. Judges and politicians became particularly concerned with the crop lien system when it led white families into poverty, much like the Northern lawmakers who passed homestead exemptions protecting poor white families from distress seizures. Crop liens unleashed an alarming self-executing machinery for production and risk-taking, encouraging farmers to gamble their households into debt and become “a mere toiler for interest payments.”Footnote ⁶⁶

North Carolina Reverend R.H. Whitaker remembered how the “crap lien,” as he called it, given by farmers to local merchants, helped his neighbors buy “such things as they severely wanted” and left them “feeling highly elated” at their good credit, but at the end of the year, when debts went unpaid, “the crap lien began to draw, and it kept on drawing. It drew all the cotton and the corn, the wheat and the oats, the shucks, the hay and the fodder, the horses and the mules, the cows, the hogs and the poultry, the farm utensils and the wagons, the carriage and the buggy.” If the debt was still unsatisfied, creditors could enter the home, seizing furniture and furnishings, “the table, the plates and the dishes, the cups and the saucers, the knives and the forks, and, when it had gotten everything else, it reached for the dish rag, and wiped up the whole concern, not leaving even a grease spot.”Footnote ⁶⁷

For all of the risk associated with creating property in the promise of human labor, the crop lien was often defended as a facilitator of household independence, or a kind of quasi-proprietorship short of landed freedom. Without the lien, the Raleigh News & Observer claimed in 1892, landlords would not agree to tenancy contracts, and all agricultural workers would become mere laborers under their watch, creating a system of “serfdom” along Russian lines.Footnote ⁶⁸ However, the crop lien created a payment system in which the tenant or sharecropper's household economy depended on speculation; as Georgia farmer J.H. Hale told a congressional inquiry in 1900, the farmer “is tempted to plant more than he ought, that is, more than he has ability to pay.”Footnote ⁶⁹ Renters applied to their landlords for advances throughout the year, and all of these debts were subtracted from their final settlement after the crop was divided. Contrast this long bet with the assurance (such as it was) that industrial wage laborers enjoyed of weekly or monthly cash payments. Creating a household based on the temptation of an annual, lump-sum payment seemed comparatively unstable and generative of deviance, from the burst of spending that accompanied having cash in hand, to the often highly racialized dangers of “idleness” associated with the slack periods between seasonal labor demands. But the imperative for credit in an era of deflation was undeniable, and between 1867 and 1920, state legislatures across rural America adopted the crop lien one by one. The judiciary deferred to their authority.Footnote ⁷⁰

By the late nineteenth century, agricultural landlords in most commodity crop regions of the United States had lobbied for and secured a lien on the cotton, tobacco, and grain grown by their tenants and sharecroppers under the lease. Courts that otherwise hesitated to recognize this form of inchoate security overcame their scruples in light of the perennial credit crisis facing commercial agriculture. The crop lien gave the landlord a property interest in the growing crop at the commencement of the lease, making it a far more powerful remedy than distress, which only allowed the landlord to seize tenant property after a default. But a new security interest, the chattel mortgage, would soon challenge the crop lien's preeminence and raise questions about the meaning of land ownership as a source of authority.

IV. Promiscuous Liens

From the start of the crop lien system, landlords had to compete with a variety of statutory liens fending for pre-eminence in the labor and property produced by tenants and sharecroppers. In most states, laborers and mechanics, including farm workers, could claim a lien on the product of their labor, whether it was the construction of a livery stable or ten bushels of corn. They did so by filing paperwork in the county court that encumbered the real estate or chattel with a lien that had to be paid off before the owner could sell the property.Footnote ⁷¹ For example, farm workers who used a landowner's threshers to gather bonanza wheat harvests had the power to file liens on the machinery itself to secure their wages.Footnote ⁷² To encourage development, legislatures awarded irrigation interests superpriorities over landlords in arid states such as Texas.Footnote ⁷³

The most important rival to the landlord's lien for rent was the chattel mortgage. Just as they disfavored the crop lien, common law judges were troubled by mortgages of personal property, suspecting them to be vehicles for fraud, because the borrower retained possession of the property under mortgage. For example, a lender might loan money to a borrower under the belief that he could use the borrower's horse and buggy as collateral for the loan, only to later find out that the borrower had given a “nonpossessory” interest in the team to a third party.Footnote ⁷⁴ By the 1830s, states had passed chattel mortgage recording acts to clear up this confusion, making a creditor responsible for publicly filing his chattel mortgage in order to assert priority over other creditors. As discussed, chattel mortgages collateralized lending by merchants and manufacturers in the antebellum North, and were fundamental to the antebellum Southern economy. Chattel mortgages on human beings were effectively the basis for much of the region's circulating currency.

In the postbellum South, along with much of the rest of late-nineteenth century rural America, mortgages of personal property again became a fundamental source of credit. Merchants would acquire an interest in a farmer's personal property to secure a loan. Mules and heavy equipment made good collateral. Alternatively, merchants sold products to farmers through purchase-money mortgages, creating a payment schedule through which the farmer could become the free-and-clear owner of the goods.

In the context of landlord–tenant relationships, chattel mortgages presented opportunities and risks for landowners and renters alike. Commodity agriculture required fertilizer, horses, and mules, and a variety of equipment, from the humble hoe, harness, and plow to oil-powered tractors, harvesters, binders, and threshers. Landlords could either risk their own credit by furnishing tenants with these inputs—and many of the most powerful landlords in the South, Midwest, and Far West profited handsomely from the high prices charged “on time” at their commissaries—or they could assign a portion of their interest in the crop to merchants. Unlike the distress remedy, which only a landlord could use, crop liens and chattel mortgages were transferable property interests unshackled to the land itself. Merchants could become possessors in the crop when landlords assigned them the crop lien, and they took on added security through chattel mortgages, a nonpossessory interest in the things that they sold to tenants.

Chattel mortgages often meant the difference between independence and peonage for white farm tenants and African American sharecroppers in the postbellum South. Renters who owned valuable chattels, such as plows, buggies, and mules, could mortgage the value of that property to merchants to obtain loans of cash. With money in hand, renters bought goods at a significant cash discount, avoiding the high interest rates given to propertyless tenants, croppers, and hired hands. Conversely, renters without personal property could purchase agricultural supplies and work animals by giving the seller a chattel mortgage in the goods. Merchants willing to take this risk gave some poor farmers the productive property they needed to move from hired hand to sharecropper. Unlanded farmers who owned mules and plows and had the resources to support a labor force could obtain leases on more favorable terms than those who depended on the landlord to furnish them.

Historians continue to debate the importance of chattel mortgages to tenancy and sharecropping arrangements.Footnote ⁷⁵ It is true that the landlord's priority lien over all of a tenant's personal property, and, to the extent it was enforceable in a racist judicial system, the laborer's lien, stood in the way of a merchant's right to collect these debts.

Consider the mule, however. Mules proved an effective basis for chattel mortgages because of their utility. Mules were critical to running a plow, but they also performed a range of other cash-generating activities, from carrying crops and truck to market to providing the horsepower needed to drag logs to sawmills. Not only would there always be demand for a reliable mule, but the animals were also known for their toughness at the plow, resistance to disease and the elements, and ability to subsist on less costly feed than horses.Footnote ⁷⁶ As a productive and durable chattel, a speculative pursuit, and a living creature that demanded maintenance, mules powered tenant agriculture and provided a source of capital that renters and merchants drew upon to build commercial relations that could stand apart from the landlord's lien. Sharon Ann Holt has shown how tobacco sharecroppers climbed the property ladder through chattel property, rather than land ownership, using the accumulation of livestock to store wealth.Footnote ⁷⁷

Although they liberalized credit and freed some tenants from their landlord's grip, chattel mortgages posed tremendous risk. Many borrowers were illiterate, and gave their assent to these agreements with an “x” without being able to read what they had signed away. Critics pointed to the potential for abuse behind this custom. “How many liens have been recorded in the county clerk's office,” Charles Otken asked in his 1894 polemic, The Ills of the South, “whose fatal cross mark was never made by a black hand?”Footnote ⁷⁸ The chattel mortgage system also undermined efforts by postbellum lawmakers to shield households from ruin through homestead exemptions more expansive than the older exemptions protecting the poor from distress seizures. Unsecured lenders often refused to provide chattel mortgages unless borrowers waived the homestead exemption, risking the limited independence that owning chattel and real property might bestow on tenants, croppers, and yeoman farmers.Footnote ⁷⁹

Along with potentially bankrupting households, chattel mortgages put unlettered borrowers at risk of arrest. At times, unscrupulous lenders defrauded debtors. In his autobiography, Ned Cobb recalls how a merchant-planter, Lloyd Albee, entrapped Cobb's father, Haynes Shaw, for selling a mortgaged cow. Shaw owned six cows, and wanted to sell one of them. When Shaw came to Albee to get permission to sell the cow—Albee, like most furnishing merchants, held a mortgage on the cattle to secure his debtor's payment—the merchant gave him an oral promise that he could sell it. Shaw sold the cow and gave Albee the proceeds. Albee then arrested Shaw, claiming that his debtor had sold the cow without his written permission. Locked up in Beaufort, Alabama, on fraudulent charges, Shaw agreed to a landlord's offer to “buy” him out of jail and work on his farm without “knowin definitely what he was agreein to”: that he was taking the place of a sharecropper whom the landlord had murdered a year before.Footnote ⁸⁰

More often, borrowers “consumed” the mortgaged property out of desperation, subjecting themselves to potential criminal charges. “While it is generally understood that men can't be imprisoned for debt,” a farmer from North Carolina's Stokes County explained in 1893, “I think I can give several instances in which men have been imprisoned for debt for fertilizers to raise tobacco when the tobacco didn't bring enough money to pay for fertilizer used under it, but having given a mortgage on the grain crops, necessity and hunger compelled them to use it, and they were prosecuted for using mortgaged property.”Footnote ⁸¹

As the distress remedy declined in power, two security interests backed by property seizure—the statutory lien and the chattel mortgage—increasingly entered the relations between landlords and tenants in rural America. By the end of the nineteenth century, few agricultural tenancy relationships formed without one of these security interests serving as a protection for the landlord, the tenant, the merchant who loaned agricultural supplies, the water company that irrigated the rented soil, or the laborers who picked crops or operated farm machinery. With so many people claiming a legal right to the tenant's labor and property, “priority” was never a certain matter.