When asked why he did not read over the loan documents before signing them, John Doherty explained: “I was anxious to get the money, I didn't bother about it.” In February 1910, the twenty-three-year-old railroad clerk walked into the offices of the Chesterkirk Company, a loan-sharking operation with offices in lower Manhattan. He was looking to borrow some money. Repayment was guaranteed by the only security Doherty had to offer: his prospective wages and, in his words, his “reputation.” After a brief investigation of Doherty's creditworthiness, the loan was approved. The office manager placed a cross in lead pencil at the bottom of a lengthy form and Doherty signed where indicated. He received $34.85 in exchange for his promise to repay the loan principal plus $10.15 in combined fees and interest in three months. The interest charged was significantly greater than the 6 percent per year allowed in New York State. Doherty's effective annualized interest rate, including fees, was over 100 percent.Footnote 1
By the early twentieth century, small loans secured by a lien on the borrower's future wages, or “salary loans,” had become a common source of credit for urban working-class laborers. One 1908 study concluded that there were at least thirty known salary lenders operating in New York City, and likely many others whose presence could not be ascertained because they did not advertise publicly. Anecdotal evidence confirms that the number of workers who patronized salary lenders was quite high, at least in certain trades. One transportation company employee in New York City estimated that at least 90 percent of his coworkers had taken out salary loans. Of course, salary lenders were by no means the only game in town. Chattel lenders, who made loans secured by a lien on the borrower's household goods, as well as pawnbrokers, who had been providing credit to poor borrowers for centuries, also operated in New York City.Footnote 2
Early efforts to regulate small-scale lending failed to halt its spread or prevent high interest charges. New York State strongly discouraged salary lending by capping the interest rate on salary loans at 6 percent and imposing additional procedural requirements on lenders. These regulations made it difficult for lenders of small sums to turn a profit, but did not eliminate the business in New York. Demand for loans was high and, if the usury laws could be evaded, the business was profitable. The small loan business, therefore, operated in a shadow zone, outside the bounds of state and local law.Footnote 3
Yet loan sharks, as chattel and salary lenders were often called, could not escape the watchful eyes of progressive reformers. The explosive growth of the small-scale lending industry and the mounting debt burden it placed on poor borrowers captured the attention of reformers concerned with urban poverty. Social reformers nationwide actively debated the problem and experimented with a range of solutions, from lending by philanthropic loan organizations and employer savings and loan associations to education and legal reform.Footnote 4 In the process, the lending industry emerged as an arena of conflict in which the interests of debtors, creditors, reformers, and judges vied for dominance. Much more than the fate New York's usury laws was at stake. To understand the political economy of credit for the poor, reformers had to grapple with larger issues such as the causes of the poverty in industrial cities, the nature of twentieth-century American capitalism, and the limits of charity and freedom of contract. Most importantly, in considering the desirability and constitutionality of regulating private economic decision making, they had to consider the proper relationship between the state and the market.Footnote 5
Unlike their fellow progressives who battled the employers of child labor and producers of impure food and drugs, lending reformers were wary of heightened governmental interference in the marketplace. Reformers did not believe that tighter regulation of interest rates could tame the loan market or shield borrowers and lenders from the laws of supply and demand. The anti-loan shark campaign confronted an industry in which problems persisted despite strict usury regulations, some dating back to the colonial era. Instead of increased state involvement, the campaign sought to solve the credit problems of the poor by drawing more capitalists into the small-scale loan market and rallying large corporate employers to the cause. Borrowers would be better protected from exploitation, reformers reasoned, by fostering competition among lenders in the marketplace, rather than by creating new regulations to be enforced by borrowers in court. Reformers also called upon private corporate employers to police the lending industry by refusing requests from loan sharks to collect usurious interest from borrowers' wages.Footnote 6
The campaign against the “loan shark evil” thus highlights the limits of progressive statism. The ideology of progressive reformers, dubbed “Progressivism,” has been characterized by its support of government intervention through regulation and opposition to an ideology of laissez-faire free-market individualism.Footnote 7 Yet, lending reformers envisioned a relationship between the state and the lending industry that challenges, in some respects, the classic narrative about reformers in this period. In New York and nationwide, the anti-loan shark campaign advocated measures to foster market-based competition with the sharks, such as by forming remedial loan societies and raising interest rate ceilings to entice more capital into the market. The New York Charity Organization Society, for example, offered loans to would-be charity recipients in lieu of or in addition to providing cash and in-kind relief. By providing poor relief applicants with interest-free loans, the Society reasoned, it would steal customers from the loan sharks and drive the bad actors out of business. The Society also encouraged the recently formed Russell Sage Foundation to study the lending industry and corresponded regularly with Foundation leaders during the early years of the anti-loan shark campaign, referring cases back and forth.Footnote 8
The Foundation became the pre-eminent advocate of remedial lending and of raising interest rate caps on small lenders to encourage legitimate businesspeople with “honest capital” to enter the small loan business. It argued that a “legislative remedy lies not in the passage of further restrictive laws but in the enactment of measures allowing a sufficient rate of interest to attract the capital of reputable men to the business, thus affording the competition necessary to keep profits within reasonable limits.” One Sage Foundation official scoffed at the foreign governments that “attempted to regulate the business by making it a governmental monopoly.” He noted with pride that in America, “under our individualistic form of government such regulation has not been attempted.” Instead of more rigid governmental controls on interest rates, reformers embraced market mechanisms to curb the abuses of the small-scale lending industry. In this way, small-scale lending reformers had much in common with antitrust advocates who opposed strong judicial intervention against restraints of trade, but embraced limited regulation to clear the market of business combinations that sought to suppress competition. Theirs was not an expansive vision of state involvement in private economic relationships.Footnote 9
The outlook of the lending reform movement resonated with the jurisprudential philosophy of the age, which was skeptical of judicial and legislative interference with privately negotiated economic arrangements. As celebrated jurist Oliver Wendell Holmes explained in 1901, “[c]ourts are less and less disposed to interfere with parties making such contracts as they choose, so long as they interfere with no one's welfare but their own.” At this time, the common law of contracts disfavored judicial tampering with private bargains as against “public policy.” Going a step further, turn-of-the-century courts imported the common law presumption in favor of enforcing contracts into constitutional law, recognizing a fundamental right against legislative interference with individual “liberty of contract.” The paradigmatic case illustrating this legal philosophy is Lochner v. New York, in which the Supreme Court dealt a blow to governmental efforts to regulate the weekly working hours of bakers in the name of defending contractual freedom. In Lochner, the Court overturned a New York law that limited bakers' hours on the grounds that the law was an “unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” According to Lochner and its progeny, individual economic rights could not be infringed except in the interest of the health, welfare, or safety of the public. The power to determine whether a regulation was in the public interest, policing the line between that which could be regulated (the public) and that which could not (the private), fell to the courts.Footnote 10
Borrowers were not the same as bakers, of course. There was a long tradition of the state protecting borrowers from unscrupulous lenders; usury laws, guarding against excess interest charges, number among the oldest forms of economic regulation. When providing examples of “ancient” laws that evidenced the long history of governmental interference with liberty of contract, Justice Holmes cited usury laws and Sunday laws in his Lochner dissent. No court dreamed of voiding interest rate caps entirely. Rather, judicial discretion came into play in how courts construed loan agreements, the reach of common law contract defenses, and regulations related to disclosures and lender licensing. Judges' decisions in small-scale debt collection cases reveal the state in action, puzzling over how to balance protectionism and paternalism, the limits of freedom of contract, and the legality of regulating private economic decision making.Footnote 11
The life stories of working-class borrowers who became indebted for small sums of money, to charitable institutions or loan sharks, are at the center of this history. The Borrower's Tale draws on archival material from a variety of sources—the casework records of the New York Charity Organization Society, New York State civil and criminal case files, and the records of the Russell Sage Foundation's Department of Remedial Loans—to follow poor New Yorkers as they crossed institutional boundaries, seeking money to make ends meet. These records describe more powerfully than aggregated data and statistics ever could the constraints and compulsions under which borrowers exercised their “freedom of contract.” They detail the political and economic forces that shaped the credit decisions of poor families, revealing the links between household economy and political economy.Footnote 12
This study adds to the recent scholarship on Progressivism in practice—fine-grained, place-based studies of reform at the local level—but focuses closely on the relationships among reformers, industry, and the law that an earlier generation of historians studied at the national level and outlined in broad brushstrokes.Footnote 13 This study also builds upon the creditor-centered work of historians such as Mark H. Haller and John V. Alviti, but moves beyond their reliance upon distinctions and categories, such as those separating profit-making credit providers from philanthropic credit providers, which were less important to borrowers than they have been for historians. In focusing primarily on the lived experience of poor borrowers, this article imports into the study of household credit relationships an approach mapped out by several historians of social welfare policy and institutions, who have attempted to reorient the institution-centered historiography of social welfare to give greater weight to the perspectives of welfare recipients. This study attempts to correct a similar imbalance in the historiography of household credit relationships.Footnote 14
The value of viewing the history of credit through the lived experiences of working-class households is not solely in documenting the human dignity and agency of poor borrowers, although this is certainly one of the goals of this study. Rather, by looking at credit relationships from the borrower's point of view, a number of different institutions, groups, and policies that borrowers experienced as simultaneous and overlapping, but that historians have usually studied separately from one another, are brought into the same analytic frame. Thus, in contrast to prior work, this study treats charitable and for-profit lenders to the poor together as participants in the same market for working-class credit. The debtors' stories presented here show how impoverished families organized their financial lives, made ends meet, and employed borrowing as a survival strategy.Footnote 15
I. Life on the Margins: Two Borrowers' Stories
Many working-class men and women in early twentieth-century American cities had reason to borrow small sums and access to some form of credit.Footnote 16 By the turn of the century, major structural changes in domestic and economic life had caused working-class households' financial emergencies to become more frequent and more devastating. Urban laborers' reliance on wages as a primary or sole source of income rendered the hardship caused by a sudden loss of employment especially acute, while seasonal layoffs and the higher risk of injury in industrial work increased the likelihood of unexpected loss of the means of self-support. Salary loans were a viable business for lenders beginning in the late nineteenth century because of the concentration of demand for small-scale credit in urban centers and the rise of a class of salaried, industrial workers whose future income could serve as collateral. Just as the demand for credit was elevated by the risks of urban, industrial life, the characteristics of an urbanized and industrialized workforce encouraged the expansion and proliferation of small-scale lending operations.Footnote 17
This history of working-class borrowing begins with two case studies that illustrate the conditions under which borrowers exercised their “freedom of contract.” The two debtors whose stories are presented here, one who borrowed from a loan shark and the other from the New York Charity Organization Society, entered the market for working-class credit at different points. The creditors from whom they borrowed engaged in different lending practices and served different, although sometimes overlapping, sections of the New York working class. Because these two lenders operated in separate sectors of the same credit market and each left behind business records that are incomplete in different ways, each borrower's story enriches the other, creating an overall deeper and more textured picture of working-class credit relationships in Progressive-era New York City.
Both borrowers lived and worked in New York City, the epicenter of the battle over lending to the working class. Although New York cannot be considered typical, the differences between New York and other urban centers are more a matter of scale than of kind. New York City's large size and the significant number of large corporate employers and social reform organizations located there made the credit problems of the working class both more apparent and more urgent than in other cities. However, loan sharks and the organizations that opposed them were active in small and large cities across the Northeast and Midwest.Footnote 18
Common themes emerge from these two stories, but neither can be considered representative. The variety of these borrowers' approaches and results underscores the multiplicity of individual experiences that cannot be captured in a single case study. Poor people employed an array of methods to ensure that they and their families had the necessities to survive, such as adequate food, housing, clothing, and medical care. Although these case studies do not tell us how many borrowers used certain types of credit or patronized particular lenders, their experiences illustrate some of the survival strategies of working-class households.
John Doherty
We do not know why John Doherty was in need of a loan in February 1910. Doherty earned a decent wage of $70 per month as a clerk for the Erie Railroad, where his older brother, James, also worked. He had no known involvement with public or private charity. He lived with his parents and younger brother, whom he and James supported with their earnings. Doherty had attended school at least through his fourteenth birthday, before joining the workforce. The family's finances were sufficiently stable that Doherty's youngest brother, George, sixteen, could go to school full time.Footnote 19
Assuming Doherty and his brother James earned roughly equivalent salaries, the income for Doherty's family of five would have been approximately $1680 per year. This sum is higher than most estimates of the cost of living for a family of five in New York City at this time. Unexpected expenses, however, were frequently a cause for borrowing among workingmen's families. Sickness or death in the family ranked among the most common reasons for taking out a loan. None of Doherty's household members died near this time, but a more distant family member may have died or someone may have fallen ill.Footnote 20
Although Doherty was born in New York, his father and grandparents were Irish immigrants, as were many of his neighbors. Doherty's father, a retired druggist, had emigrated to New York in the 1850s from Ireland, whereas his mother, the child of two Irish immigrants, was born in New York. In Doherty's East Side neighborhood more than 90 percent of the population was born outside the United States or had one or more parents born outside the United States. The neighborhood was overwhelmingly of white, European descent. Austrians and Irish dominated. Doherty's neighbors in his building on East 58th Street reflect the immigrant and working-class character of the neighborhood. Three out of the four male household heads were foreign-born, naturalized citizens; the lone first-generation American was the son of two German immigrants. Only one of the nineteen building occupants was the child of two native-born parents. Most of Doherty's neighbors were manual laborers or clerical workers. They included a barber, a bookkeeper, a stonecutter, a fireman, a packer at a coffee mill, a dock laborer, a city patrolman, and a stenographer.Footnote 21
The population density in this part of the city was high (100–149 persons per acre), but not nearly as crowded as the Lower East Side, areas of which housed more than 600 persons per acre. In 1910, New York City's population was booming. By 1910, the city contained half of the state's population. Immigration accounted for a significant portion of the population influx. In a nation of immigrants, turn-of-the-century Manhattan was an island of immigrants: of 2.3 million Manhattan dwellers, more than 1.9 million were either foreign born or had one or more parents born outside the United States.Footnote 22
Although Doherty lived on the Upper East Side, the economic geography of his universe can be mapped onto the streets of lower Manhattan. The main offices of the Erie Railroad, Doherty's employer, were housed in the twenty-two-story Hudson Terminal Building at 50 Church Street (later demolished to make room for the World Trade Center). A block away, the lower Manhattan section of Broadway was lined with turn-of-the-century skyscrapers and was home to businesses such as the Union Telegraph Company and the New York Telephone Company. Major moneylenders also had offices in the area, where they could be patronized by the railroad brakemen, clerks, and other working men who constituted their principal customer base. Doherty's salary loan broker, the Chesterkirk Company, was located a block away from his office in the sixteen-story Mail and Express Building on the corner of Fulton Street and Broadway, near the branch office of another loan broker, D.H. Tolman. Doherty could also have easily borrowed from Buell & Company, Wells & Co., or L.G. Smith, all nearby loan offices.Footnote 23
When Doherty walked in the door of the Chesterkirk office, he spoke with the manager, Miss Jessie Dennington, whom he had met before on social occasions. Dennington wrote down Doherty's address, place of employment, length of employment, and salary. Doherty then left to wait for the verdict on his loan application. Soon after, a man from Chesterkirk arrived at the offices of Doherty's employer to inform him that his application had been approved. Doherty returned to the loan office that day and signed the required papers. As Doherty learned later, the document he signed was not a contract or promissory note agreeing to repayment of the sum borrowed. Rather, it was a blank power of attorney, a document granting the agent named in the document wide-ranging authority to conduct business in Doherty's name. Dennington later filled in the blank designating Doherty's agent with the name “Stella Blanding,” exactly as she did with all the blank powers of attorney signed that month. Stella Blanding, a resident of Maine, could then conduct the entire loan transaction in Maine, which had repealed its usury laws in the mid-nineteenth century and consequently became a safe haven for loan sharks nationwide.Footnote 24
Even if Doherty had read the document he signed, it would have made little sense to him. It began:
Whereas, I desire to have made, executed, negotiated, delivered, and sold certain notes to the aggregate amount of $90.00 or less for which I shall be responsible as maker in the City of Portland, State of Maine, without being then and there present personally, now, therefore, know all men by these presents that I have made, constituted, created and appointed, and by these presents, do make, constitute and appoint ________ of the City of Portland, State of Maine, my true and lawful authorized agent and attorney, with full power to do and perform each and every act and thing which said attorney may deem it necessary or desirable to do or perform, to the end that I may accomplish aforesaid result.Footnote 25
Doherty, of course, had no idea that he was giving such power to an unidentified resident of Portland, Maine, much less that the loan transaction would be done in Maine rather than New York City.
Other New York City borrowers also inadvertently gave power of attorney to Stella Blanding, a 27-year-old resident of Portland, Maine. Blanding was crucial to the schemes of several New York City loan brokers—Chesterkirk, Burt Brothers, and Walter Graham among them—to transact their business beyond the reach of New York's usury laws. Blanding worked for the State Trading Corporation, which operated several New York City loan offices. State Trading had no office in Maine and Blanding was its only employee in the state. Her role in each transaction, for which she was paid by State Trading, was simple: pick up the executed power-of-attorney from her Maine post office box, take it to N.W. Hasten Company, execute a series of promissory notes in the name of the borrower for a loan from N.W. Hasten Company, and mail the loaned funds to the borrower in New York.Footnote 26
In Doherty's case, the transaction worked as follows: first, Blanding arranged for the acquisition of Doherty's loan by N.W. Hasten Company of Portland, Maine. (As Doherty's agent, Blanding had a legal duty to act in his best interest. Yet, in spite of that obligation, she did not make any effort to shop around for the best possible loan terms; she only dealt with N.W. Hasten Company). Two days after Doherty visited the Chesterkirk offices in New York City, Blanding executed a note on behalf of Doherty promising to repay $45 to the N.W. Hasten Company. From N.W. Hasten she received $37, which she mailed to Doherty, minus the cost of the money order. Doherty received a money order for $36.85, which was further reduced by Chesterkirk's $2 brokerage fee.Footnote 27
April 3—the date Doherty's payment was due—came and went, but Doherty did not repay the loan. On or close to April 21, Doherty's employer, the Erie Railroad, received a demand that the railroad pay the sum of $60.50 out of Doherty's wages to make good on the debt. The demand letter was accompanied by a copy of a wage assignment executed by Doherty's attorney-in-fact, Stella Blanding, along with a list of legal citations concerning the “absolute right” of every employee to assign his wages. (This was included, it seems, just in case Doherty's employer thought of contacting a lawyer). When Erie refused the demand, the lender sued the railroad for the amount owed.Footnote 28
Mary Lafferty
By July 1903, Mary Lafferty was out of options. In May, Lafferty and her husband, John, along with their two children, had been evicted from their apartment only two months after moving there. They had paid half a month's rent and then had fallen behind. Soon, the insurance agent and other creditors came calling. After being put out of their apartment and without money for a new deposit, the family moved in with Lafferty's parents and three younger siblings. Tensions ran high as space and resources were stretched to the limit. A month later, Lafferty's husband, a waiter, left for work and failed to return. Without any means of supporting her family, Lafferty and the children leaned on her mother and brother.Footnote 29
The family budget, however, was already past the breaking point. Lafferty's mother, Sarah Boyle, did not earn enough to cover the rent, much less feed seven people, from her job as a janitor in the Bronx apartment building where they lived. To make ends meet, Boyle scraped together $2–$3 per week doing odd jobs for the building residents. One of her sons, George, worked at a dry goods store for $6 a week. Her husband, Frank, drank heavily and was not a reliable earner. By early July, Lafferty had pawned everything of value that she owned. She had tried and failed to obtain relief from her local Catholic parish. To compound her problems, her daughter, Florence, became ill. There was no food in the house. Lafferty turned to the New York Department of Public Charities for assistance, who referred her to the New York Charity Organization Society.Footnote 30
The family would become well known to the Society in the coming months. Lafferty had not previously applied for assistance, but the Boyles had a record with the agency. Like many working-class families, the Boyles had been involved from time to time with various organizations and public institutions for the poor, including the city facilities on Blackwell's Island and the Mount Loretto home for destitute children on Staten Island. Frank Boyle may have become known to the Society through its antimendicancy work with the New York Police Department's “vagrancy squad,” which arrested vagrants, beggars, and swindlers. Frank Boyle was committed for vagrancy in December 1902.Footnote 31
After the family's immediate need for food was met by 75 in relief from the Society, Lafferty enlisted the Society's help in locating her husband. He “was always a good husband,” she explained, but had “become tired” of assisting her parents and brothers. On her own initiative, Lafferty wrote to the police chiefs of Montreal and Quebec, where she believed her husband may have fled, for information on his whereabouts. On her urging, an agent of the Society's Bronx District office wrote to the police in Boston. Despite these attempts, John Lafferty was not found. In mid-July, Mary Lafferty's brother sent word of a job for her at a hotel in Saratoga, New York, but she decided to remain in the city in the hope that her husband would write to her.
By early August, Lafferty conceded that her husband would not return home and had run out of leads. Upon request, she obtained a loan from the Society of $2.50 to cover the cost of her chambermaid's uniform and passage from Troy to Saratoga. Sadly, Saratoga proved to be another disappointment. Upon arrival, she learned that her brother, “like all the rest of them,” had misled her. He had lost all of his money on the horse races and planned to leave for Connecticut the next day. He had secured neither job nor housing for her, and she was forced to go in search of both. If she had not lost her return ticket to New York, she would have left immediately. Instead, she found a hotel job that paid less than $1 a week.
With some difficulty, Mary Lafferty repaid the $2.50 borrowed from the Society, although not as promptly as promised. Along with her profuse apologies for the delay in repayment, she sent word to the Society asking whether there had been any news of her husband's whereabouts. She asked the Society agent to write to the police chief of Newport, Rhode Island for information. (This attempt was unsuccessful). She also shared news from a waiter recently arrived in Saratoga from Connecticut, who reported spotting her husband at a cafe in Hartford. Lafferty asked the Society agent to pay a visit to her parents, whose annoyance at having to care for her children in their home had escalated to threats that they would not keep the children any longer if she did not send money soon.
By September, Lafferty was back in New York, where she again enlisted the Society's help in finding her husband. She cajoled the Society agent into interviewing a few waiters and a friend of her husband on the suspicion that they might have information concerning his whereabouts. Meanwhile, she found work as a saleswoman at R.H. Macy & Co. The Society's further investigations turned up nothing. By December, Lafferty was discouraged. She swore that if her husband did not appear by Christmas, or “or at least remember his little children on that day,” then she would be “through with him forever.”
Christmas passed without any word. Five days later, however, a waiter at the Vanderbilt Hotel disclosed that John Lafferty was alive and well, living in Hartford. Armed with this news and a loan of $4 for carfare from the Society, Lafferty set out the next day for Hartford to recover her husband. According to Mary Lafferty, her husband, who was living under an assumed name, was “delighted to see her” when she knocked on his boarding house room door the following evening. She returned the $4 loan a week later, when she returned briefly to her job at Macy's while waiting for their rooms in Hartford to be prepared. The Laffertys expressed their sincere gratitude to the Society for its assistance and interest in their case and suggested that they had both learned a “good lesson.” The Society closed their case a few months later. The “cause of need” on the file was marked “Disregard of Family Ties” and “Lack of Judgement.”
II. Managing Money on the Margins: The Need for Borrowing
As these case studies illustrate, borrowing and lending played a vital role in the everyday lives of the urban working class in turn-of-the-century American cities. Families and individuals were enmeshed in a web of formal and informal credit relationships with relatives, local merchants, landlords, moneylenders, and charitable organizations. Within the span of a year, the Laffertys borrowed from family members, organized charity, their landlord, and a pawnbroker. Yet, borrowers did not create, negotiate, or terminate these relationships separately from all others. Like working, saving, or buying insurance, borrowing was just one of many survival strategies.
Few poor households could get by on a single source of income. Households cobbled together enough to survive the week from a variety of sources, which often varied from week to week. Wages were an important part of this equation. To avoid dependence on charity, friends, family members, or borrowing, families generally required at least one wage earner with steady employment. At the same time, reliance on a single wage earner was risky, given the low wages of many working-class jobs and the frequency of job loss because of poor performance, injury, or lack of work. A worker might also be put out of work because of a union strike. The most stable households, such as the Dohertys, had two steady wage earners who both worked in relatively high-paying jobs. As a result of this income, the Dohertys did not need to supplement their income through charity or the wages of the oldest or youngest household members.Footnote 32
In contrast, households without the steady income of a single breadwinner, such as Mary Lafferty's parents, needed the income of both the female household head and the oldest child to support a family. Elizabeth York, a thirty-nine-year-old native-born New Yorker and mother of four who borrowed from the Charity Organization Society, relied on her daughters' wages, supplemented by unpredictable contributions from her husband, a carpenter, and her own earnings from occasional laundering, cleaning, and other domestic work. Working male household members usually earned more than their female counterparts, who often did poorly paid, unsteady domestic work. Janitress positions, such as that eventually secured by Elizabeth York, sometimes provided only enough to reduce or cover the monthly rent. Food, clothing, and other necessities could not be purchased without additional income.Footnote 33
Monetary assistance from state or municipal sources is notably absent from most household budgets. By 1900, New York City had done away with “outdoor” poor relief, public funds disbursed directly by the government to the poor living outside institutional settings. The New Deal era social welfare programs did not yet exist and mothers' pensions would not be instituted in New York State until 1915, over the vigorous objections of private charitable organizations including the New York Charity Organization Society. State assistance was provided through institutions such as municipal clinics, almshouses, and hospitals; public funds were provided to some privately run institutions for the care of delinquent children. Families seeking public assistance had a difficult choice: keep the family together and potentially forgo help, or allow the household to be broken up by the institutionalization of its members. Mary Lafferty struggled with this choice many times, although she was able for the most part to avoid commitment of her children to public facilities.Footnote 34
Children were alternately the cause and the cure for financial hardship. All of the borrowing households in this study included three or more children, which is more or less in line with the average household size nationwide (4.8 persons). Many, such as Russian immigrant Anna Gruzinsky, who borrowed money from the Charity Organization Society beginning in 1904, lost children in their infancy. In this period, roughly one to two infants out of every ten born in New York City died before reaching the age of one year. Children who survived required food, medical care, and, often, if both parents worked outside the home, childcare. Working mothers, such as Mary Lafferty and Anna Gruzinsky, relied upon family members or charitable organizations to watch their children. A sick child could mean more medical expenses and job loss if time away from work was required to obtain medical care. Once children reached adolescence, however, they could add their wages to the household's income. Unmarried working daughters, like their fathers, were expected to turn over their pay envelopes to their mothers on payday.Footnote 35
For women with children, desertion was also a concern. Male household heads, however, did not always leave for good. Like John Lafferty, husbands often returned home after weeks or months of separation. Meanwhile, deserted wives struggled with whether they should pursue their husbands' return and monetary support through legal action. John Lafferty deserted his family multiple times during the course of their involvement with the Charity Organization Society. Slightly less than two years after the family reunited and moved to Hartford, John Lafferty went out to work in the morning and did not come back that evening or the following day. Mary Lafferty and her children returned to New York and moved back in with her mother. Mary Lafferty eventually tracked him down in Baltimore in August 1906, where he “begged her to return to him.” She was conflicted. As she explained to the Society, she did “not know whether she ought to return to him or not, as she feels she cannot trust him, but she is very much discouraged trying to support herself and the three children; she is still working at Macy's earning $7. a week.” The Laffertys eventually reunited but, four years later, Mary Lafferty again suspected that her husband was lying to her about his earnings and was putting money aside so that he could “run away again.” John Lafferty deserted the family again in January of 1914.Footnote 36
Much like husbands, household expenses were unpredictable and might vary from week to week. Housing, medical expenses, and burial costs were the most common expenses that families had to manage on short notice. An eviction notice from the landlord often caused a struggling family to seek outside assistance, through charity or a loan, to pay overdue rent or relocate. Many poor families moved frequently, although often within the same neighborhood. The Lafferty family had fifteen different addresses on record with the Society between 1903 and 1918, almost all in the Bronx. Medicine and doctors' bills could be a considerable expense. As Harry Roland, a thirty-three-year-old railroad track engineer and father of a one-year-old son, wrote to explain his inability to make any payment on his loan from the Society: “On Feby 20th my child took sick, it was necessary to have the Doctor once a day at two (200) dollars per visit and first visit cost 300 that made a total of fifteen (1500) dollars. Medicines cost on an average of fifty cents per day_ total $300 extras that had to be got say $200 total – $2000andallpaid and one half of this month's rent, therefor if sickness had not come to my house, it was my intention to send you $1500.”Footnote 37
Even when medicine failed and a family member died, the bills kept coming. Families without burial insurance would go into debt to provide an appropriate funeral for a loved one. For this reason, many poor families insisted, often against the wishes of charity workers, on maintaining insurance policies to cover family burial costs. In some cases, the importance of funeral displays led families to pay insurance premiums rather than buying food, clothing, or fuel. Insurance was so common that the Charity Organization Society included a blank on its intake form for “Insurance, Lodge or Benefit Society.” Mary Lafferty used her insurance agent as a reference on her employment application to work at Macy's, as he had been visiting the family for more than ten years.Footnote 38
Savings could also blunt the impact of emergency expenses, but few households were able to put enough money aside. Households that were able to save might weather small emergencies, but still experienced shortfalls when expenses piled up. Anna Gruzinsky had saved more than $30 by June 1906, but exhausted these savings and more after her husband purchased tools and the family moved. A loan from the Society bridged the gap between the household's expenses and resources. Harry Roland explained to the Society that he had saved $750 before he lost several months of wages because of a strike. These savings were exhausted over the course of six months from the cost of supporting the Roland family and his wife's elderly parents.Footnote 39
Families in need often looked first to local sources of credit. Family, neighbors, and friends could be sources of relief or informal loans, although ongoing assistance or unpaid loans could strain personal and familial relationships. Parents might assist their adult children with childcare, whereas the adult children, such as Mary Lafferty before her husband deserted her, might support their elderly parents financially. Neighbors and friends frequently assisted one another during difficult times, with the expectation that the favor would create a reciprocal obligation. Anna Gruzinsky's neighbor paid a visit to the Charity Organization Society on her behalf, to explain that the neighbors would take up a collection for the family if the Society committed to pay one month's rent. Author Michael Gold, in his autobiographical novel about Jewish life on New York's Lower East Side, Jews Without Money, describes how his mother would take up a collection in their building if a family was in danger of being evicted. Borrowing privileges could, of course, be abused; John Lafferty borrowed $9 from a friend with whom the Lafferty family was living on the day he disappeared in 1914, saying he was going to get new rooms. Instead, he skipped with the money.Footnote 40
Local merchants were also an important source of informal credit, sometimes provided voluntarily and sometimes unwillingly, such as when customers failed to pay their bills. The landlord, the corner grocer, the insurance salesman, the baker, the ice man, and the moving company were all potential creditors. Merchants allowed customers to purchase consumer goods “on time” or on the “installment plan,” whereby the customer would take possession of the goods and gradually pay off the purchase price through regular payment installments. Clothing, sewing machines, furniture, and even medical care could be financed in this way. The number of creditors who visited the Lafferty and York families suggests that a number of local merchants and businesspeople provided them with credit.Footnote 41
There was no uniform collection process for unpaid debts owed to local merchants. Items purchased “on time” could be repossessed if the customer missed a payment. The Laffertys had their furniture seized by the seller, the Duetch Brothers Company, after the family fell behind on its payments. Grocers and small merchants seem not to have made use of the legal system to recover unpaid debts, unlike landlords. An individual family could rack up a large debt to the landlord, but the landlord had recourse to the courts to evict nonpaying tenants. Legal action and eviction were often poor methods to collect payment, however. Eviction allowed the landlord to place a new, paying household in the rented rooms, but usually not to collect back rent. A landlord might be better off allowing a family to catch up on unpaid rent, rather than pursue a court case to terminate its tenancy.Footnote 42
Private moneylenders and the Charity Organization Society were two additional sources of credit for working-class New Yorkers. Needy families often looked to private lenders before contacting charity. Among the almost two hundred loans that the New York Charity Organization Society made from its Self-Support Loan Fund between 1903 and 1917, more than 10 percent were to pay off previously contracted debts to private moneylenders. Nonetheless, many roads led back to the Charity Organization Society. The Laffertys, the Gruzinskys, and the Yorks all first approached other organizations, which referred them to the Society. The Russell Sage Foundation also referred loan shark victims to the Society for help paying off their debts.Footnote 43
The Society viewed its lending as the antithesis of loan sharking. It charged no interest and, therefore, avoided the greatest evil of the loan shark: usury. Loan sharks and philanthropic lenders engaged in different lending practices and served distinct but overlapping sections of the working-class credit market. However, even though the Society painted private moneylenders as enemies of its cause, loan sharks and scientific charity reformers were linked through their relationships with poor borrowers and in their shared distaste for government involvement in the private realm of working-class finances.
III. The (Credit) Worthy Poor: Borrowing from Scientific Charity
Historians of Progressive-era poverty and charity have largely overlooked organized charity's campaign to reform small-scale lending and to provide loans to the poor. The literature describes charities dispensing relief, either cash or in-kind, but not making loans. In New York, however, organized charity both provided credit and supported the campaign to combat the loan shark evil. Charitable organizations across the country, including the New York Society and the New York Association for Improving the Condition of the Poor, made loans to poor borrowers. As much as 10 percent of all relief dispensed by the New York Charity Organization Society was provided in the form of credit. These credit relationships were not ancillary to the goals of organized charity, but were fundamental to its relief mission. Philanthropic or “remedial” loans allowed charity workers to exert a greater degree of control over poor people's finances and to keep charity recipients from frittering away large sums of money on excessive interest payments. (Relief, after all, did considerably less good if a large portion of the household's income went to paying usurious interest to a loan shark.)Footnote 44
The Society's move into the lending business was rooted in its longstanding anxiety about the relationship between charity and the causes of poverty and pauperism. Organized charity leaders believed that a poor person could become “pauperized”—dependent, idle, and lacking self-respect—as the result of unscientific, sentimental administration of relief. The Society therefore charged “friendly visitors,” mostly middle-class female volunteers who dropped in on poor families that requested assistance, with separating the “worthy” from the “unworthy” poor.Footnote 45 Loans, reformers believed, were a form of relief that was less likely than charity to “pauperize” recipients. Lending to the poor avoided the potentially negative effects of charity, in favor of a contractual bargain between market participants. As one lending reformer explained, lending “has not the pauperizing effect of mere charitable relief; it gives the borrower an opportunity to get himself out of his difficulties without losing his independent self-respect.”Footnote 46
The New York Society's lending began with the creation of the Provident Loan Society, a philanthropic pawnshop based on European antecedents, which was set up in 1894 to provide poor borrowers with an alternative to private pawnshops.Footnote 47 Other charity organization societies also set up pawnshops or other types of “remedial loan societies,” which banded together in 1909 to form the National Federation of Remedial Loan Associations. In addition to the pawnshop, which was run as a separate business loosely affiliated with the Society, the Society also made interest-free loans through its Self-Support Loan Fund and other general relief funds. The Society made approximately 190 loans to individual borrowers through the Self-Support Loan Fund between 1903 and 1917. Local offices also gave loans rather than grants. Of the $47,863 disbursed by the Society between March and September 1907, more than 10 percent was for loans.Footnote 48
In addition to making loans directly, the Society assisted Olivia Sage, widow of the financier Russell Sage, to screen the many “begging letters” that she received. These requests highlighted the need for alternative sources of credit for the working class. So many requests were from the victims of loan sharks that W. Frank Persons, assistant secretary of the Society, remarked on “the apparent great demand for an organized business, which would take care of this obvious need in the community, under regulated and decent auspices.” In 1907, the president of the Society assisted Olivia Sage in creating the Russell Sage Foundation, a general-purpose foundation established for “the improvement of social and living conditions in the United States.” Through its Division of Remedial Loans, the Sage Foundation became a leader in the national campaign against loan sharks. The Foundation drafted and lobbied for passage of a model Uniform Small Loan Law, which proposed a 3.5 percent monthly interest rate for small loans, well above the 6 percent annual rate allowed under New York law. By raising the legal interest rate high enough to make small-scale lending profitable, the Foundation hoped to encourage legitimate businesspeople to enter the market, increase competition, and thereby drive the loan sharks out of business. The head of the Division, Arthur Ham, also served as the secretary of the National Federation of Remedial Loan Associations.Footnote 49
Obtaining a loan from the Society was not significantly different from obtaining cash or in-kind relief. Investigation was always the first step. The Society interviewed the applicant to get information on the family composition, housing situation, and religious and national background. They also gathered information on other potential sources of relief, including relatives, insurance policies, and ties to other community organizations that might provide assistance. Applicants had little expectation of privacy in this process. The same networks upon which families relied for support could be turned against them in the investigation process. Family members, religious organizations, other charities, doctors, hospitals, neighbors, former employers, and local merchants all cooperated with the Society; only one out of dozens of files contained a refusal to go along with the Society's investigation.Footnote 50
Families judged “deserving,” “honest,” “reliable,” “worthy,” “obliging,” “honorable” or “respectable” might receive aid. Others who, in the Society's opinion, “should be self supporting” or “if left to themselves… will be able to manage,” were not helped. An applicant's gratitude and worthiness were closely linked; a sense of entitlement to assistance was frowned upon. Visitors noted when a family member “was anything but appreciative,” “proved ungrateful for assistance,” or “seemed to expect a good deal more should be done.” Some borrowers were attuned to the Society's expectations, and wisely tailored their behavior to meet them. Mary Lafferty repeatedly expressed how “grateful” she was for “all the attention and kindness shown her” and “for the interest taken by Society.” She also used the Society's resources to further her own goals, which were to track down her husband and reunite her family. When she was later in need in 1908, however, she appealed first to the New York Tribune for aid in moving rather than to the Society.Footnote 51
Most borrowers maintained a veneer of gratitude, but sometimes frustration and annoyance seeped out or exploded. Borrower Harry Roland wrote to the Society, objecting to their collection methods. “I was very much surprised,” he wrote, “to learn that you had visited certain people and told them about my indebtedness to you and that you wanted the money, and I hasten to assure you that no one wants to be out of debt quicker then the writer and I had every reason to believe that such would be the case before this, on or about the time you loaned me the sum of twenty five dollars I had to accept a temporary position at twelve dollars per week, it lasted until two (2) weeks ago last Saturday or Feby 19th.” According to the Society, the matriarch of this family was similarly “impertinent.” On one visit, she “shut the door without answering any further questions.” On another, she seemed “very much annoyed on seeing visitor, and tried to shut the door in her face. She pretended not to understand English, but visitor feels that she knows every word that is said. She began to mumble in broken English that her daughter could not pay the loan, and did not see why she is troubled.” The woman's daughter, Harry Roland's wife, was more open to the Society's inquiries, but also had her limits. The visitor observed that she “became somewhat impatient, and seemed to be very unappreciative of agents efforts in her behalf” after the visitor again urged her to save something toward payment of the loan.Footnote 52
Loans came with further supervision and instructions on how the assistance should be used. In 1910, Mary Lafferty received a loan from the Society for moving expenses, conditioned on her promise to visit the local tuberculosis clinic and send her son, Harold, to the municipal tuberculosis sanitorium in Otisville, New York. The Society agreed to provide another mother with milk and eggs every week, but only if used for her personal consumption. She was also instructed to walk “for a half an hour each fine day in the open air.” If she did not show improvement in her health in a month, relief would be discontinued as “useless.” Money for moving expenses was similarly refused if the Society did not approve of the rooms selected.Footnote 53
If the Society suspected that a borrower was holding out or not making a genuine effort to repay, its collection tactics could be aggressive. The Roland family, which used insurance policies worth $1168 as security for loan of $25, asked the Society to return one of the policies, which matured on the insured's seventy-fifth birthday. The Society refused to return “any of the insurance papers until family make some effort to return some of the money.” When the York family failed to repay their loan, the Society visitor, “[i]nformed Mr. Y. that he would be expected to repay loan, and if he did not do so voluntarily, [the Society] would make it as uncomfortable for him as possible.” These threats were mostly bark with no bite. There is no record of the Society garnishing borrowers' wages, for example. The Society relied upon persuasion and guilt, pressing on the borrower's sense of moral obligation. The assistant secretary of the Society wrote to one borrower: “Do you think it is quite a manly thing to utterly disregard the effort which others have made to assist you at a time when there was illness in your family and when, as you stated, there was no other place to which you could go to make application for help? Personally I am not only greatly surprised but greatly disappointed that you should have so betrayed my confidence.”Footnote 54
The success of these collection methods depended upon the borrower's sense of obligation. One borrower who was “anxious to pay her indebtedness,” offered to pay 50¢ per week out of the $1.60 per week that the family had set aside for food. In contrast, Elizabeth York, who felt “little responsibility” about the loan owed to the Society, was largely immune to the Society's collection methods.Footnote 55
Private moneylenders had other means of exacting payment, although they also relied upon extralegal sanctions and borrowers' desire to protect employment and reputation. However, unlike the Society's lending operations, these transactions took place outside of the law or in its shadow.
IV. Marginal Enterprises: Borrowing from Loan Sharks
The business of lending small sums to working-class borrowers was not an invention of the early twentieth century. Pawnshops or “hock shops” had existed in America well prior to independence. Pawnshops remained practically the only source of credit for the working class in the antebellum period, until loans secured by a lien on movable property such as the borrower's jewelry or furniture, known as “chattel loans,” became available after the Civil War. Commercial banks, however, “showed little interest in extending personal loans to low-income, high-risk working-class borrowers” and immigrant bankers, although they did loan small sums, usually assisted only personal acquaintances. Working-class borrowers in the early twentieth century had three for-profit sources for small loans: pawnbrokers, chattel loan companies, and salary lenders. Those with personal possessions to pledge could borrow from a pawnbroker or chattel lender. Those with a steady income could borrow against their future wages from a salary lender.Footnote 56
Pawning was relatively straightforward, especially when compared with borrowing from a salary lender or chattel loan office. The loan could be completed in a matter of minutes. The pawnbroker would appraise the item to be pawned, write out a ticket for the item, and hand over the money. The collateral, which ranged from clothing to work tools to jewelry, would remain in the lender's possession until repayment. The size of the loan mostly depended upon how much the item could fetch at auction, should the borrower default. The borrower did not sign any documents; if a borrower failed to repay the loan after a certain period of time, the lender could sell the item, but had no recourse to the borrower's wages or other personal possessions.Footnote 57
The ease of pawning made it an attractive form of credit. Both Mary Lafferty and Anna Gruzinsky pawned their most valuable possessions before turning to the Charity Organization Society for assistance. Indeed, some borrowers made a regular practice of pawning items that were not needed on a weekly basis. A Tree Grows In Brooklyn, Betty Smith's semi-autobiographical novel, vividly describes the Saturday pawning ritual in Williamsburg, Brooklyn in the first decades of the twentieth century: “About four o'clock the flats in the tenements … came to life. … Women came in with bulky hock-shop bundles. The man's Sunday suit was home again. On Monday, it would go back to the pawnbroker's for another week. The hock-shop prospered on the weekly interest money and the suit benefited by being brushed and hung away in camphor where the moths couldn't get at it. In on Monday, out on Saturday. Ten cents' interest paid to Uncle Timmy. That was the cycle.”Footnote 58
Borrowing from a loan shark was more complicated. Progressive-era loan sharks were not gangsters. Although they operated in the shadows, they did not threaten borrowers with broken kneecaps or sleeping with the fishes. Instead, they used law as a weapon, capitalizing upon loopholes and legal fictions, and turning courts' defense of borrowers' contractual “rights” to their own advantage, to extract payment from delinquent debtors. Loan sharks' business methods were shaped by law, if not always law abiding. John Doherty's transaction illustrates how borrowing from loan sharks worked, and the ways that law was used as a sword and a shield.Footnote 59
Obtaining a salary or chattel loan was more elaborate than pawning, but less invasive of personal privacy than borrowing from organized charity. The borrower answered questions about past and present employment, wages, and other loans. The lender then investigated to confirm whether the borrower was a good credit risk. The rise of large corporate employers, with well-organized payroll departments, facilitated easy and efficient investigation of borrowers. A number of these large firms, however, would discharge an employee if a wage assignment was filed. Borrowers whose employers did not allow wage assignments were therefore particularly good credit risks because they would do anything to avoid the lender initiating collection efforts through their employer.Footnote 60
Chattel and salary loans were not always approved. Borrowers might be turned down for having “too many loans,” having “loans at other places,” owing “bills in the neighborhood,” or being “too poor.” If approved, borrowers had to sign complicated documents to secure the loan, usually at sky-high rates of interest. These loan documents were sometimes missing key terms or were so dense and legalistic that they obscured the nature of the document. The power of attorney signed by Doherty is a prime example of such subterfuge.Footnote 61
Borrowers were discouraged from reading the documents they signed. One study found that the “manner in which the papers are often arranged for signature makes the reading of them impossible. They are either so folded [] that their character is concealed or arranged under other papers so that the entire document is covered except for the space for the signature.” Borrowers who did inquire were met with the “firm assurance of the manager that the paper is of no practical value, that it is only a necessary form which must be carried out in order to make the transaction legal.” The borrowing experiences of Doherty and another borrower, Harry Powers, were eerily similar. Powers also did not read the papers that he signed at the loan office: “I didn't look them over at all. I just simply signed where I was told to put my signature.” In May 1912, Powers, who earned $20 per week working for a Manhattan printer, borrowed $11.50 from Burt Brothers, a loan sharking operation near the intersection of Fifth Avenue and 15th Street, in exchange for the promise to repay the loan plus $4.50 in fees and interest over the course of two months. Powers' annual interest rate was also well above the legal rate in New York State.Footnote 62
Loan sharks generally strove to keep out of the press and to shield themselves from public scrutiny. The Chesterkirk Company, from which John Doherty obtained his loan, employed a number of the tricks common among loan sharks in New York. First, the owners of Chesterkirk tried to conceal their identities. They operated the business under the trade name “R.C. Chesterkirk,” implying that the business was owned by someone named Chesterkirk. The real owner was the State Trading Corporation, another corporate mask. State Trading also owned another brokerage in New York City, which operated under the trade name “Walter Graham.” These corporate cloaks hid the three individual owners from open public scrutiny and kept their names out of the newspapers.Footnote 63
The Chesterkirk Company employed another common strategy for evading usury laws. Chesterkirk did not make loans directly, but operated as a broker for lenders such as H.A. Courtright of Providence, Rhode Island. Although the Chesterkirk office was in New York City, its loans were actually contracted in Rhode Island or Maine, where usury prohibitions were relaxed. The complex form of the transaction served to disguise a salary loan negotiated and finalized in New York as an out-of-state transaction, cloaking it in the law of a less-vigilant jurisdiction. Other salary lenders structured loans as salary purchases or wage assignments to evade usury restrictions. In these transactions, rather than making a loan, the lender would agree to buy the borrower's future wages; the lender might pay the borrower $140 in exchange for the borrower's promise to assign the lender his wages, which were $125 per month. As one Sage Foundation official concluded, lenders did “not as a rule openly violate the usury law.” Instead, they cleverly evaded it. Regulating lending was like playing whack-a-mole: one form of usurious lending was shut down and another scheme popped up to get around the newly enacted law. The business of lending had moved from a local to a national scale, but the scope of regulation did not similarly expand from the state to the federal level.Footnote 64
If a borrower defaulted, the lender could go after his or her wages or the mortgaged property. Or the lender might offer to renew or refinance the loan for another term, tacking on additional fees while charging interest on the new higher loan value. Loan sharks were expert in the legal bluff, using borrowers' lack of legal sophistication against them. Often the appearance of legality was all that was required to extract payment. Excerpts from an instruction manual prepared by a loan office for its branch managers illustrate the strategy. The manual advised:
Use 'soft soap' talk on the borrower only after you have tried stones and gravel. If the customer mentions the law, hunch your shoulders and say you don't know much about it….
Bluff the borrower by rattling papers in your desk, pretend to phone to an attorney, but hold the phone closed; remember the whole proceeding is more or less a bluff. Give your customer good hard roasts…
We need managers with 'bulldog' determination. Get some attorney who will sell you his letterheads, and then write to slow customers upon them.
Lenders sent borrowers “legal looking” documents with titles such as “Notice of Judgment,” “Original Notice before Suit,” and “Ultimo Notitia[sic]” to imply that collection attempts by the loan office were actually court-issued warnings. Some, such as Doherty's creditor, went straight to the borrower's employer with an executed wage assignment.Footnote 65
To discourage legal challenges, lenders also might present the employer with a list of court decisions affirming the “absolute right” of all employees to assign their wages. Chesterkirk advised borrowers' employers that the “highest Courts of Rhode Island, Massachusetts, Pennsylvania, New York, and other states have decided that every employee has an absolute right to assign wages which he has earned and also wages which he expects to earn, and that the employer, in such cases, is bound to pay such wages as they accrue to the assignee.” A string of case citations followed, calculated to discourage further investigation into the limits of lenders' collection rights.Footnote 66
The Law of the Loan Shark in the Lochner Era
Because debt collection disputes infrequently ended up before a judge, courts' influence on working-class borrowers is difficult to discern in most cases. Loan sharks preferred to rely on unofficial collection methods, or to file wage assignments that allowed them to collect wages directly from debtors' employers. Although lenders freely cited judicial opinions to discourage legal challenges to their right to collect, they rarely tested the legality of their loan contracts in court. One journalist observed that the “loan shark seldom sues. There are only two cases on record in New York State. When he threatens suit it is only a bluff. Met by a reputable attorney, he compromises or drops the case entirely. He wants neither litigation nor intelligent inquiry.”Footnote 67
Yet, lenders sometimes deemed court necessary. In these cases, loan sharks' clever methods of evading usury laws somewhat evened the playing field. Even if the loan was illegal, the many forms and borrower signatures gave an air of legality to the transaction. Moreover, the lenders' version of the facts would often go unchallenged; borrowers were reluctant to go to court to defend themselves, for fear of public exposure as debtors. Further, lenders could avoid the adversary process entirely by filing a confession of judgment against the borrower, allowing the lender to garnish the borrower's wages to recover the outstanding debt plus $15 in court costs.Footnote 68
Of the small number of cases that reached a judge, few raised legal questions that brought judicial discretion into play. In the absence of fraud, duress, or contract terms that violated “public policy,” courts favored enforcing contracts as written. Progressive-era judges would inquire into the fairness or equality of private bargains only in rare cases. Courts had some leeway in deciding whether contract terms were unenforceable on policy grounds, but often erred on the side of enforcement. “[W]hat public policy requires is often a vague and difficult inquiry,” New York's highest court explained in 1887. “It is clear that public policy and the interests of society favor the utmost freedom of contract, within the law, and require that business transactions should not be trammeled by unnecessary restrictions.”Footnote 69
Judges influenced the debt collection process at the margins, by construing the meaning of loan contracts and of state disclosure and licensing regulations. In the rare cases in which small-scale lending questions reached the courts and presented novel questions of law, judges carefully considered the dictates of public policy and the reach of common law defenses to enforcement of loan contracts. Many shared the anti-loan shark campaign's view that excessive governmental entanglement in private economic affairs could do more harm than good. Applying the common law of contracts, judges narrowed the defenses available to those opposing enforcement of loan agreements. For example, although New York law provided that usurious loans were void, judges held that only the borrower could raise the defense of usury to bar collection on a debt. A borrower's employer defending against a wage garnishment action could not avoid payment on the ground that the loan was void for usury. This defense was available only to the borrower. In these cases, courts would enforce the terms of the bargain as written.Footnote 70
In some instances, courts treated governmental interference with private contracts as more than simply undesirable on policy grounds; it was potentially an unconstitutional infringement of borrowers' liberty of contract. Lochner-era judges expanded the limits of “freedom of contract” to bar not only judicial meddling with private bargains through the application of common law doctrines, but also to prohibit some forms of legislative intervention. They concluded that “freedom of contract” was a fundamental liberty, constitutionally protected from legislative infringement. In effect, courts elevated a turn-of-the-century common law presumption in favor of enforcing the terms of a contract into a constitutional right against improper state interference with private bargains.
Doherty's unusually complicated and prolonged legal battle reveals the role that Lochner-era judges sometimes played in the lives of poor borrowers. Doherty was unusual in that he had his day in court, unlike most New York City borrowers. Or rather, his employer, the Erie Railroad, had its day. Doherty's case came before a judge because the Erie Railroad did not fire Doherty upon learning of the wage assignment, contrary to the longstanding practice of many employers. Instead, the railroad hired counsel and disputed the lender's claim all the way up to the Court of Appeals, New York State's highest court. Also out of the ordinary was the bold decision of Doherty's creditor to litigate, despite the vigorous legal defense mounted by the railroad.Footnote 71
By the time Doherty's case came to trial in New York, state courts had struck down as unconstitutional a handful of regulations related to private economic decisions. The New York line of decisions stretched back to 1885, when the New York Court of Appeals invalidated a state law banning cigar manufacturing in tenements in Manhattan and Brooklyn on constitutional grounds. The court struck down the law as an unconstitutional exercise of legislative power infringing on individual liberty without serving the interest of public health. In the decades that followed, the court both upheld and struck down protective legislation depending upon the law's scope and relationship to the separate spheres of the home and the market. Then, in a landmark decision in 1905, the United States Supreme Court weighed in, objecting to the court's broad reading of the police power. In Lochner v. New York, the seminal case that came to define the period up to 1937 as the Lochner Era, the United States Supreme Court overturned a New York law that limited the working hours of bakers, holding that it was an “unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” Two months later, the New York Court of Appeals applied the teachings of Lochner. It struck down a licensing law for employees of plumbing firms as “an unwarranted interference with individual freedom.”Footnote 72
The lawsuits that followed John Doherty's failure to make payment on his loan capture New York judges at work defining the meaning of “liberty of contract,” pondering how much leeway private actors should have to set the terms of their bargains free from the constraints of judges and legislators. They also illustrate how judicial interpretation of the common law of contracts and protection of contractual liberty against legislative interference could turn courts into loan sharks' allies. In Doherty's case, Myrtle M. Thompson, who had purchased Doherty's debt from N.W. Hasten, sued the Erie Railroad Company for the amount owed in the Municipal Court in Brooklyn. The railroad argued that the creditor had not complied with New York's notice requirement for wage assignments and was therefore barred from using the courts to collect the debt. Erie lost at trial and judgment was entered in favor of the creditor. The railroad appealed the decision.Footnote 73
Erie first appealed to the New York Intermediate Appellate Court, hoping for a reversal of the creditor's victory at trial. The railroad lost again. In a unanimous decision by Judge Woodward, the court accepted the creditor's claim that Doherty had “authorize[d] his agent to enter into a lawful contract” in the state of Maine. It rejected the railroad's defense that court enforcement of the contract was barred by the lender's failure to comply with New York's notice regulation. The loan contract was valid and enforceable as written, the court held. Doherty had a “common law” right to enter into the contract with Blanding. (In finding for the creditor, the court repeatedly invoked the debtor's rights: the “right” to give a power of attorney to a resident of Maine, the “right” to enter into a loan in Maine, and the “right” to assign his wages). The decision made no mention of Doherty's testimony that he had not read the power of attorney and had never heard of his nominal agent, Stella Blanding, who signed the loan agreement on Doherty's behalf. These facts had no legal consequence. The railroad had no defense under the common law and the New York notice regulation did not provide one either. Construing the New York law to deny the lender its right to file an action to collect the debt, the court held, would be a “denial of the constitutional rights of the employees.”Footnote 74
The appellate court's decision in Doherty's case might have been the last word on the matter, had it not been for another New York case that was decided the other way. While the Erie Railroad was fighting its way through the Brooklyn courts, Gimbel Brothers department store was litigating a wage assignment suit in Manhattan against the same debt buyer, Myrtle Thompson. The Gimbel Brothers suit was closely watched by reform organizations and concerned members of the business community who had pledged to combat usurious lending. Gimbel Brothers had joined the Russell Sage Foundation's campaign to rid New York City of loan sharks, and was represented by Walter Hilborn. Gimbel Brothers won in the intermediate appellate court, by a narrow three to two margin.Footnote 75
Both cases were then appealed to New York State's highest court and set to be argued on the same date. The court would decide once and for all whether the employee's freedom of contract should trump New York's lending disclosure regulation. The fates of Doherty and the Gimbel Brothers employee-borrowers were joined. Hilborn, the lawyer for Gimbel Brothers, was optimistic about the department store's appeal, but feared that the bad decision in the Erie case and the failure of Erie's lawyers to present empirical data to support their cause might jeopardize Gimbel Brothers' chances. After all, Gimbel Brothers had prevailed in its first appeal by a narrow margin, whereas the decision in favor of the creditor in the Erie case was unanimous. Moreover, Judge Woodward and the two dissenting judges in Thompson v. Gimbel Brothers all accepted the creditor's distorted version of the facts: that the borrower “chose to make his bargain with the money lender in a State which has no usury law.”Footnote 76
Ultimately, Gimbel Brothers and Erie Railroad—backed by the anti-loan shark campaign—prevailed in their objective: to bar creditors from using the courts to enforce wage garnishments that did not comply with statutory disclosure requirements. Confronted with an arsenal of reports on the salary loan situation in New York that were appended to the Gimbel Brothers brief, the court found that the disclosure law was enacted for the protection of both employers and borrowers. It was a reasonable exercise of the police power that served the “public welfare” because it would “to some extent prevent improvidence and recklessness by and fraud upon the employee.” The lender's failure to comply with the notice law barred it from using the courts to collect the debt from Doherty's employer.
In this and other cases, courts reasoned that the state could impinge on borrowers' contractual freedom to prevent pauperism. The United States Supreme Court upheld a similar Massachusetts disclosure law a few months before the New York court decided Doherty's case. The Supreme Court used similar language to describe the purpose of the Massachusetts law. It was designed to prevent an improvident wage earner from depriving his family of support and becoming “a public charge.” With the exception of Illinois, other state courts fell in line with Massachusetts and New York in upholding similar regulations.Footnote 77
Anti-loan shark activists hailed the decision as a victory for small loan borrowers; however, the real impact of the decision was limited. The ambiguity in the three day notice provision—the central question addressed in both cases—was corrected through legislative amendment before the Court of Appeals ever ruled on the provision's meaning. Loan sharks were thus made to comply with a narrow, procedural regulation, whereas the court did not directly address Judge Woodward's sweeping pronouncements on the common law “rights” of borrowers to enter into usurious loan contracts, limitation of the defenses available to void such bargains, and disinterest in testimony concerning the circumstances of the transaction and the subjective understanding of the parties to the deal. Indeed, the following year a defendant in an unrelated case cited Judge Woodward's opinion as good law, despite its apparent overruling, when attempting to overturn her conviction for criminal usury. Woodward's language continued to provide lenders with a legal toehold to defend their practices.Footnote 78
Conclusion
Historians have usually portrayed Lochner-era courts and progressive reformers as opponents. In the dominant narrative, progressives sought to use the power of the state to regulate the market, whereas judges battled to keep government in check. However, as recent scholarship has shown, progressive reform movements were animated by a multiplicity of goals and ideologies, not always in harmony with one another. The anti-loan shark campaign's vision of the role of the state in the market, one of many “progressivisms,” defies easy categorization as “statist” in outlook. In this case, the standard binaries—courts versus reformers, advocates of laissez-faire versus statists—fail to capture the complex relationship between the judiciary and the lending reform campaign. Lending reformers looked beyond the state for solutions, relying instead on other market participants and corporate employers to police the small-sum lending industry. Their strategy reflected a private, market-based approach, rooted in organized charity's historic opposition to government involvement in the provision of poor relief and preference for private solutions to poverty.Footnote 79
Reformers fought not for greater state involvement, but rather for loosening the regulatory caps on interest rates and placing limits on lender access to the courts to collect unpaid debts. The role of the law, reformers believed, was to level the playing field and allow for free entry of “honest capital.” Raising interest rate caps would encourage the growth of the industry and the resulting competition between lenders would purge the market of loan sharks. Private remedial lending operations would create further competitive pressure on usurious lenders. Flooding the market with capital would drown the sharks, reformers believed. They also sought to use the power of private employers to police the lending industry. They encouraged employers to refuse to honor wage assignments from loan sharks and to raise defenses to enforcement of such debts in court. In this way, corporate employers would provide a backstop against usurious lending practices.
Courts were likewise wary of legislative and judicial encroachment on private bargains. Yet, they recognized that the state had a legitimate interest in preventing improvident wage earners from becoming paupers, dependent upon poor relief. This interest justified some state-imposed limits on lenders' right to collect unpaid debts. Judges, like reformers, envisioned that the state would play a limited role, creating space for private power to regulate the marketplace and protect borrowers from their own “improvidence.”
Thus, when lending reformers and courts puzzled over how to configure the relationship between the state and the market, they often reached similar conclusions. These progressives and state court judges were not always at odds in how they envisioned the role of the state in the market. Instead, overlapping and complementary intellectual currents emanating from established legal and philanthropic circles molded the structures of law, charity, and industry in which working-class New Yorkers borrowed and determined the options available to those managing money on the margins.Footnote 80
