Foreclosing the Foreclosers, Early-American Style

Memo to Tea Party: The major social battle raging during the time of the American Revolution was over the proper uses of money and credit. Not getting government out of the economy.

“I got debts that no honest man can pay … ”
~ Bruce Springsteen, “Atlantic City”

O. Max Gardner III, a patrician lawyer in Shelby, North Carolina, has started a movement for resisting home mortgage foreclosures.

In what Reuters describes as “legal jiu jitsu,” Gardner teaches techniques for using a bank’s lumbering hugeness to enable people to stay in their homes long after banks want them gone. He’s not alone. A foreclosure resistance movement has gained national traction in the past year. The Times has reported on local sheriffs’ refusals to evict, and in an especially pointed act of guerilla theater, Patrick Rodgers of Philadelphia recently turned the tables on Wells Fargo by starting a foreclosure against the bank’s local mortgage office. According to ABC News, the bank had not paid Rodgers a court-ordered judgment it sustained in the process of failing to respond to his demand under the Real Estate Settlement Procedures Act (RESPA) for information about his mortgage. Rodgers thought his foreclosure gesture would at least get the bank’s attention.

The foreclosure resistance movement understandably disconcerts those who are concerned above all about fulfilling legal contracts and taking what the Tea Party-connected right calls “personal responsibility” for the inability to make mortgage payments. Yet the resistance has strong precedents in the same founding-era America to which the Tea Party constantly appeals. Conflicts not between American colonists and the British government but between small-scale American debtors and big-time American creditors illuminate struggles that continue today.

It can be hard to envision an early America seething with conflict between ordinary, hardworking Americans, stifled in their efforts to get ahead, and the rich, predatory Americans who stifled them. Prevailing historical fantasies of pre-Revolutionary America conjure a modestly thriving yeomanry, along with craftsmen, small businesspeople, and merchants participating together in a representative civics. In this fantasy, income and wealth disparities look minor and manageable; slavery and women’s subjugation are terrible deviations from an ethos of liberty shared more or less democratically by free Americans of all types. The main problem for everyone is the restrictive influence of the British elements in government. The rosy narrative has it that a revolution dedicated to freedom of trade and thought and the proposition that all men are created equal will launch this society on a grand progress, embattled but irresistible, toward a democracy that includes everybody.

Of course many historians have added troubling nuance to that picture; some have debunked it entirely. Certain history students, possibly over-interpreting the work of Howard Zinn, routinely reduce famous American founders to self-interested hypocrites. Yet across the political spectrum, fuzziness about founding-era economics, credit and monetary policy persists. The fuzziness helps today’s populist right cast nativism and unfettered markets as essentially American.

The possibly startling fact is that the major social battle raging before, during, and after the American Revolution was over the proper uses of money and credit in American life. For ordinary people of the period, these were hardly abstractions. The only real money in 18th-century America was metal — silver and gold coin from England, Spain, and Mexico — and for long, terrible periods, money was rarely seen by ordinary people. Small farmers and artisans, wanting to survive and improve their lot, had to borrow. Merchants, gaining access to metal through imperial trading networks, used their money to make money, becoming lenders. Well before the Revolution, Americans defined themselves in practical terms either as “debtors” — poor and working people in small-scale enterprise — or “creditors” — well-heeled merchants growing their money by lending it.
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Workings of the debtor-creditor relationship will sound unpleasantly familiar. Merchants had the money supply conveniently sewn up. Small farmers and artisans had to post the land and shops they hoped to develop as collateral for the credit they needed. Merchants might set interest rates as high as twelve percent — per month. Default, often predictable at the loan’s outset, subjected borrowers to foreclosures, which in bad times were epidemic. Families became indigent while their land, tools, and homes were snapped up at bargain prices, often by the merchants themselves, who speculated in land as well, and were building immense parcels. The rich got richer.

Is it any wonder that ordinary people viewed this disastrous economic predicament not as some incidental fallout from vigorous free-market competition, but as an egregious, systemic injustice with political, moral, even spiritual implications? They were being held back, exploited, and even ruined by a monopoly on money and credit. And unlike today’s populist right, founding-era Americans did not imagine that government’s simply leaving markets alone would create new and exciting opportunities for them. They believed their governments should make laws to restrain the overwhelming power of the creditors’ metal and protect those who labored and produced goods from those who planned dynasties of descendants living in luxurious idleness.

And remember: unless people had property in excess of certain amounts, they couldn’t vote. Whig elites — the ones who became patriot leaders, lionized today — axiomatically equated the right of representation with property. It took even more property to run for office. Legislatures erected counties to ensure that representation favored the rich and the cities. They placed cash fees on every imaginable transaction, paralyzing working people’s efforts to pursue legal recourse and enriching lawmakers’ friends and families appointed as collectors and administrators. Roads and other infrastructure built at public expense (and by coerced labor taxes) served the merchant interest, not the people’s. Hardly an embryonic American democracy, representative colonial governments were monopolized by forces that small-scale debtors and tenant farmers could only view as a creditor conspiracy to exploit their labor, prevent their participation, and take what stuff they had.

So they organized in vociferous protest. “Mob” is a loaded term; “crowd” is perhaps more fair, and early American crowd action should be understood as a tactic, in the absence of access to the franchise, for pressuring and even changing government. One of the most famous outbreaks occurred in the 1760’s in North Carolina, when ordinary people briefly had a few champions in the legislature. They forcibly closed courts, tore down corrupt officials’ homes, and finally went to war against the provincial government. Royal Governor William Tryon put that rebellion down — but the King’s appointee was more sympathetic to the people’s plight than upscale American legislators and merchants were.

Crowds could be flamboyantly scary and even violent, but they did not run amok, merely venting. In carefully organized disruptions, people moved en masse into courthouses where debt cases were heard, shutting down a judicial process they considered unjust. They felled huge trees across roads to prevent sheriffs from repossessing homes. They enforced no-buy covenants when foreclosed property went up for auction. They staged daring rescues of prisoners held on debt charges. Serving on juries in debt cases, they refused to convict. Well before the famous Stamp Act riots and other acts of resistance to new British trade laws, American life involved orchestrated crowd actions to prevent financial injustice and push government to act on behalf of ordinary people. After the Revolution, the event known as Shays’ Rebellion became only the most famous of the debtor uprisings that continued the people’s struggle in a new political context.

While emulating Shaysite and other debtor crowd actions today would pose an interesting counter-demonstration to Tea Party efforts, the question this history really raises has to do with what Americans want from their government. Do we really want to roll back “nanny state” protections like RESPA, for example, under which an ordinary citizen like Patrick Rodgers was able to interrogate his bank? RESPA is but one detail in a program — and a power — that our ancestors painfully lacked.

Tea Party history insists ordinary, hard-working Americans of the founding era wanted nothing more than to reduce government and keep it out of economic markets. But what those Americans really wanted can be gleaned from their terminology. The rich called them rioters. The people called themselves regulators.

**Check out our series on the foreclosure crisis, Foreclosure 411.

William Hogeland is the author of the narrative histories Declaration and The Whiskey Rebellion and a collection of essays, Inventing American History. He has spoken on unexpected connections between history and politics at the National Archives, the Kansas City Public Library, and various corporate and organization events. He blogs at https://www.williamhogeland.com.