to a breakdown of machinery, and the workers are not allowed to leave the mill. Foreign countries, while they sometimes limit the extent of deductions for materials used, still do not prohibit them. Although the labor codes generally state that prices shall not be excessive, this is a goal reached only by effective administration.

(6) Mechanics' Liens and Wage Preference

The idea that wages are to receive special treatment, that they are to be paid before other claims, that security is to be given for their payment, and that they shall be exempt up to a certain amount from execution, underlies legislation on mechanics' liens, on wages as preferred claims, and on wage exemption. The last of these subjects is treated elsewhere;1 here we consider the preferential treatment of the laborer as creditor. Mechanics' lien laws represent a stage in the progress toward wage preference, but they should not be confused with it. They are founded on the still older practice of giving contractors and builders a claim for payment on houses they built and the land that these were built on.

In 1830 the first mechanics' lien law was passed by the New York legislature 2 and was based on the following considerations, set forth in a committee report:

"The committee are credibly informed that the severe and heavy losses sustained by the laboring interests have arisen far more frequently from insufficient, reckless contractors, having nothing to lose, than from contractees. . . They would be distinctly understood, declaring it as their undivided opinion that a mortgage given to secure the payment of money lawfully borrowed, the justice of which no one will presume to dispute, is not a more equitable claim than that of the mechanic and laborer on the dwelling-house and other buildings, and ground on which the same are erected, so far as their claim and demand can be correctly ascertained." 3

Mechanics' lien legislation seeks to give the laborer a claim for the payment of what is due to him, backed by the security

1 See "Wage Exemption," p. 47.

2 New York, Laws 1830, C. 330.

New York Assembly, Documents, 1830, No. 24.

of the structure or land on which he has been employed. It exists in all the states, and extends to labor performed on public works, railroads, in mines, and on the land, as well as to lumbering, construction and repair of vessels, sawmilling, and other occupations. Such liens are generally ranked as coming before other payments; and in many cases where contractors and subcontractors are entitled to benefit in a similar way, the wage-earner's claim is put first.1

The next step was the provision that wages should be considered as preferred claims. Nearly all the states and the federal government have laws providing that in cases of assignments, administrations, and receiverships due to death or bankruptcy, the wages of servants and employees, up to a definite sum and for work done within a limited time, shall be paid next after fees, costs, and taxes." France has a law giving preference to wage payments.3 Great Britain and her colonies include in their bankruptcy laws preferential payment claims, providing usually that salaries of clerks not exceeding $500 and wages of laborers not exceeding $125 shall have equal claim to payment with taxes and expenses. The British bankruptcy law now includes national insurance contributions and amounts due for workmen's compensation in this category. New Zealand has a bona fide contractors' and workmen's lien act resembling the American legislation.5

3. THE LABORER AS TENANT

(1) Classes of Agricultural Workers

Of the 30,000,000 males over ten years of age engaged in gainful occupations in 1910, 10,700,000, or more than one

1 California, Colorado, Idaho, Illinois, Louisiana, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Washington, West Virginia.

2 Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maryland, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, South Dakota, Pennsylvania, Texas, Utah, Washington, Wisconsin, the Philippine Islands, and the United States.

3 Lois, Décrets, Arrêtés concernant la Réglementation du Travail, Bk. I, Ch. II, Sec. II, Art. 46, 47. 4 4 and 5 Geo. 5, C. 59, 1914.

'New Zealand, Statutes 1892, No. 25.

third, were employed in agriculture. Of this number something less than 4,000,000 were owners operating their farms. More than 2,000,000 were tenants, and 4,700,000 were laborers working for owners and tenants. But these figures do not represent the actual proportions of wage-earners and employers in the sense of the wage bargain as understood in manufactures and other industries. Of the 4,700,000 laborers, 2,100,000 were members of the family of the owner or tenant, and, therefore, their labor contracts do not exhibit the strictly business relation of employer and employee in the modern wage bargain. Such labor problems as they present, from the standpoint of legislation, are mainly those of child labor. a. Hired Laborers. The remaining 2,600,000 are hired laborers, and to them would be applicable labor laws similar to those enacted to protect laborers in other industries. However, as a matter of fact, labor legislation in the United States has had very little to do with farm labor. Laws like those regarding workmen's compensation, safety, health, or hours of labor sometimes either specifically exclude agricultural labor from their operation or are not applicable. Other laws, such as laborers' liens, wage exemption, prohibition of involuntary servitude, and the like, are so general or fundamental that they apply to farm labor.

Hired laborers are of two classes, considerably different in their condition. About 200,000 of those enumerated appear to be "casual" laborers, hired usually by the day, and 2,400,ooo are hired by the month or year. The number of casual laborers is doubtless greatly underestimated, for the Census enumeration is made in April, whereas the largest number of this class of laborers is employed during the harvest seasons from July to November. They are enumerated in April in other industries, and are the migratory laborers who appear in the logging-camps and ice harvests, as well as temporary laborers in other occupations.

The number of 2,400,000 farm hands regularly employed is also understated, because an uncertain number of tenants

1 Thirteenth Census of the United States, Vol. IV, 1910, p. 302. This figure is obtained by combining the estimates for agriculture and animal husbandry. The Census distinguishes the number of farms operated by owners and tenants, not the number of owners and tenants; hence these numbers are estimated,

are really hired laborers under a special form of tenant contract and should be classed as employees rather than tenants.

b. Tenants. The Census gives the numbers of two kinds of tenants, 712,000 "cash" tenants and 1,528,000 "share" tenants. By cash tenant is meant not one who pays rent in actual cash, but one whose rent is definitely fixed and certain and is stipulated in advance in the contract either in dollars, in labor, or in products. It may be $7, ten bushels of wheat, or 100 pounds of cotton per acre. Evidently the "cash" tenant is a small capitalist, a contractor, or an employer, since he invests his own money or labor and takes all of the risks of the business. His gains are profits rather than wages; his bargain with the landlord is a price bargain, not a wage bargain.

The share tenants are more difficult to classify. They may be either small capitalists or simply farm laborers, and the Census does not distinguish between the two. A share tenant pays the landlord as rental a certain share of the product, as one-half, one-third, or one-quarter. In making such a contract the tenant would appear to be a contractor or capitalist, who takes, not indeed the whole risk of the business, but a part of the risk. Such is the case if he actually invests his own capital, such as horses, cattle, implements, and so on, and runs the risk of losing his capital on the chance of increasing it. He would figure the outcome as profit or loss.

c. "Croppers." But if, on the other hand, the tenant "invests" nothing but his own labor, and the landlord furnishes all of the working capital, then the landlord is the capitalist-employer, the tenant is a laborer, and the bargain is a wage bargain. His wages, however, are not the stipulated daily or monthly wages received by a "hired man," but they are contingent wages, similar to those paid to a piece-worker, or, rather, to a sailor on a whaling-ship who receives a share of the product at the end of the voyage. This system of wage payment is spoken of as "product sharing," to distinguish it from "profit sharing."

2

Thirteenth Census of the United States, Vol. V, 1913, p. 97. This includes among "share" tenants those given in the "leases" as sharecash"-an intermediate class.

D. F. Schloss, Methods of Industrial Remuneration, 1891, p. 249.

The terms "cropper" and "cropping contract" will be used herein to designate this kind of labor-tenant under the system of share tenancy. The terms originated in the southern states, where share contracts are most prevalent and where they account for the high percentage of tenancy. In 1910, 66.8 per cent. of the tenancy in the South was share tenancy, including both farmers and laborers on shares, while only 31.6 per cent. of northern and 1.6 per cent. of western farms were operated on a system of share tenancy.1 In popular usage, the term "cropper" includes both the share farmer, or small capitalist, and the share laborer. Both are croppers. The courts, however, have settled upon the term 'cropper" to indicate the laborer, and, adopting this usage, we can distinguish the cropper, as a laborer whose wages are measured by a share of the product under the guise of a lease, from the share tenant, as a small capitalist paying rent.

2

No reliable estimate can be made of the number of croppers. Indeed, the amount of capital owned by the farmer may be so small that he would be looked upon in other industries as scarcely more than a mechanic furnishing his tools and taking out work on a contract. The distinction is made in the laws of Alabama3 which define a share tenant as one who owns his team, and the cropper as one whose landlord owns the team. The law of Texas, enacted in 1915,4 is the first American law designed to regulate the rents of share tenants. It attempts to prevent the landlord from charging more than one-half of the value of the product if he furnishes everything except labor, and more than one-third of the grain and one-fourth of the cotton if the tenant furnishes all of the operating capital. Thus it distinguishes and regulates both the rent of the farmer and the wages of the cropper.

. In other states, where the legislature has not attempted to standardize or regulate the share contracts, the courts have been compelled to decide in each case as it arises whether the laborer is a cropper working for wages under a labor contract,

1 Thirteenth Census of the United States, Vol. V, 1913, p. 113.

2 Steel v. Frick, 56 Pa. St. 172 (1867); Harrison v. Ricks, 71 N. C. 7 (1874); Almand v. Scott, 80 Ga. 95, 4 S. E. 892 (1888); Hammock v. Creekmore, 48 Ark. 264 (1886).

'Alabama, Code 1907, Secs. 4742, 4743. Texas, Laws 1915, Article 5475 (3225).