Introduction
In 1858, Catharine Barr wrote to the Pension Commissioner in Washington, D.C., seeking reinstatement of her widow's pension. Barr explained that she had been married to two men who had died in the service of the United States: first to George Bundick, “a young and beloved husband” who had died in the War of 1812; then to William Davidson in 1835, who had died in 1836 of injuries sustained while serving on the USS Vandalia.Footnote 1 She acknowledged that she was not, strictly speaking, a widow, as her current husband, James Barr, was still living and they were still married.Footnote 2 She nevertheless sought reinstatement of the pension she had been granted as Davidson's widow. Pursuant to the terms of the relevant pension statute, Barr's pension had terminated upon her remarriage to James. However, as Barr explained to the commissioner, James “has neither been with me or given me one Dollar for my support since 1849, and I know not his whereabouts.”Footnote 3 Having also lost her father in the War of 1812, Barr saw herself as particularly deserving of the federal government's assistance and believed that she and other widows in her position had a claim on the national coffers. “I for one,” she implored, “have no Dependence on Earth only what comes through my relations.”Footnote 4
Catharine Barr was one of tens of thousands of women who, from the 1790s through the onset of the Civil War, sought and received assistance from the federal government as military widows.Footnote 5 During a period known for its paltry and punitive local poor laws, Congress enacted approximately seventy-six public law statutes granting cash pensions to large classes of widows of soldiers and veterans who had served in the United States military.Footnote 6 Although war widows' pensions were not unknown in Anglo-American law, this system of social provision for military widows departed from English and colonial precedent in significant ways. First, starting in the 1810s, Congress gradually began providing pensions to widows of rank-and-file soldiers, thus deviating from the class-salient approach of eighteenth-century widows' pensions—both English and American—which had privileged the widows of officers. Second, and as significant, in the 1830s, Congress began providing service-based pensions to large classes of widows of veterans, also regardless of rank, thereby providing a kind of old-age pension for thousands of women whose husbands had not died in battle. By the 1830s, military widows' pensions were no longer an entitlement tied to privilege and status, or an ad hoc form of relief for particularly sympathetic individual widows. Rather, they were a form of financial assistance, created by public law statutes, intended to alleviate pinching poverty for a significant class of women. Catharine Barr's plea for a pension thus serves as a lens through which to view an important but often overlooked early nineteenth-century phenomenon: the development of the first centralized broad-scale system of public marriage-based entitlements in American law.
Publicly funded marriage-based entitlements are commonplace today, but they were a novelty in the early nineteenth century. In that era, one of the primary purposes of marriage was to contain liability for women's financial needs within the private family, so as not to open up government coffers to claims by wives, widows, and other family dependents.Footnote 7 Given recent debates concerning the scope and propriety of marriage-based entitlements in American law and policy, scholars have asked surprisingly few questions about the earliest origins of this form of centralized social provision.Footnote 8 Through an investigation of the development of military widows' pensions in the early nineteenth century, this article takes a fresh look at the history of social provision for women, marriage-based entitlements, and women's experience of the law during this period. Elsewhere, I have focused on the sizable and complex administrative system that developed to administer military pensions in the early nineteenth century, and widows' navigation of that bureaucracy.Footnote 9 Here, my concern is the widows' interaction with Congress and the fundamental but complex question of causation: Why, in the early nineteenth century, did Congress come to subsidize marriage on a significant scale?
Although the forces leading to the development of a significant and complex system of military widows' pensions in the early nineteenth century were many, this article focuses on the important role played by widows' pension petitions to Congress, both because they were instrumental in the development of this particular form of entitlement and because they are an under-examined instance of women's participation in early nineteenth-century American legal and political life. In so doing, this article helps illuminate how marriage-based entitlements became entrenched in American law and social policy, forming part of our common sociolegal understanding of what it means to be married.
Women's petitioning practices of the early nineteenth century have not escaped the notice of historians. Much of that attention has focused on women's overtly reform-oriented petitioning efforts, such as the abolitionist petitions that flooded Congress in the 1830s and 1840s, and the petitions opposing Indian removal of the same period.Footnote 10 Over the course of the early nineteenth century, however, hundreds of women engaged in an arguably more pedestrian mode of petitioning by making formal requests to Congress for pensions based on their status as military widows. Their stories, and the role of their petitions in transforming military widows' pensions from a rarefied, class-salient privilege to a broad-scale entitlement, are the focus of this article.
To explain the petitioning process and the role of widows in shaping these early marriage-based entitlements, this article first details the experiences of two early nineteenth-century widows, Susan Decatur and Catharine Barr. Decatur and Barr took very different routes to obtaining their pensions. Decatur, the widow of the famous commodore Stephen Decatur, petitioned Congress directly in pursuit of a private act: a law enacted for the benefit of a named individual. Barr sought pensions pursuant to several of the public or general law widows' pension statutes that Congress enacted in the early nineteenth century. Standing alone, the stories of Decatur and Barr provide a window into individual women's negotiation of state power in the early nineteenth century—experiences undoubtedly marked by class and circumstance. But precisely because of the differences in Barr's and Decatur's experiences, their stories also provide important clues concerning the evolution of military widows' pensions. By situating these two women's experiences within the more general legislative history of the widows' pension system, we see that an important force leading to the development of the first centralized system of marriage-based entitlements was the formal assertion by widows to Congress that, in certain circumstances, marital status should serve as a basis for government support.
In making the case for widows' pensions, widows and their supporters drew on contemporary notions of domesticity and allied conceptions of men's status as citizen-soldiers. In this respect, widows' petitions provide a rich example of how women of the early nineteenth century deployed powerful gender conventions in an effort to achieve particular goals, a strategy that historians have traced in other late eighteenth- and early nineteenth-century contexts.Footnote 11 In the case of widows' pension petitions, that discursive strategy helped translate a set of powerful beliefs about women's and men's proper roles and capacities into a legal claim for federal material support—and not just for the Susan Decaturs of the world, but for common women like Catharine Barr as well.
Two preliminary remarks are in order. First, this is not a story about boundless congressional generosity to “worthy widows,” or about the radical democratization of women's rights as wives. Many widows' petitions for individual relief were, in fact, denied. However, considered collectively, such petitions prompted substantial legislative debate concerning the scope and basis of the government's obligation to support widows, and helped give rise to programmatic support for widows through general legislation.
Second, it is worth emphasizing that neither widows' pension petitions, nor the gender-based ideology on which they frequently drew, did all of the work. A whole host of factors influenced the development of military widows' pensions in crucial ways, including economic and political trends, broader changes in legislative practice, and an early nineteenth-century culture of militarism. My goal in focusing on the importance of widows' petitions is not to diminish the significance of these other factors, but rather to highlight the particular political and legal process through which women helped to bring about a significant transformation in government policy, even (or especially) as they relied on a constellation of gender-based beliefs that also served to circumscribe women's claims to full citizenship in other contexts.Footnote 12
The petitioning process was itself bound in part by gender-conventional expectations concerning women's engagement with the state. But however humble their discursive conventions, widows' petitions put women's financial needs on the national legislative agenda, brought attention to the inequity of inherited class-salient practices, and informed the way national legislators reasoned about women's claims on, and their position within, the polity. To overlook widows' petitions in an analysis of the development of military widows' pensions would result in an anemic account of the evolution of social provision for women. Drawing on deeply held beliefs concerning women's dependency and proper social role, while simultaneously asserting new claims on the polity, widows' petitions helped initiate a lasting change in American law and policy: the development of the public marriage-based entitlement.
I. The First System of Public Marriage-Based Entitlements
Today, the death of one's spouse can trigger all manner of public and private compensation for the surviving widow or widower, including Social Security survivors' benefits, workers' compensation, life insurance benefits, and tort remedies in wrongful-death actions. However, the law has not always been so focused on the financial security of surviving spouses. Early nineteenth-century law provided for widows and widowers through intestacy law and related doctrines such as dower and curtesy, but the scope of such provision was limited.Footnote 13 Certainly, the notion that a spouse's death could trigger the allocation of public assets was not understood as a natural consequence of the marital relationship. Under eighteenth-century Anglo-American law and policy, the vast majority of war widows—women who would seem to have had the greatest claim on the polity's sympathy and resources—went uncompensated for their husbands' deaths. The system of federal military widows' pensions that developed in America over the course of the early nineteenth century marked an important departure: the creation of legal entitlements to public monies for a significant class of women, based on their marriage to a worthy husband.Footnote 14
Anglo-American governments had provided for some military widows, but such provision was of a different scope and kind. In eighteenth-century England, pensioning the widows of officers was a fairly common practice, but systematic provision for widows of soldiers was not available until the end of the nineteenth century.Footnote 15 American colonial governments adopted a similar class-salient approach to war widows' pensions, generally providing significant pensions to the widows of officers as a matter of course, but providing for the widows of soldiers, if at all, though poor-law types of statutes that were based on need and limited to subsistence-level support.Footnote 16 This pattern persisted on the federal level from the Revolutionary era to the first decade of the nineteenth century: in 1780, the Continental Congress granted pensions to the widows of Revolutionary War officers, an act that Congress later ratified, and a general practice that Congress continued through the early 1810s.Footnote 17
Congress's first innovation with respect to widows' pensions expanded the socioeconomic reach of the pension system as it applied to what one might call traditional war widows—women whose husbands died in the line of duty—by making such pensions available regardless of the husband's rank.Footnote 18 This equalization of war widows' pensions was an evolutionary rather than a revolutionary process. Two years into the War of 1812, Congress began to provide for traditional war widows of the rank-and-file; first to widows of privateers and navy seamen, and next to widows of army soldiers.Footnote 19 In subsequent years, Congress regularly enacted general pension statutes for the benefit of widows of seamen who perished in ongoing naval encounters and widows of soldiers who died in “frontier wars.”Footnote 20 Until the 1830s, however, the default rule in statutes governing the military establishment was to provide pensions to the war widows of officers only.Footnote 21
In 1836, Congress enacted two watershed statutes that dramatically expanded the socioeconomic reach of widows' pensions. First, in March of that year, it provided a 5-year pension to the widow of any “officer, non-commissioned officer, musician, artificer, or private, of volunteer and militia corps, who shall die in the service of the United States,”Footnote 22 thus creating a blanket provision for the war widows of men of all ranks. In so doing, Congress departed from the class-salient default rule that had tended to characterize traditional war widows' pensions in Anglo-American law for at least 200 years.Footnote 23
Then, in July of the same year, Congress took the equally significant step of introducing broad-scale service-based pensions to large classes of Revolutionary War widows, including widows of soldiers. Widows' service-based pension statutes benefited women whose husbands died long after their military service had concluded, almost always of causes unrelated to that service. The Act of July 4, 1836 awarded lifetime pensions to the widows of “officers, marines, mariners, musicians, and soldiers” who had served in the Revolutionary War for at least 6 months, “whose marriage took place before the expiration of [their] last period of service,” and who had never remarried.Footnote 24 The women pensioned under this Act were not the young widows of fallen soldiers who usually come to mind when we think of war widows. As one committee report explained, “[t]he provisions of the act [of 1836] were clearly intended to sustain the widow in her declining life.”Footnote 25 Through several general pension statutes enacted between 1837 and 1853, Congress expanded the categories of widows eligible for service-based pensions, thus promising cash assistance to the many thousands of women who had been married to a Revolutionary War veteran at some point in their lives.Footnote 26
These two significant shifts—the leveling of traditional war widows' pensions and the creation of service-based widows' pensions for Revolutionary War widows—spawned a significant system of centralized public marriage-based entitlements. This system was not completely free of the rank-based obsession of the military, as the amount awarded to individual widows was calibrated largely to the husband's rank.Footnote 27 And it would be a serious overstatement to characterize this complicated constellation of widows' pension statutes as a system of universal entitlements. They were part of the advent of an enduring form of provision in American social policy: the selective entitlement.Footnote 28 Nevertheless, these statutes created a far-reaching program of social provision that benefited tens of thousands of women. Based on early nineteenth-century records collected by the Pension Office and submitted to Congress, between 1836 and the outbreak of the Civil War, more than 47,000 widows collected pensions under federal pension laws.Footnote 29
Of course, numbers do not tell the entire story. Widows' military pension statutes not only created new entitlements for a significant group of women, but also reflected and disseminated important social knowledge about women's legal rights as wives. As I have examined elsewhere, federal military widows' pensions of this period were supported and implemented by a significant administrative apparatus that reached from the Pension Office of the War Department in Washington, D.C., to individual local banks that issued payments on widows' pension certificates.Footnote 30 The enactment of public law pension statutes thus ushered large numbers of widows into the federal administrative system that evolved to determine individuals' pension eligibility, an experience that undoubtedly shaped those women's understanding of their status in the polity as wives and widows. Widows' pension applications reveal the unsurprising but important fact that military widows were aware of the pensions awarded to other widows, and that they talked to each other—in town, in church, at the market—about the pension laws and the availability of pensions for different categories of widows.Footnote 31 These new statutory rights for widows were routinely and prominently reported in newspapers around the country, creating a direct connection between the federal government and individual women, between Washington and scattered localities, between nation and neighborhood.Footnote 32 Pension claims agents—a class of middlemen who, for a fee, assisted both widows and veterans with their military pension applications—disseminated information about widows' new statutory rights while peddling their services.Footnote 33 Widows of soldiers and veterans thus became a community of women—both real and “imagined”—who, by virtue of their former marriage to a soldier or veteran, had been deemed worthy recipients of government assistance.Footnote 34 The widows' pensions identified marriage as a common condition of women's status in, and claims on, the national polity.
The blossoming of the widows' pension system also marked a significant shift in marriage's sociolegal significance, from recognition of widows' claims on society's benevolence to recognition of widows' legal claims on the polity. Congress's rejection of the petition of one Ruth Roberts in 1790 betrays a prevalent late eighteenth-century attitude toward widows' pensions. During the Revolutionary War, Roberts's husband had suffered serious injuries that prevented him from working his farm and ultimately led to his death. In a report recommending that Congress reject Roberts's pension petition, Secretary of War Knox advised that “although the situation of the petitioner may entitle her to the assistance of all humane persons, yet the circumstances of the case do not appear to be such as to constrain the United States to depart from the principles, practice[s], and limitations established by the late Congress.”Footnote 35 Those principles, practices, and limitations did not provide for widows like Ruth Roberts, at least not in 1790.
By 1854, however, pension treatise writers Robert Mayo and Ferdinand Moulton could announce that “widows and orphans, being the natural and civil dependents of their husbands and fathers whilst living, might therefore be considered as justly entitled to the continuance, nay the inheritance, of the right, virtually as a vested right, of [a] pension, at the death of their said natural and civil protectors.”Footnote 36 It had taken national legislators several decades to reach the conclusion that marriage could give large classes of women claims on the public treasure, and to enact and implement a body of laws and administrative processes that facilitated this understanding.
II. The Expansion and Leveling of Widows' Pensions
Why did Congress get into the business of providing military widows' pensions to such a broad cross-section of women? In particular, why the shift from a limited and relatively inexpensive pension system that privileged the widows of officers to one in which tens of thousands of women became entitled to military pensions on the basis of their marriage to a man who had died during his service, or simply served, in the military? Of course, there is no single explanation for such a complex phenomenon. But any answer must be sensitive to political and legal strategies open to women, and to women's very limited formal agency at the time, while also accounting for contemporary changes, pronounced and subtle, in the ideological valences of family and gender. Widows' pension petitions have received little sustained attention, but they are an obvious and important source of evidence of how the financial needs of large classes of widows became a politically legitimate, and at times pressing, subject of federal legislation.
The widows' pension petitions are in many respects a study in the reproduction of gender-conventional norms in public law. As discussed in greater detail below, widows' petitions relied upon, and reinforced, the centrality of men's and women's traditional gendered roles: men's service as citizen-soldiers and women's service as wives and mothers; men's status as heads of household and women's dependency within the household. It would be a mistake, however, to understand widows' pension petitions, or the pensions themselves, as wholly conventional in their ambitions and influence. Wives had long been considered their husbands' dependents under the law, and husbands their wives' protectors and providers. However, before the early nineteenth century, such private dependency had not translated into public support for the vast majority of military widows, even when their husbands died in service to country. The expansion of widows' pensions thus signaled a growing consciousness of wives' domestic responsibilities and dependent status as matters of public, and even national, significance that could, under certain circumstances, justify public material support for widows across the socioeconomic spectrum.Footnote 37
To help understand this shift in the provision of military widows' pensions, and the role of widows' petitions in bringing about this shift, it is useful to compare the experiences of two widows, Susan Decatur and Catharine Barr. Decatur's saga is a story of Old World mores and the patronage politics of Washington, D.C. The experience of Decatur, a woman of extraordinary wealth and political connections, simultaneously sheds light on the significant role of petitioning and reveals Congress's increased skepticism of the hierarchical, class-salient widows' pensions that typified both English and colonial pension laws of the eighteenth century. Catharine Barr, on the other hand, was a woman of little means or apparent influence. Her navigation of the pension system and success (albeit mixed) in obtaining a pension demonstrate the equalization and expansion of the widows' pension system, and the concomitant entrenchment of marriage as a privileged, public institution deep into the ranks of society.Footnote 38
Neither Decatur nor Barr represents the thousands of widows who sought military pensions during the early nineteenth century. Nevertheless, their stories illustrate how women's assertions of formal claims on the federal government helped give rise to a broad-scale system of social provision for widows, shaping—sometimes in unintended ways—women's rights, women's legal consciousness, and, ultimately, women's relationship to the polity.
A. Susan Decatur
In 1806, Susan Wheeler married the young naval hero Stephen Decatur. Although she came from a prominent Norfolk family, her marriage to Stephen catapulted her into the most rarefied social and political circles of the period. When the couple met, Stephen was already well known for his first widely celebrated act of heroism: during the Barbary Wars, he had led a successful mission to destroy a captured American vessel, the USS Philadelphia. Footnote 39 This feat earned Stephen, then 25 years of age, worldwide fame, including the attention of Lord Admiral Nelson, who is said to have commented that it was “the most bold and daring act of the age.”Footnote 40 In addition to the honors and medals, Stephen accumulated another kind of reward in his 10 years of active naval service: prize money.Footnote 41 In 1818, just after he was appointed navy commissioner, the socially and politically ambitious couple built a mansion on President's Park, near the White House, thereby taking their place among the Washington elite.Footnote 42
Theirs was a society of Old World tradition, including—especially among its military members—the honor-bound tradition of dueling.Footnote 43 In 1820, James Barron challenged Stephen to a duel in response to allegedly slanderous remarks he had made concerning Barron's activities during the Chesapeake–Leopard Affair. As an officer and a gentleman, Stephen had little choice but to accept Barron's challenge.Footnote 44 Legend has it that Stephen was perhaps too much a gentleman and, at the critical moment, intentionally aimed low, only slightly wounding Barron. Barron shot to kill. Stephen's honor was preserved, but his life was not. It is testimony to his status as a national hero that President Monroe, the Supreme Court Justices, and most of Congress attended his funeral.Footnote 45
At the moment that she had assumed the role of grand hostess in the nation's capital, Susan Decatur was left a widow. The couple was childless, and under Stephen's will she inherited his entire fortune, including $75,000, the mansion on President's Park, and sundry other properties.Footnote 46 However, within 5 years profligate spending and mismanagement of her fortune left Decatur in what she considered to be dire straits.Footnote 47 She did not qualify for a pension under a general pension statute because Stephen had not died “by reason of a wound received in the line of his duty,” as the contemporary pension laws typically required.Footnote 48 Hence, in 1825, Decatur did what any sensible widow of a famous navy officer steeped in the capital city's distinctive culture of society and patronage would do: she petitioned Congress for support.
Decatur's initial petition was not styled as a pension bill. Rather, she asserted a claim for substantial prize money “in behalf of herself and of the officers and crew” allegedly owed to Stephen and the other men involved in the destruction of the USS Philadelphia in 1804.Footnote 49 Although her petition did not deign to propose a dollar amount for the prize money owed, her advocates in the House of Representatives did: $100,000, a princely sum.Footnote 50 Because Stephen commanded that particular mission, Decatur stood to collect at least $15,000.Footnote 51 Decatur's claim languished for over a decade, during which time she indeed became near penniless, at least by the standards of the American gentry. Between 1825 and 1836, Decatur renewed or resubmitted her petition to Congress several times,Footnote 52 resulting in a raft of committee reports and numerous prolonged floor debates.Footnote 53 In 1836, she was forced to sell the President's Park mansion for $12,000 to pay off her creditors,Footnote 54 but in 1837 her friends in Congress finally prevailed, securing enough votes for a private act for her relief.Footnote 55 The resulting joint resolution was fashioned as a pension in the amount of $600 per year for 5 years and arrearages of nearly $14,000, to be administered by the secretary of the treasury as trustee.Footnote 56
One might think that, after 11 years of her seeking relief from Congress, the financial security Decatur had achieved by obtaining a private pension would bring closure to her pursuit. On the same day that Congress passed the joint resolution for Decatur, however, it also enacted a general pension law granting a lifetime pension to every widow of “any officer, seaman, or marine” who died while “in the naval service.”Footnote 57 In theory, Decatur was also eligible for a pension and substantial arrearages under this unusually broadly worded widows' pension statute which, unlike most traditional war widows' pension statutes, was not restricted to widows whose husbands had died of injuries received in battle.Footnote 58 Never one to shy from asserting her rights, Decatur claimed her private pension from the secretary of the treasury and also applied to the secretary of the navy for a pension under the general law.Footnote 59
Decatur's dual applications presented a serious legal quandary. It was true that, at least by the letter of the law, Decatur was entitled to pensions under both the private and public acts. But Secretary of the Navy Mahlon Dickerson would not tolerate double dipping. After seeking the formal opinion of the attorney general, Dickerson wrote to Decatur personally, informing her that she could choose to collect under the public act or the private act, but not both.Footnote 60 Under protest, and “without . . . waiving her claim to the latter,” Decatur chose to receive a pension under the public act, which provided generous arrearages and also carried an annual pension of $600 for life (rather than 5 years).Footnote 61
But Decatur did not relent. Hopeful that the appointment of her husband's friend James K. Paulding as secretary of the navy would increase her chances, Decatur renewed her claim under the private act in 1838. Paulding denied her claim.Footnote 62 Decatur responded with an aggressive and very unusual course: she sued in federal court, seeking a writ of mandamus “to be directed to the said James K. Paulding, Secretary of the Navy of the United States, commanding him, that he shall fully comply with, obey, and execute, the aforesaid resolution of Congress, of the 3d of March, 1837, by paying your petitioner . . . the full and entire amount of the aforesaid sum or sums of money, with interest thereon,” which, according to her calculation, totaled $18,597.Footnote 63 Decatur's efforts in federal court were also fruitless. In an opinion by Chief Justice Roger Taney, the Supreme Court found that the duties imposed on the secretary of the navy by congressional acts such as the one that awarded Decatur a private pension were “not mere ministerial duties” but “executive duties.”Footnote 64 The “interference of the Courts with the performance of the ordinary duties of the executive departments of the government,” Taney reasoned, “would be productive of nothing but mischief.”Footnote 65
For Decatur, such interference with the “duties of the executive departments” would produce substantial income, not mischief. She continued to seek payment of the private pension by petitioning Congress. Her efforts to secure the private pension must have become even more urgent when, in 1841, Congress took the exceptional step of repealing the general pension law enacted on March 3, 1837 — the law that Decatur had elected as the basis of her pension when she was given the choice by Secretary Dickerson.Footnote 66 Congress repealed that general law for reasons only indirectly related to Decatur's case, but the repeal left Decatur pensionless and, if her champions in Congress were to be believed, relatively penniless.Footnote 67 In 1856, after a failed effort to pursue her case in the newly created Court of Claims and several resubmissions of her petition to Congress, Decatur finally convinced the legislators to reinstate her private pension, but without the substantial arrearages she sought.Footnote 68 She died 4 years later.
B. Catharine Barr
Catharine Barr was a contemporary of Susan Decatur and she also pursued a pension from the federal government for much of her adult life.Footnote 69 Beyond this similarity, however, Barr and Decatur had little in common. If Decatur's story resonates with aristocratic sensibilities and entitlements, Barr's story illustrates the new world order of military widows' pensions: a broad-scale, relatively equalized system of social provision for widows intended primarily as a form of financial support for widows in need, rather than a status-based reward. Barr's experience navigating the pension system was far more typical of the experiences of the thousands of women who sought pensions during this period. Perhaps most significant, her primary (and perhaps only) mode of seeking a pension was not by direct petition to Congress, but by way of an administrative claim filed with pension administrators in Washington, D.C.: low-level bureaucrats in the War Department Pension Office who processed thousands of widows' claims every year.Footnote 70 But Barr's claim was exceptional in one regard: Barr was fully literate, and though she had occasional help, it appears that she represented herself in most of her efforts to secure a pension.Footnote 71 Barr's letters to various administrators therefore provide a fragmented but nevertheless first-person account of her navigation of the federal pension system, and of her personal understanding of widows' pensions and their meaning for women.
Barr was born in 1796 and from her correspondence we learn that she married her “young and Beloved husband” George Bundick when she was 16 or 17 years of age.Footnote 72 From that point forward, however, Barr explained in an 1842 letter to pension administrators, “my prospects in life have been Overcast.”Footnote 73 Bundick was killed in 1814 “in an engagement between an English Brig and the Privateer Schooner Surprise of Baltimore.”Footnote 74 After his death, and thanks to a series of statutes that made pensions available to War of 1812 widows regardless of their husbands' rank, Barr “received a small [annual] pension of 72-Dollars for five years or as long as I remained his widow.”Footnote 75 By the time Barr was 18 years old, she was a pensioned widow.
At this point, there is a significant gap in Barr's account to the pension administrators. She does not tell them how long she collected the pension she received as Bundick's widow, but other records suggest that she married again in 1818,Footnote 76 an act that would have terminated her pension, if it had not already expired. Most widows' pensions terminated if and when the widow remarried, under the presumption that the widow would be supported by her husband, and hence no longer needed government assistance.Footnote 77 But Barr's experience demonstrates that, for women, the material security provided by marriage was both contingent and uncertain. By 1823, she appears to have been widowed again, but she was remarried in April of that year to Captain Charles Hobday.Footnote 78 Widowed again and almost 39 years old, in 1835 Barr married a navy quartermaster, William Davidson.Footnote 79 Within 1 year of their marriage, Davidson died in a navy hospital of a “profuse hemorrhage from the lungs” that had developed during one of his voyages.Footnote 80 In 1836, Barr explained in a letter to the secretary of the navy that Davidson's death “cut me of the little Dependance I had and my health will not allow me to work very hard to support my self.”Footnote 81 More important for her pension eligibility, there was no doubt that Davidson had died “in the publick service,” and hence that his widow was eligible under an existing general pension statute.Footnote 82 Pursuant to the Act of June 30, 1834, Barr collected an annual pension of $72 following Davidson's death. In March 1837, the 1834 Act was replaced by another general pension statute: an act that awarded navy widows a lifetime pension.Footnote 83 In 1837 or 1838, Barr began receiving the same modest amount pursuant to the new pension statute, almost certainly the Act of March 3, 1837.Footnote 84 (Coincidentally, this was the same statute under which Susan Decatur, as the widow of a high-ranking officer, collected an annual pension of $600 and arrearages of nearly $14,000.)
In 1840, Catharine married James Barr, thus forfeiting her pension.Footnote 85 Nevertheless, 2 years into her marriage to James, she sought renewal of her widow's pension. “[M]y object,” Barr explained, “is to ascertain if in any case you have the power to continue the pension allowed the widow of an Officer or Seaman who dies in the naval service . . . .”Footnote 86 With no mention of her marriage to James, she explained that “poverty and ill health forces me to turn to my country and ask as a Boon that the pension allowed me at the death of Mr. Davidson may be continued to me a few years that I may enjoy through the liberality of my country a few of the comforts of life wich advancing age and a sickly constitution stand so much in need of.”Footnote 87
In the final line of the 1842 letter, Barr spoke of a congressional appeal by way of petition: “[T]he clerk of the pension office here promised me he would write for me or send to Congress last session [but] I have not heard that he did owing to some Difficulty on his part at the office.”Footnote 88 It is not clear whether Barr ever petitioned Congress directly. Had she done so, Barr would have taken a path that was used by many widows, sometimes with success, as discussed in greater detail below. But whatever the form or status of her appeal in 1842, her efforts were unavailing.
In 1858, now approximately 61 years old and writing from Mobile, Alabama, Barr again renewed her quest for a pension, making clear what had been implicit in her 1842 letter to the pension administrators: although Barr had remarried, her husband James had given her little financial support. “[M]y husband has neither been with me or given me one dollar for my support since 1849, and I know not his whereabouts.”Footnote 89 She added, “I hope sir if possible you will consider all this I am Old now and cannot want a great while longer.”Footnote 90 Barr's plea for a pension was both emphatic and desperate: “I think it is no more than right that our Country should allow us that mite for our own Exclusive use and for no other, there are many of us would be thankful for it in our Old age. I for one,” she implored, “have no Dependence on Earth only what comes through my relations.”Footnote 91
Barr's prediction of a precipitous death seems to have been overstated, however, for in the late 1860s we find Barr back in Brooklyn, making one final attempt to secure the pension she had been awarded based on her brief marriage to William Davidson. She renewed her application to the Pension Office, this time with the help of a pension claims agent, noting that her husband James had died.Footnote 92 But the death of a subsequent husband was not generally grounds for renewal of a pension, and a notation in her file indicates that her efforts were once again fruitless: “Application . . . rejected the widow has remarried.”Footnote 93
Barr's letters to various pension administrators reveal that she, like Decatur, pursued a pension with a kind of tenacity and endurance that may seem surprising to us today. However, although Barr and Decatur were exceptional in many regards, it was fairly typical for widows to pursue pensions over a period of many years, even decades. It is also significant that in her letters, Barr demonstrates her knowledge and consciousness of her rights as a widow, and, in particular, of these rights as they related to the federal pension system. Through her pursuit of a widows' pension—from 18 to 71 years of age—Barr acquired a fairly detailed understanding of the inner workings of the pension system's procedures. In 1836, soon after William Davidson died, Barr wrote to the navy hospital seeking a pension, and was promptly directed to the Navy Department and provided with “a newspaper containing the forms necessary in this proceeding.”Footnote 94 Eager for her pension, Barr immediately wrote to the Navy Department, providing the necessary evidence and certifications.Footnote 95 Over the years, Barr's letters recorded her familiarity with the various pension statutes, such as the fact that some provided for pensions for life and others for 5-year terms. She knew that remarriage meant an end to any widow's pension, a fact that she especially lamented after her marriage to James Barr. When she asked for her pension to be reinstated despite her remarriage, she understood that she was asking for an exception to the general rule. She also understood that pension administrators were hesitant to create something called “precedent” that another widow might use to support a claim. For a woman of few means and with little assistance, Barr knew a great deal about the operation of the pension laws.
Barr's letters also reveal that she understood the merits and equities of her pension claim in light of her conviction that financial need should, and sometimes did, serve as a justification for government assistance for widows. “I have understood,” Barr wrote in 1842, “there was something Extra allowed for those who was killed or wounded in the time of the war, and as I understand you have a kind and generous feeling for the poor of your Country, I have taken the liberty of asking for information from you and I feel in hopes sir you will not deny it.”Footnote 96 Equally notable was that Barr knew that the widows' military pension system favored wealthy women—the Susan Decaturs of the world—and believed that the system should be used to help needy women instead: “When i reflect on the facts that there are many rich in this world . . . who receive their pension that can well do without it, when the poor woman who marries to find herself a home and then has to work hard for littel nescisaries she may want, . . . could be allowed to retain our pension I mean the poor like myself for our own use it would be a great comfort as a poor woman cannot expect to marry a rich man . . . .”Footnote 97
III. Widows' Petitions as Legal and Political Process
Women's petitioning activities in the early nineteenth century are not news to students of the period. We have long known about reform-oriented petitioning campaigns, such as those led by abolitionist and anti-removal organizations.Footnote 98 In light of the expansion of white manhood suffrage in the early nineteenth century, however, women's petitions sometimes appear to have operated as a degrading substitute for the ballot. Discursive conventions marked the petition as a political-legal tool of the early modern subject, rather than the modern citizen. As Linda Kerber has suggested with respect to women's petitions of the Revolutionary era, petitioning was a particularly suitable mode of political behavior for women because the petition “begins in the acknowledgement of subordination . . . . The rhetoric of humility is a necessary part of the petition as a genre, whether or not humility is felt in fact.”Footnote 99 As a generic form, the petition predates a progressive-liberal tradition in which disgruntled groups declare their rights, a tradition that some American women joined in 1848 with the Declaration of Sentiments and Resolutions. Seen in this light, the experiences of Decatur and Barr would seem to be best understood as individual legal episodes of little significance to the grand arc of women's legal history, or to the emergence of a form of social provision that remains vital in American law and social policy. But a closer look at the evolution of military widows' pensions reveals the centrality of widows' petitions to the development of the first system of centralized public marriage-based entitlements.
Despite the humble conventions of the petition, in the early nineteenth century it provided a means by which individuals could, and regularly did, assert formal claims on the state and federal governments. Men and women petitioned Congress for compensation when the government destroyed their property, or when troops consumed their provisions or livestock.Footnote 100 Disasters both natural and man-made precipitated waves of petitions for emergency relief.Footnote 101 Government officials frequently petitioned Congress for indemnification after being found liable for tortious conduct in the execution of their duties.Footnote 102 Veterans petitioned Congress for pensions and land bounties,Footnote 103 and towns petitioned Congress for postal routes and post offices.Footnote 104 Women petitioned state legislatures for all manner of relief, including divorce, protection of their assets from their husbands' creditors, and recognition of feme sole status for purposes of trading.Footnote 105 On the more altruistic end of the spectrum, women petitioned for recognition and incorporation of benevolent societies, and for appropriations of cash and land subsidies to support the societies' missions.Footnote 106 When widows petitioned Congress for pensions, they engaged in a well-established, and presumably well-understood, legal process.
By the 1810s, widows seeking pensions petitioned Congress in two ways. A widow who clearly did not qualify for a pension under one of the general pension laws would often petition directly for a bill for private relief: an individual appropriation. That was Susan Decatur's approach. However, many of the widows who petitioned Congress for a pension had already sought one using the administrative claim procedure that had been established to implement the general pension laws. That was Barr's path to a pension. If a widow's claim was denied by the administrators, she could appeal to Congress by petition—an option used by hundreds of widows, perhaps including Barr.Footnote 107
Regardless of the route to Congress, a widow rarely traveled it alone. A widow such as Decatur received the assistance of a network of men in Congress and the executive branch,Footnote 108 but widows of little means also received significant help from pension claims agents, family members, neighbors, and, occasionally, town officials or groups of supporters. Probably because of the complexities involved in petitioning for a pension and the limited literacy or illiteracy of some petitioners, widows' pension petitions, like veterans' pension petitions of the same period, were often written by another—usually the agent—although they were always necessarily signed or marked by the widow herself.Footnote 109 It would be a mistake, however, to dismiss the widows' involvement in the petitioning process.Footnote 110 Others undoubtedly helped widows, but community involvement with a widow's pension application or petition was also a matter of administrative necessity, as the general pension statutes required that the widow gather written testimony from neighbors and family members who had personal knowledge of particular facts relevant to the widows' eligibility.Footnote 111 Moreover, these petitions usually were not the result of organized collective action of the sort that was obviously behind abolitionist and anti-removal petitions. As discussed below, widows sometimes petitioned in small groups, and those group petitions appear to have been effective in drawing attention to the merits of widows' claim on the public treasure. However, the vast majority of the widows' pension petitions were submitted by individual widows seeking individual relief.
In short, most widows' pension petitions demonstrate neither heroic individualism navigating the legal system nor reform-style organization. Rather, they are evidence of widows' participation in, and active utilization of, a well-established process of seeking relief and recognition of legal rights, old and new, from the national legislature.Footnote 112 Widows' petitions reflect their understanding—which others shared—that it was right and proper for them to reach out to the federal government for monetary assistance, and that the federal government should provide that assistance. And, as shown below, although widows' petitions were not always successful in the immediate term, collectively and over time these petitions prompted Congress to provide pensions for military widows.
A. Widows on the National Legislative Agenda
Widows' petitions influenced the legislative development of the military pension system by ensuring that widows' needs—and their claims on the polity—were on Congress's agenda. This may seem like a minor point, but in the world of legislative process agenda setting was a crucial step in the transformation of an idea or a need into a codified, enforceable right or duty. In this respect, the widows had legislative custom and the federal Constitution on their side. Under the First Amendment, widows had a right to petition Congress. That right did not ensure that their petitions would be answered affirmatively, or even that they would be formally “submitted” through congressional procedures, but it undoubtedly imbued national legislators with a felt obligation to consider citizens' petitions, including those from widows.Footnote 113
Other aspects of the legislative process affected Congress's response to widows' pension petitions. By the 1810s, Congress had developed several standing committees to investigate the merits of military pension petitions.Footnote 114 Although the membership of committees varied slightly from session to session,Footnote 115 the committee system brought some measure of consistency to the petition review process. A relatively small, stable group of legislators evaluated individual widows' petitions. Thus, Decatur's petitions were vetted by the same subset of legislators who assessed the merits of petitions submitted by widows of lesser means and status.
With this legislative apparatus in mind, one can trace the influence of widows' petitions on the enactment of two important general widows' pension acts in 1836. In March of that year, Congress enacted a general pension statute that altered the status quo with respect to pensions for soldiers' war widows. Prior to 1836, Congress had received many pension petitions from widows of soldiers and seamen killed in service,Footnote 116 and starting in the 1810s Congress enacted several general pension statutes for the benefit of such widows.Footnote 117 Nevertheless, the default rule remained that only officers' wives were granted pensions if their husbands died in battle.Footnote 118 Then, in 1836, in a direct response to “a petition in behalf of the widow and children of Major Dade, Captain G. W. Gardiner, Lieut. Bessinger, and other such widows and children of officers, non-commissioned officers and men,” Congress abandoned the piecemeal approach.Footnote 119 Dade, Gardiner, and Bessinger had been killed along with 105 other men in a widely reported battle with the Seminole Indians in Florida.Footnote 120 Petitioners implored Congress “to alleviate their distresses by feeding the widows, and enabling the mothers to feed and educate their children.”Footnote 121 A lengthy committee report reviewed the long history of awarding pensions to officers' widows as a routine matter but to soldiers' widows on an ad hoc basis only. Invoking and reaffirming the centrality of the citizen-soldier ideal for men and married women's dependence, the report concluded that widows' pensions (for all ranks) “should be permanent . . . as to give a pledge to the citizen soldier, if he dies in the service, his wife and children should not beg their bread.”Footnote 122 Approximately 2 weeks later, Congress enacted a general pension statute that changed the default rule for the military establishment by providing for widows of “privates,” as well as “officers [and] non-commissioned officers” who died in the line of duty.Footnote 123
A similar pattern of petitioning precipitated the enactment of widows' service-based pensions for large classes of aging widows of veterans of the Revolutionary War, also regardless of the veteran's rank. In the late 1820s, motivated in part by Congress's provision of service-based pensions for Revolutionary War veterans,Footnote 124 the aging widows of Revolutionary War veterans began petitioning Congress in more substantial numbers. Most Revolutionary War widows' petitions were submitted by individual widows seeking individual relief,Footnote 125 but on at least three occasions, small groups of widows petitioned Congress seeking pensions, not just for themselves, but for all widows who had been married to Revolutionary War officers who had survived the war. Two of these petitions were signed by a small group of New England widows, including Caroline Langdon Eustis, Tabitha Tenney, Elizabeth Adams, Lydia Fogg, and Mary Emery.Footnote 126 As the widow of William Eustis, secretary of war under James Madison and governor of Massachusetts, Caroline Eustis was the most socially elite of the signatories,Footnote 127 but correspondence between Eustis and Tenney, another signatory, reveals that Tenney was the organizer and likely the author of the petitions.Footnote 128 In 1801, while living in Washington, D.C., with her husband Representative Samuel Tenney, Tabitha Gilman Tenney wrote the best-selling novel Female Quixotism, Exhibited in the Romantic Opinions and Extravagant Adventures of Dorcasina Sheldon.Footnote 129 Twenty-eight years later, Tenney was a 67-year-old widow living in Exeter, New Hampshire. If Tenney's novel can be read as a critique of contemporary patriarchal norms, social and legal, that channeled American women into marriage and demoralizing domesticity,Footnote 130 her widows' pension petitions implicitly reaffirmed marriage as key source of women's status in the polity. But whereas Tenney's petitions undoubtedly based the widows' claim to public monies on their marriages to worthy husbands, rhetorically, the petitions emphasized the widows' own wartime contributions. The first petition, submitted in 1829, explained “[t]hat in the arduous struggle for the Independence of these American States, they shared with their now deceased partners in many of the Perils, and suffered with them in many of the hardships, incident to that . . . period.”Footnote 131 Noting that “some of ” the widows were in “humble circumstances,” they sought “the assistance of their country for support.”Footnote 132
The same year, 1829, a small group of widows from New Jersey—Mary Hunter, Susanna Armstrong, Susan Dayton, and Sarah Cumming—also submitted a petition seeking service-based pensions as Revolutionary War widows.Footnote 133 They, too, were widows of officers and they also drew attention to women's wartime suffering and labors as justification for widows' pensions.Footnote 134 Although the widows did not “partake of the dangers and hardships and privations of their husbands,” they explained, “it was their lot to endure constantly the far more exquisite pains which the heart of woman feels when he to whom she is connected by the nearest and most tender ties is engaged in battle . . . .”Footnote 135
Despite these particular widows' relative access to power, neither of these petitions resulted in a private act for any of the petitioning widows, nor did they result in an immediate change to the general pension laws. In 1829, the House voted in favor of a bill that would have provided pensions to “each surviving widow who was, at the close of the Revolutionary war, the lawful wife of a[n] . . . officer, musician, or private of said war,” but the bill never made it out of the Senate.Footnote 136
Undeterred by her first petition's failure, Tabitha Tenney tried again. In November 1829, Tenney wrote to Caroline Eustis soliciting her signature on a second pension petition. In the letter, Tenney described the fate of the first petition “she caused . . . to be written . . . in behalf of most of the surviving widows of the officers of the revolutionary war”Footnote 137 and then declared her resolve. “I am now determined to make another attempt, & I inclose a petition for your signature, if you judge proper to join me in it.”Footnote 138 Eustis obliged and sent the signed petition back to Tenney. Tenney gathered the signatures of all but one of the widows who had signed the first petition and then, several weeks later, wrote to Eustis seeking additional help. Confessing that she “ha[s] now scarcely a single acquaintance in either house,” as it had been “so long since my husband was in Congress,” Tenney asked Eustis to use her connections in Congress to ensure that the petition was presented effectively: “[U]pon the supposition that you have among the members a number of friends & acquaintances, I have judged it best to send the petition again to you & request you forward it to some member of the house who is capable of speaking & of informing our claim.”Footnote 139 Tenney suggested that Eustis enlist the help of Massachusetts senator Daniel Webster. A few weeks later, on January 18, 1830, Webster formally presented the New England widows' second petition in the Senate.Footnote 140 Despite Eustis's connections and Tenney's determined efforts, however, their second petition also failed to yield an immediate result.
Although Congress did not grant these widows' petitions, it would be wrong to conclude that the petitions were ineffectual. All three of these group petitions—as well as a raft of individual widows' petitions—drew national lawmakers' attention to the claims of Revolutionary War widows and inaugurated a process that, within a few years, resulted in the creation of service-based pensions for large classes of aging widows. Committee reports issued on Revolutionary War widows' pension petitions of the early 1830s reveal legislators' hesitance to continue providing ad hoc private relief for widows, and their inclination to provide broad-scale, systematic relief instead. For example, a committee report issued on the New England widows' second petition recommended against acting on it because the committee members could not “consider this case as embraced within the meaning of any of the [general] pension acts.”Footnote 141 However, the report was not without hope, noting that “the case of the petitioners presents a very strong and powerful appeal to the justice of the Government.”Footnote 142 Three years later, the petition of the Revolutionary War widow Anne Royall—another widow with significant connections in WashingtonFootnote 143—prompted the House Committee on Military Affairs to state that, “frankly . . . while they cannot recommend a special law for any particular widow of a particular officer,” nevertheless it was “worthy of the most serious consideration whether a general provision ought not to be made for all the surviving widows . . . of the revolution.”Footnote 144 The petitions submitted by widows such as Eustis and Royall—well connected in Washington's world of patronage—were considered along with the petitions of widows of lesser means and status.Footnote 145 Together, these widows' petitions focused Congress's attention on the issue of service-based pensions for aging widows of the Revolutionary War.
In July 1836, in response to “several petitions, memorials, and resolutions” by widows seeking service-based pensions, the House Committee on Revolutionary Pensions returned a favorable report, concluding that “the wives of those persons engaged in the revolutionary struggle” were “entitled” to pensions.Footnote 146 This report picked up the logic of petitions such as those submitted by the New England and New Jersey widows, which called attention to women's wartime work and privations. When men left for the battlefield, the report explained, “the labors of the hardier sex devolved upon females, and the services and sufferings were, in very many instances, equally shared.”Footnote 147 The report continued, “It is rightly urged that the wife has an interest in her husband's services, and her claim to partake of the recompense will not be denied.”Footnote 148 On July 4, 1836, Congress took the significant step of enacting a general pension law for widows of Revolutionary War veterans—from high-ranking officers to privates—who had married their husbands prior to or during the war.Footnote 149
Once Congress had enacted a general pension law, eligible widows applied for pensions using an involved procedure administered by the Pension Office, which was first housed in the Department of War and then, starting in 1849, in the Department of the Interior. But the delegation of such determinations to administrative agencies did not stanch the flow of widows' petitions to Congress. Widows, usually acting individually, continued to petition Congress for material support, either directly or by way of an appeal from the Pension Office. The number of widows' pension petitions varied significantly from Congress to Congress. For example, during the Twenty-First Congress (1829–1831) national legislators entertained the pension petitions of at least 78 widows; during the Twenty-Fifth Congress (1837–1839) they considered at least 424 widows' pension petitions; during the Twenty-Sixth Congress (1839–1841) they considered approximately 396 widows' pension petitions; and during the Thirty-First Congress (1849–1851), they considered at least 182 widows' pension petitions.Footnote 150 Despite the ebb and flow, widows' petitions were a constant feature of Congress's agenda, especially in the 1830s and 1840s.
Widows' petitions prompted Congress repeatedly to reconsider the lines it had drawn between the eligible and the ineligible.Footnote 151 In 1839, the House Committee on Revolutionary Pensions reported on the petition of Margaret Wade. The service-based widows' pensions provided by the July 4, 1836 Act were available only to widows who had married a Revolutionary War officer or soldier “before the expiration of the last period of his service.”Footnote 152 In 1837, Congress extended that Act to include all Revolutionary War widows who had married a soldier or veteran prior to January 1, 1794.Footnote 153 Widow Wade had married a Revolutionary War veteran in June 1794, only 6 months after the cutoff date. The Committee could articulate no principled distinction, and instead declared that “the committee think the distinction . . . invidious and unjust.”Footnote 154
Widow Wade's petition did not yield a direct legislative response or result in a pension. As was often the case, lawmakers were hesitant to “legislate for any particular cases,”Footnote 155 but as early as 1837 they had expressed “confidence that, by some general provision, the benefits of the [1836] act . . . will be extended so as to embrace the cases of all persons who are now the widows of those who served in the revolutionary war.”Footnote 156 They were right. Over the years, the pressure of petitions such as Widow Wade's pushed Congress to expand eligibility criteria, resulting in a steady enlargement of the scope of the July 4, 1836 Act. By 1853, virtually any woman who had ever been married to a Revolutionary War veteran was eligible for a service-based pension.Footnote 157 The result: in the early nineteenth century, tens of thousands of widows were placed on the federal pension rolls.
B. Leveling Up: Every Widow's Pension
Although it is evident that widows' petitions put widows' pensions on the legislative agenda, this alone cannot explain why, slowly but surely, Congress responded to widows' petitions through the enactment of general pension statutes for large classes of widows. It is also not enough to observe that early nineteenth-century widows' pensions resembled relief provided by a growing number of charitable organizations and societies to widows and children in the same period.Footnote 158 Certainly, widows' pensions and charitable relief were born of a similar benevolence, and legislators frequently used the language of charity when describing widows' pensions; however, military widows' pensions were not charity. The pension statutes created legal entitlements—rights—for widows to be paid out of the public coffers. And in this regard, military widows' pensions should be understood as part of a larger shift in the early nineteenth-century American legal landscape: the significant expansion of the social welfare function of marriage.
Under the doctrine of coverture, marriage stripped women of many of their property rights, thus usually leaving them disempowered financially during marriage, and often in dire straits if they were widowed.Footnote 159 Traditional marriage law and related legal doctrines attempted to compensate for married women's legal disabilities by enabling or requiring the husband, or his estate, to provide a modicum of financial support for the wife or widow. For example, under the doctrine of necessaries, a husband could be held liable for essentials, such as food and clothing, purchased by his wife on credit.Footnote 160 Dower, the widow's right to one third of her husband's real property, had long provided limited financial resources for widows of propertied husbands.Footnote 161 In addition, fathers and husbands of means sometimes used trusts or separate estates to insulate their daughters and wives from the harshest consequences of marital property laws.Footnote 162
In the early nineteenth century, however, as America's economy became increasingly industrialized and dominated by commercial markets, it became evident that whatever financial protections these traditional legal devices had provided for married women, they were inadequate during both marriage and widowhood. Industrial accidents claimed the lives of husband-breadwinners, leaving their widows and children with little in the way of tangible assets for support.Footnote 163 For a host of reasons, in the first half of the nineteenth century, dower began waning as a source of support even for the women whose interests it had generally served.Footnote 164 And the doctrine of necessaries, never a particularly robust source of economic stability for wives, did nothing to protect family assets—and married women and their children—from a husband's creditors, whether the husband was alive or dead.
In the early nineteenth century, several other, newer legal devices emerged that were intended, in part, to provide financial protection for a much broader category of married and widowed women, while leaving the basic principles of coverture intact. Several state legislatures enacted intestacy provisions that gave widows an “elective share” of their deceased husbands' assets (both real and chattel property), rather than the traditional promise of dower.Footnote 165 From the 1830s onward, state legislatures also enacted married women's property acts. At this early stage, these acts served as a kind of quasi-bankruptcy protection for families by shielding a wife's assets from her husband's creditors.Footnote 166 Married women's property acts thus made available to wives of all classes a measure of protection that, until that time, had generally been available only to wealthy wives and families that had the sophistication and means to create legally enforceable separate estates.Footnote 167 In the 1840s, many state legislatures enacted statutes intended to facilitate the growth of private life insurance—the goal of which was to protect widows and orphans from financial calamity—by loosening coverture-based restrictions on a married woman's ability to contract for insurance on her husband's life.Footnote 168 In the same decade, state legislatures also began to enact homestead exemption statutes, which protected the family home from creditors.Footnote 169 These legal developments expanded the social welfare function of marriage by protecting family assets from the risk of industrial and financial calamity that seemed to have become an inherent part of American life.
Animated by similar concerns, developments in tort law took the social welfare function of marriage one step further by creating the possibility of third-party liability for widows' material support. As John Witt has shown, starting in the 1840s, state legislatures enacted the first wrongful-death statutes that provided a cause of action for widows of men killed in accidents.Footnote 170 This new claim gradually replaced the common law rule that had allowed the master to sue for the loss of services of a household dependent, but had not allowed a dependent, including a widow, to sue for the loss of support upon the husband-masters' death.Footnote 171 The wrongful-death statutes that replaced the “loss of services” model were decidedly gender based, as they provided a tort remedy for widows but not for widowers.Footnote 172 Significantly, these statutes provided for widows not by shielding existing family assets, but by requiring tortfeasors, especially industrial employers, to pay damages. As a consequence, developments in tort law helped to ensure a baseline financial security for a class of women for whom it had generally provided very little: the widows of workingmen, for whom legal protections of family assets were generally ineffectual, as such women's families had few, if any, assets to protect.Footnote 173
There is no direct relationship or perfect parallel among these various doctrinal developments, but all of them provided for the material interests of a significantly larger class of women than had previously been the case, and did so by attaching new legal rights and liabilities to marriage. It bears emphasizing, moreover, that even as these various doctrines expanded the legal rights of widows, they did not challenge coverture or its ideological precepts concerning women's status within the marital relationship or in society. To the contrary, all of these doctrines and legal entitlements built on and reinforced increasingly prevalent gender-based social norms: men's role as the breadwinner, and women's role as the domestic helpmate.
Military widows' pensions were part of this trend, and extended it one step further. Changes to intestacy, property, contract, and tort affected the liabilities and rights of private parties, but widows' military pension statutes recognized public liability for the support of a significant class of widows. Unsurprisingly, some legislators were skeptical of the notion that a widow's legal dependence on a deceased veteran warranted public liability for her support. As an initial matter, some legislators believed that most military pension statutes were unconstitutional, including veterans' service-based pension statutes and widows' pension statutes.Footnote 174 When confronting such resistance, veterans seeking pensions during this period could at least point to their service to the nation as a basis for the country's “debt” for their support.Footnote 175 Widows had a more difficult task because, at least according to some legislators, marriage to a military man was, or should have been, sufficient to provide for a wife's or widow's material needs. In 1843, Senator George McDuffie of South Carolina queried “upon what principle of policy or justice a claim could be set up by a widow, . . . unless it were to be shown that she had participated in the struggle, and had been subjected to the privations incident to the time.”Footnote 176 In the face of such logic, it was not enough for widows to assert their legal dependency as justification for a pension. They needed to explain how their role as domestic helpmate of a man who served the country in battle warranted government support.
This may explain why, even as widows drew attention to their husbands' services as a basis for their claims, they also used their petitions to provide legislators with firsthand testimonies of women's own services to country and husband, and of the poverty that frequently befell widows. We see this in the petitions of relatively high-status widows, such as the New England and New Jersey widows, which emphasized the widows' services, and it resonates throughout the pension petitions of common women. Widows seeking pensions often noted the service they performed and the costs they incurred raising their children. The plea that Congress should “enable the mothers to feed and educate their children”Footnote 177 was commonplace in petitions submitted by younger widows, but older widows also reasoned that their earlier services as mothers justified a widow's pension in old age. Two decades after her husband's death in the War of 1812, Thankful Randall sought his pension, in part on the grounds that she had born “the expense of bringing up the children, and she is meritoriously entitled to [her deceased husband's] half-pay.”Footnote 178 Similarly, in 1840, Frances Barr petitioned Congress for “remuneration,” explaining “that her late husband was a soldier in the late war with Great Britain, and during his absence of three years and seven months, she was compelled to support four children by her own labor.”Footnote 179 And at 72 years of age, Hannah Duboise petitioned Congress, explaining that after her husband died in the War of 1812 she had supported her two small children, but now she “cannot support herself any longer, and asks for relief from her country.”Footnote 180 Citing a supporting declaration from her town's overseer of the poor, the committee recommended that Congress grant Duboise's request.Footnote 181
Widows—those with and without children—also did not hesitate to argue that their poverty was caused by women's particular vulnerabilities in and out of marriage. In an 1824 petition, Nancy Lancy was candid about women's dependency on their husbands for financial support, and widows' limited options for self-support. Lancy's husband had died in the War of 1812. She was awarded a pension in 1816, which was then extended in 1819.Footnote 182 In the early 1820s, anticipating the expiration of her pension, and “intirely ignorant that it would be extended a second period, she married a man who she calculated would support her.”Footnote 183 Unfortunately for Lancy, he was “soon after lost at sea, having lived with your petitioner only eight days. She is now left depressed with poverty, and afflicted with very slender health, and is, she humbly hopes, as much an object of the protecting care of the Government, as when her first husband fell in defending his country's flag.”Footnote 184
Such pathetic pleas drew on the contemporary trope of the “poor widow” and became part of the generic convention of the widows' petition. But the commonplace nature of widows' pleas of poverty should not diminish their significance. In a world in which military widows' pensions traditionally had been a class-salient form of reward for widows of officers presumptively engaged in heroic service, widows' pleas of poverty collectively reflected and informed a new way of reasoning about widows' entitlement to government relief, and about widows' particular vulnerability to poverty. In this respect, widows' pension petitions helped prompt a shift from treating military widows' pensions as “inducements” for heroic military service to “charity . . . extended to the bereaved widow[s].”Footnote 185 That shift was significant in its own right, as it reflected an emerging way of reasoning about poverty as a legitimate basis for public expenditure and, as a consequence, helped precipitate the extension of widows' pensions to common women.
We hear the resonance of common women's petitions in legislative debates held in 1818, during a period of substantial leveling and expansion of traditional war widows' pensions.Footnote 186 “Equality, in the contributions for the public service, is one of the first principles of our Government,” explained Representative (and future President) William Harrison of Ohio in support of a bill that would have extended the duration of War of 1812 widows' pensions.Footnote 187 “The public burdens are to fall equally upon all in proportion to their means. No individual, and no family, are to furnish more than their just share, either of money or of personal service, without an equivalent.”Footnote 188 To underscore this point, Harrison imagined a horde of petitioning widows marching on Washington, children in tow:
Suppose the many hundred widows and orphans, the relicts of the late war, were to be brought before us . . . . The thing cannot be–but I beg gentlemen to give some scope to their imaginations, and persuade themselves that they really see it. Here a venerable matron, followed by a large family of children; there, another, in the full bloom of beauty, a widow through choice and under a sacred vow that the hero who had once filled her arms should never be supplied by another; the lovely boy she holds by the hand was an orphan before he saw the light . . . .Footnote 189
Earlier that year, Representative Richard Johnson of Kentucky had employed a similar rhetorical device in support of a bill that would have extended the duration of an existing widows' pension statute. “Bring this unfortunate groupe in review before us; let the image, not of imaginary but of real bereavement, and consequent distress, be drawn in its full magnitude before our eyes. Behold fourteen hundred and fifty-four weeping widows, and more than a thousand helpless orphans, in all the despondency of wo . . . .” Footnote 190 Johnson then provocatively suggested that the “destitute female, the widow, would have to languish and die, or, by seeking the bounty of the world, must subject herself to insults, and, in many cases it would lead to more disastrous consequences.”Footnote 191
For Johnson and Harrison, the injustice of the current system lay not only in the failure to provide for widows whose husbands had “sacrificed their all” to the country, and who were frequently left in pinching poverty. The system already pensioned widows of officers, or, worse, allowed men of means to escape military service entirely, creating a system of privileged citizenship for wealthy men and their families that was decidedly unrepublican. The “rich married man,” explained Harrison, “is allowed to furnish a substitute—the poor married man, unable to hire one, is obliged when called upon to serve in person. As the poor, then, fight all your battles, which is, perhaps, unavoidable, it is just and right the consequences of their service should fall as lightly as possible on their families.”Footnote 192
Harrison's speech was part of an ongoing debate over the propriety of the military pension system more generally. Efforts to expand the federal pension system frequently met with the objection that government-funded relief was inappropriate in a republic. Opponents argued that military pensions would lead to a class of aristocratic placemen in America, and in the next breath said that the military pension looked too much like government charity for the poor. They frequently invoked the British pension and poor law systems in debates over widows' pensions. Representative Eldred Simkins of South Carolina opposed expansion of the pensions afforded traditional war widows, warning that America would go the way of the motherland: “The history of England . . . afforded a commentary on such policy; by the operation of her poor law and her pension system, she had slided into an expense so great that even the air they breathed and the light of heaven, were become subject to taxation.”Footnote 193
For Harrison, this critique missed a more striking comparison: to the extent that America's military pension system treated citizens and families differently based on their class-salient status, it already resembled the despotic pension regimes of Europe. There could be no “analogy between [the pension system] of this Government and of the Governments of Europe,” Harrison contended, “the one being of moderate extent, and for actual services, the other of enormous extent, and bestowed on the principle of favoritism merely.” Here, he said, were individuals “who have contributed their all to the service of the country—the parent who supported and educated the child; the husband on whom the wife depended for protection and subsistence.”Footnote 194 Echoing the insistence that “equal claims or sacrifices should meet with equal rewards,” Representative Henry Southard of New Jersey explained that “in monarchal and despotic Governments, injustice and oppression may answer; but in a Republic, a different line of conduct must be pursued.” If the “interest of despots is . . . by oppression to extort obedience and command their services . . . . our interest is to be just and liberal to that class of citizens upon whom the liberty and independence of their country so much depend.”Footnote 195 In the minds of pro-pension legislators, equalization of military widows' pensions followed from elementary republican principles.
These legislators' arguments in favor of expanding widows' pensions to include widows of non-officers were surely tied to a larger set of claims concerning men's status and the rights of the citizen-soldier in the wake of the War of 1812. Most notably, the War of 1812 served as a crucial stimulus for the movement for manhood suffrage among white men who were mustered into the militia, as the very process of being mustered gave them both opportunity and special cause to protest their disenfranchisement.Footnote 196 In addition, in the aftermath of that war, Revolutionary War veterans agitated successfully for the expansion of veterans' service-based pensions.Footnote 197 In that effort, the image of the citizen-soldier had been successfully harnessed by organized veterans' groups and individuals to secure service-based pensions for Revolutionary War veterans of all ranks, affirming the centrality of military service as a hallmark of full, participatory citizenship.Footnote 198 The growth of widows' pensions similarly helped solidify non-elite men's status as husbands and citizens, as widows' pensions indirectly rewarded all married men who had served the nation.Footnote 199 In this regard, widows' pension statutes were part of a shift, albeit limited, toward democratization of men's citizenship rights during the “era of the common man.”Footnote 200
It would be wrongheaded, however, to understand widows' pension statutes only in terms of what they signaled concerning men's status. Widows' pension petitions pushed Congress to acknowledge common women's particular contributions and vulnerabilities as wives and widows with financial support from the federal coffers. And, as discussed above, the petitions did so by drawing on contemporary discourses of domesticity. In this regard, it comes as little surprise that the two most significant widows' pension statutes were enacted in the 1830s, as the concept of domesticity was crystallizing in various cultural forms. Women had long been understood as the keepers of the hearth, but the notion that women possessed special traits and talents that suited them for homemaking and child rearing took on new force and significance as it was refined and reproduced in sermons, magazines, advice books, novels, and poems.Footnote 201 A woman's highest and most appropriate calling was in the home, where she should nurture and instruct her children and exert moral and religious influence on all those residing in the household.Footnote 202 Debates over widows' pensions therefore reveal that, although such beliefs concerning women's inherent capacities were routinely used to justify women's exclusion from direct political participation, they were also used to enhance widows' claims to public material support. In this respect, women's inclusion in, and exclusion from, matters of public concern shared the same ideological foundation.
It is worth underscoring, moreover, that the growth of widows' pensions demonstrates that by the 1830s, domesticity was being recognized and reified as a concept that was important, not just for women of the upper and middle classes, but for women across the socioeconomic spectrum.Footnote 203 At a time when judges and legislators were beginning to recognize and exploit the social welfare function of marriage for a substantially larger set of women in other areas of law,Footnote 204 widows' pension petitions sounded the horn of common women's domestic contributions, dependency, and need. Through those petitions, women's understanding of their rights as wives were brought to bear on the legislative process, creating a feedback loop between women and national legislators. Whether through firsthand knowledge or newspaper reports, women such as Catharine Barr knew about other widows who had received pensions: both poor widows like herself and wealthy widows like Susan Decatur.Footnote 205 Barr used that knowledge to frame her claim, defending the merits of her view that poverty and dependency, not rank or status, were proper reasons to allocate public monies for military widows' support. Others like her did the same in their petitions to Congress, thus serving as a conduit for a new way of understanding the purpose and function of military widows' pensions, and helping to entrench marriage as a national institution.
C. Leveling Down: Disestablishing Class-Salient Widows' Pensions
While actual petitions of widows, along with visions of hordes of impoverished widows arriving in Washington, prompted legislators to reason about the poverty of a substantial class of women as a problem that should be addressed by the national government, reactions against aristocratic privilege also played a central role in shaping and equalizing the widows' pension system. If any widow's petition bore the imprint of the “wild profusion and extravagance” of Europe, it was Susan Decatur's.Footnote 206 Although she was ultimately successful in obtaining private relief from Congress, many legislators resisted her petitions precisely because her claim was cut from the cloth of Old World privilege and entitlement. Decatur's extraordinary legal saga is, therefore, significant as a legal artifact, not only because her case resulted in a significant Supreme Court opinion concerning mandamus,Footnote 207 but because her petitions to Congress, and the petitions of women like her, prompted reconsideration of whether—and, if so, how—the federal government should use marriage as a basis for public entitlements.
Decatur's petitions to Congress leave little doubt that her claim to an entitlement was founded on a class-salient understanding of widows' legal rights. Although Decatur pled poverty, the papers submitted with her claim spoke of Stephen's heroism in Tripoli—“admirable for the chivalry of its conception, and the brilliant and decisive manner of its execution”—and bore endorsements of Decatur's powerful connections in Washington, D.C.Footnote 208
Such patronage gave Decatur access to legislators that very few other widows enjoyed, and those connections undoubtedly secured the votes of some legislators, but Decatur's bald resort to connections outraged the sensibilities of others. In 1834, Representative Thomas Chilton of Kentucky spoke about Decatur's petition, which by that point had been before Congress in various forms for 9 years. Chilton complained that Congress was being called upon to “appropriate an enormous sum” to benefit “a lady, having, as I understand, a large real estate in this city [and] not a child on earth to provide for,” while “countless hosts of widows were left, with crowds of helpless children around them in double orphanage, for whom no provision has ever yet been made.” These women, Chilton observed, would have little chance of securing a pension, or even obtaining acknowledgement of their petition, from Congress:
Suppose, sir, that some poor and obscure woman should come here, who has eight or ten children, in the rags of poverty, and, perhaps, without even bread to eat? Suppose she should say to Congress—“Gentlemen, my husband, the father of these suffering children, left his humble fireside and his home—he left me and these. He went forth and fought your battles. . . . Give me and my children thirty thousand dollars.” What would be the reply? Ah me! How few the eloquent tongues that would respond, Here take it, it is yours. And should she even ask, more modestly, for one thousand, or five hundred—the reply would be, in substance, “Depart, for we know you not.”. . . An officer, having a great name, has only to demand and receive his thousands, or his tens of thousands; while the poor soldier . . . . is forgotten.Footnote 209
Chilton's disillusionment with Decatur's case was of a particular moment: In 1834 Congress was actively considering significant expansion of the demographic reach of widows' pensions. But antipathy to Decatur's quest for a pension was enduring, re-emerging in legislative debates at different junctures. In 1856, for example, Senator Clement Claiborne Clay of Alabama objected to Decatur's claim. “There are petitions without number,” he exclaimed, referring to the unsatisfied claims of other widows, and then noted that his “recollection is that [Decatur] has already been the recipient of more bounties from this Government than the widow of any other officer of our Navy.”Footnote 210
In Decatur's case, the backlash against privilege and private bills appears to have played an unusually direct role in shaping the public law. When Decatur submitted her first petition, in 1825, private and public acts that provided for officers' widows only were giving way to a new, more egalitarian understanding of military widows' pensions that would help precipitate the enactment of two far-reaching general widows' pension statutes in 1836.Footnote 211 Seen in light of this leveling trend, it was not simply a coincidence that on the same day that Congress finally enacted a private pension act for Susan Decatur—March 3, 1837—it also enacted the extraordinarily broad general pension statute, appropriately titled “An Act for the More Equitable Administration of the Navy Pension Fund.”Footnote 212 This general pension statute for navy widows not only reached widows of the rank-and-file, but also awarded lifetime pensions—retroactively and with arrears—to all navy widows whose husbands had “died while in service,”Footnote 213 rather than “by reason of wounds received in the line of duty,” as was the case with most traditional war widows' pension statutes.Footnote 214
The extraordinary generosity of the March 3, 1837 act is best understood as part of a direct reaction to Congress's private act for Decatur. Although no record of the legislative debate for the 1837 statute seems to have survived,Footnote 215 debates held just 3 years later, as Congress contemplated its repeal, are telling. The broad scope of the act had nearly bankrupted the navy pension fund. As the House considered the extremely unusual step of repealing a widows' pension statute,Footnote 216 it charged Representative Charles Shepard of North Carolina with determining why Congress had enacted such a generous statute in the first place. His investigation led him to Decatur. Shepard explained that “a portion of the [navy pension] fund had been given to Mrs. Decatur by a special act, and therefore it was thought reasonable to invite other widows and orphans to partake of what had been sacredly devoted to a different purpose.”Footnote 217 In other words, in a reaction to the generous relief awarded to Decatur by private act, Congress had attempted to secure a “more equitable administration of the navy pension fund”Footnote 218 by passing a general pension law that entitled an enormous class of navy widows to pensions on the same terms as those provided for Decatur. Because Stephen Decatur had not died of battle wounds, but had been in the naval service when he died, the public act also accommodated widows whose husbands had “died while in service.” In addition, like Susan Decatur's private act, the general pension statute awarded pensions retroactively to the date of the husband's death. Congress's resistance to special treatment of high-status widows like Decatur led it to significantly expand the general pension laws to reach all navy widows on the same terms.
The March 3, 1837 legislation is only one example of how national lawmakers' suspicion of patrician widows' claims for private relief led to a leveling up of military widows' pensions more generally.Footnote 219 The Congressional Globe provides a full account of the lengthy debates over a petition submitted by the widow of President Harrison, a man who had spent his early days in Congress advocating for the equalization of widows' pensions. Upon her husband's untimely death, Anna Harrison petitioned Congress for a pension of $25,000.Footnote 220 Harrison's petition, which unfortunately for her was presented at the same time that the legislators were considering the repeal of the overly generous act of March 3, 1837, became another lightning rod for debate concerning the propriety and scope of pensions for patrician widows.Footnote 221
Some senators used the debate over Harrison's petition as an opportunity to criticize the widows' military pension system more generally, but the great weight of the concern was that pensions awarded to elite widows like Anna Harrison smelled of aristocratic pretension and privilege. During the floor debate, Senator Thomas Benton of Missouri sought to “exemplify the evils of [a] system of civil pensions, by showing what it had produced in England” by reading off a long list of well-known placemen and place-ladies who lived off the public treasury.Footnote 222 Senator Perry Smith of Connecticut conceded that Harrison was a “worthy lady,” but argued that were an inquiry made, “it would be found that she had a better property than many that are considered wealthy in the United States.” He summarized what by then appeared to be the prevailing view of Congress: “Was not the sympathy of Congress more appropriately due to the widows and orphans of those who had equal claims, and who were left in poverty and destitution?”Footnote 223 Anna Harrison's petition was denied.
The individual petitions filed by widows of high-ranking officers and prominent public servants undoubtedly received more attention from legislators than the individual petitions of common women, but in the longer run congressional debates over their merits likely benefited the Catharine Barrs of the world rather than the Decaturs or Harrisons. Petitions submitted by the widows of high-ranking men often drew attention to widows' claims while also highlighting the inequalities of the inherited practice of providing for the widows of officers only, and of the unrepublican dangers of a system of selective, ad hoc entitlements. At a time when egalitarianism was a frequently celebrated, if not necessarily practiced, social and political virtue,Footnote 224 patrician women's pension petitions tended to push Congress to enact more egalitarian, general widows' pension laws, such as the statutes enacted in March and July of 1836 and the raft of subsequent statutes that dramatically expanded the reach of military widows' pensions over the subsequent decades.Footnote 225
IV. Widows' Petitions and the Origins of Marriage-Based Entitlements
In urging that we must recognize widows' petitions as a crucial factor in the development of early nineteenth-century military widows' pensions, the goal is neither to overstate the significance of women's petitions, nor to underplay the significance of other political and cultural forces that influenced legislators' voting practices. Other aspects of the political process are crucial to understanding why the widows' pension system evolved as it did, when it did. American political development scholars have rightly trained our attention on the importance of institutional and political factors in shaping law and policy. Most notably, of course, Theda Skocpol's pathbreaking analysis of late nineteenth-century military pensions has heightened our attentiveness to how politics shapes policy, particularly with respect to social provision.Footnote 226 Surely, the growth of widows' pensions in the early nineteenth century can in part be explained in such terms. Treasury surpluses and the related tariff debates helped fuel the development of military pensionsFootnote 227 (although it is notable that many public law widows' pension statutes were enacted during periods of low reserves). And, undoubtedly, the administrative capacity to respond to widows' claims was a necessary condition of making broad-scale pensions anything more than an empty promise.Footnote 228 Nor should we be naïve about the rhetorical nature of congressional debate. Legislators responded to widows' petitions for a host of reasons, some of which were no doubt completely unrelated to their proclaimed sympathy for the financial distress of the women whose petitions they considered.
But in our rush to find a causal explanation in political processes and institutional conditions that, at first blush, appear to be removed from the lives of everyday women of the early nineteenth century, we should not overlook the central role of widows' petitioning efforts in the development of military widows' pensions. Widows' pension petitions were not window dressing for larger political and institutional processes; they were an integral part of the political and institutional processes that brought the first centralized, broad-scale system of public marriage-based entitlements into being. As demonstrated by the string of widows' petitions that prompted the enactment of the watershed statutes of 1836, the petition was the legal and political tool that widows used to put their needs—as individuals, but with shared experiences—on the legislative agenda. National legislators gradually responded to widows' requests for pensions, and they did so not just for widows of the middle and upper classes, but for widows of all classes. In short, the widows' pension petitions helped render Catharine Barr's spirited proclamation concerning widows' pensions—“[i]t is no more than right that our Country should allow us that mite for our own Exclusive use”Footnote 229—intelligible to her and women like her, and intelligible to men in Congress.
Recognition of the salience of women's petitions in the development of broad-scale marriage-based entitlements helps us to situate the legal claims of women like Decatur and Barr and Tenney on the spectrum of early nineteenth-century women's legal and political activities. Historians have done much over the last three decades to illuminate the many ways in which, cultural and political barriers notwithstanding, women played significant roles in public life in the early nineteenth century. At the local, state, and national levels of government, women engaged in a range of political processes and rituals, and were deeply involved in party politics and, perhaps especially, social activism.Footnote 230 In these capacities, women frequently exploited contemporary gender ideology—and, particularly, the belief in women's special moral status as mothers—in crafting arguments for a particular course of community or government action.
In a similar fashion, widows' pension petitions functioned as an important vehicle for reinforcing and exploiting gender-based sociopolitical roles that by the 1830s were deeply rooted in political and cultural discourse: women's important, but dependent, function as domestic helpmates, and men's idealized status as wage earners and citizen-soldiers. Accordingly, widows seeking pensions rarely challenged the gendered values of antebellum society. For example, women did not generally petition for pensions based on their direct services as nurses or camp aides. Although at least one woman sought a pension in part based on her service as a nurse in the Revolutionary War, her claim was rejected by legislators and drowned out by the petitions of women seeking support on the basis of their status as widows.Footnote 231 Similarly, although there were a few known instances of women cross-dressing and enlisting in the military, there was no general sense among women, or even among proto-feminists of the period, that women should be able to serve in the military and benefit from the entitlements granted to men on the basis of such service.Footnote 232 Instead, widows seeking pensions reasoned from and within traditional gender norms, and employed the petition in a way that harnessed those norms to secure material security for themselves and their families.
In this regard, widows' claims to pensions based on women's traditional services as wives and mothers resonated with the contemporary claims of women who sought compensation for household labor. As Reva Siegel has chronicled, in the early nineteenth century women's rights activists advocated for joint property rights in marriage—a significant departure from the regime of coverture, in which nearly all that was hers became his upon marriage, including any income generated by her domestic labor.Footnote 233 Albeit unsuccessful, women advocating for joint property rights sought recognition of wives' contributions to the household economy through their substantial efforts: cooking, gardening, cleaning, sewing, keeping boarders, and, especially, child rearing.Footnote 234 Although certainly progressive in their time, as Siegel demonstrates, women urging compensation for wives' domestic services did not challenge the gendered divisions of labor in the family, and they reasoned quite comfortably within a “separate spheres” tradition.Footnote 235 Nevertheless, by claiming a right to wages for household labor, they were undoubtedly seeking rights as women, or, as we would say today, women's rights.
More idiosyncratically, a woman like Catharine Barr might also have found a kindred spirit in Elizabeth Ware Packard, who in the 1860s publicly fought against her husband's despotic and abusive treatment.Footnote 236 As Hendrik Hartog explains in a careful reconstruction of Packard's ordeal, her husband had committed her to an asylum, as he was authorized to do under the law, because Packard insisted on publicly declaring her views on spiritualism, despite the admonitions of her Calvinist minister-husband.Footnote 237 At first blush, Packard's energetic resistance to her husband's authoritarianism could be read as opposition to a larger sociolegal marital regime that empowered husbands to control and chastise their wives. But Hartog makes clear that, in her efforts to secure release from the asylum and other forms of vindication, Packard did not seek freedom from marriage laws' constraints on wives' agency. Rather, she sought the “right to be a married woman”: the right, in other words, to the protection and support that the institution of marriage was supposed to afford women.Footnote 238 In Hartog's words, Packard wanted “legal confirmation of some version of a distinctively female dependent status.”Footnote 239 By the very act of petitioning for pensions, and through the formulation of their claims, widows seeking pensions sought a similar recognition, and the material support that they urged should come with it.
To observe that proponents of military widows' pensions reasoned within traditional gender norms does not mean that the very public activities of women petitioning for military pensions can be neatly folded into an account of domesticity advocated by women such as Catharine Beecher, who insisted on the private, moral foundation of women's sphere.Footnote 240 Beecher herself criticized women's participation in the abolitionist petition drives at least in part because she feared that petitioning would lead women away from “their appropriate retirement” and into the “arena of political collision.”Footnote 241 Widows' pension petitions made no claims to an overtly political role for women, but they certainly drew women into a domain of formal legal and political processes that were dominated by, if not often reserved for, men.
In this respect, widows' pension petitions captured and reproduced the seemingly contradictory cultural impulses that Nancy Cott has demonstrated were characteristic of women's position in the early nineteenth century, and which solidified in the 1830s, a decade of particularly active pension petitioning and legislation.Footnote 242 As discussed previously, widows' pension petitions built on the logic of domesticity, and urged that the state consider women's services in the domestic sphere, as well as their vulnerability as dependents, as bases for public support. However, the petitioning process also engaged thousands of women in a public-sphere activity that, in the exact same decade, took on particular significance as women employed the petition for abolitionist and anti-removal causes.Footnote 243 Although very different in their ambitions, the women who participated in these disparate petitioning exercises arguably laid the procedural foundations for women's increased involvement in the public sphere, both to challenge and to harness the concept of domesticity in order to improve women's lot, legally and materially.
Taken as evidence of the law's force in the everyday life of nineteenth-century women, then, the experiences of the widows who petitioned Congress in order to secure military pensions provide a textured picture of how the law shaped women's lives and how women shaped the law. Like much legal argumentation today, the contemporary rationales offered in support of widows' pensions seem more expedient and improvisational than overtly political with respect to women's place in the polity. Whether operating in a rarefied world like Susan Decatur or navigating the humbling and byzantine bureaucracy of the Pension Office like Catharine Barr, widows did their best to use the law's processes and authority in order to secure financial assistance. The fact that widows' petitions—and the reasoning they employed—were expedient does not render them any less ideological. Ideology is one's commonsense understanding of the way the world works: “the conception of the world which is uncritically absorbed” and reproduced through culture, social convention, political practices, and law.Footnote 244 Expedience led at least some widows and proponents of military widows' pensions to reason about these pensions as a “right” of married women—a right that grew out of widows' former status as wives. Military widows' pensions, therefore, stand as an example of women's everyday, instrumental use of law in a way that materially improved their lives and, simultaneously, strengthened and entrenched marriage as a source of women's legal status and dependency.
Finally, perhaps what is most significant about the widows' pension petitions is that even as they reinforced marriage as a source of legitimacy and structure for women's citizenship, they also helped transform marriage as an institution. Although marriage is often characterized as a private relationship, it has long served a host of public functions as well. Historically, however, marriage's public functions generally did not include creation of an entitlement to financial support from the government. In America, that began to change in the early nineteenth century with the development of federal military widows' pensions. Under the pension statutes, military widows could claim support, not just from their husbands' estates or from other private parties, but from the public coffers. The development of this novel form of legal entitlement—the public marriage-based entitlement—signaled important transformations in the legal and social meanings of marriage. During the early nineteenth century, Americans came to understand that, under certain circumstances, marriage gave a substantial class of women “virtually a vested right” to a public pension upon widowhood.Footnote 245 In this respect, early nineteenth-century widows' pension petitions helped bring about durable changes in the institution of marriage–changes that continue to shape Americans' understanding of marriage and the many entitlements it creates to this day.
