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Why not Mom?

Reader Sharon G. Whitney simply couldn’t wrap her head around what the Delaware County, Indiana, Circuit Court thought it was doing in 1890.

That was the year, she reported, that the United States Bureau of Pensions finally got around to awarding a pension based on a deceased Civil War soldier’s service.

pensionIt gave benefits to his widow for the period from February 1877 to February 1882, when she remarried, and then it gave benefits to the children from the date of their mother’s remarriage to the day before each turned 16.

That’s when the Delaware County Circuit Court appointed a guardian for those minor children. And it didn’t appoint their mother. Instead, it appointed their paternal uncle — their father’s brother.

And that has Sharon perplexed: “Why,” she asks, “would the minor heirs of a deceased Civil War invalid need a guardian when their mother, who was not incapacitated, was living, but remarried?”

The answer is simple — and infuriating to a 21st century woman: because somebody had to be legally responsible for the children’s money — and women weren’t taken very seriously by the law at that point.

Let’s back up a little.

First off, you want to look at the law that gave the pension rights to this widow and these children, often called orphans by the law because their father was deceased.1

In 1862, Congress passed a comprehensive pension law covering those who were then fighting and dying in the Civil War. It provided benefits for those wounded and disabled, in section 1, and then went on in section 2 to provide:

That if any officer or other person in case of named in the first section of this act has died since the fourth day of death of those March, eighteen hundred and sixty-one, or shall hereafter die, by reason of any wound received or disease contracted while in the service of the United States, and in the line of duty, his widow, or, if there be no widow, his child or children under sixteen years of age, shall be entitled to receive the same pension as the husband or father would have been entitled to had he been totally disabled, to commence from the death of the husband or father, and to continue to the widow during her widowhood, or to the child or children until they severally attain to the age of sixteen years, and no longer.2

Under the law, then, the widow of a man killed in the Civil War was entitled to a benefit, and the money went to her (and not to any children) while she remained a widow. Her remarriage would terminate her right to receive benefits.3

But when she remarried, the money wasn’t hers any more. It was to go to the children, up until each of them turned 16.

Now… in our 21st century experience, we’d all expect the mother to be the natural choice to handle the children’s benefit. That’s certainly the way it’d be handled in most cases today.

Not so in the past.

Remember that, at common law, control over the persons and the estates (property) of a child rested with the father — and only the father. And in the course of explaining the legal power of the father, Blackstone in his Commentaries on the Laws of England noted, in passing, that “a mother … is entitled to no power, but only to reverence and respect…”4

Let’s repeat that: “a mother … is entitled to no power, but only to reverence and respect…”

We can add in the legal disabilities of women generally, both in the common law and in early statutes. Think, just as one example, about the fact that a wife didn’t ordinarily inherit from her husband: all the property went, not to her, but to the children — and then often to the sons and not the daughters.5

So when it came to guardianship, the law naturally looked to men as well — at least when it came to property.

To understand that better, we need to keep in mind that, in the common law, there were three essential types of guardians: the guardian by nature; the guardian for nurture; and the guardian in socage. The guardian by nature or guardian for nurture had the right to physical custody of a minor child. That was always the father or, if the father died without naming a guardian in his will, then the mother.6 The difference between the two was that the guardianship by nature lasted to age 21 and gave the guardian control over the child’s personal property. Guardianship for nurture lasted to age 14 and didn’t involve property at all.7 The guardian in socage was the one who had custody of a minor’s lands and person.8

In America, the guardian in socage gave way to the guardian by statute — the person “appointed for a child by the deed or last will of the father, and who has the custody both of his person and estate until the attainment of full age.”9 And if nobody was named by the father, the court stepped in with a guardian by appointment of the court, with the same authority.10

Notice that this type of guardianship came into play only when there was an estate involved. If Papa died, and there wasn’t any property involved, then if Mama was able to keep the kids, she simply kept them. If Mama died too, then Gramma or Grampa took them in. Or Aunt Fanny and Uncle Bert. Or a cousin down the road. Or even a neighbor down the road. This was informal, and if the kids got raised, didn’t starve and didn’t run wild, nobody took a second look. Remember: the notion of formal adoption under the law didn’t even start in the United States until the 1850s.11

But when property or money was involved, the preference was overwhelmingly for the nearest male relative who couldn’t inherit from the child to serve as guardian. Even the example used by Blackstone points this out: “where the estate descended from his father, … his uncle by the mother’s side cannot possibly inherit this estate, and therefore shall be the guardian.”12

And that’s exactly what happened in Sharon’s case: the mother was bypassed by the law as entitled to “reverence and respect” but not to legal power, and her late husband’s brother was named the guardian instead.

That doesn’t mean the children lived with him. In all likelihood, they would have remained with their mother and her new husband. But the legal authority over the money they were receiving from their father’s pension would have been with their uncle, not their mother.


SOURCES

  1. See Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 857, “orphan.”
  2. “An Act to grant Pensions,” 12 Stat. 566, 567 (14 July 1862).
  3. See William H. Glasson, Federal Military Pensions in the United States (New York: Oxford University Press, 1918), 127; digital images, Google Books (http://books.google.com : accessed 6 June 2016).
  4. William Blackstone, Commentaries on the Laws of England, Book I: The Right of Persons (Oxford, England: Clarendon Press, 1770), 453; digital images, Google Books (http://books.google.com : accessed 6 June 2016).
  5. See e.g. ibid., at 463-464.
  6. Black, A Dictionary of Law , 552-553, “guardian by nature.” Ibid., 553, “guardian for nuture.”
  7. Ibid.
  8. Ibid., 553, “guardian in socage.”
  9. Ibid., “guardian by statute.”
  10. Ibid., 552, “guardian by appointment of the court.”
  11. See “Timeline,” The Adoption History Project (http://pages.uoregon.edu/adoption/index.html : accessed 6 June 2016).
  12. Blackstone, Commentaries on the Laws of England, Book I: The Right of Persons, at 461.
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