3 Law Library of Congress

Pamela Barnes Craig

The Law Library of Congress contains the largest body of United States federal and state law, foreign law, international law, and comparative law and legislation in the world. The breadth and depth of the Law Library's collections are extraordinary. Federal and state laws and court decisions from the colonial period to the present shed light on U.S. history. Laws of Massachusetts that date from the late seventeenth century and Virginia Court Reports dating from the early eighteenth century are available both in printed editions, housed with the Law Library's Rare Book Collection, and in microform.

Besides these primary source materials, legal treatises—for instance, Blackstone's Commentaries (see bibliography after section on Property Law)—form a strong component of the Law Library collections. Many early editions of common law treatises—from which numerous modern laws are derived—are among the holdings, as are legislative histories. For example, a collection of bound federal bills dating back to the 16th Congress is available for consultation. Through all these varieties of resources, the Law Library of Congress presents a wealth of legal information to support the study of women's issues.

Historically, the legal rights of women have been determined by men. Some legal historians even argue that women in the United States had no “legal rights” until 1920 when the Nineteenth Amendment was ratified. Although the lives of women had been affected by laws, women themselves had played no direct role in legislating or enforcing these laws. They could not vote to elect legislators and thus had no direct leverage in the electoral process. It seems ironic that Justice, the symbol of the United States court system, is female, yet for years women were not able to participate in the judicial system except as defendants or third parties. For the most part, women did not enter the courtroom as lawyers until the late nineteenth century, and they could not serve as jurors until the twentieth century.

Nevertheless, there were a number of laws from as early as the seventeenth century that specifically addressed women. Protective legislation limiting the number of hours women and children could work and court decisions addressing a woman's guilt or innocence in criminal proceedings or whether or not she could keep or devise her inherited property are examples.

Despite this wealth of legal information to support the study of women in diverse academic areas, court decisions and statutory language have been underused by scholars in disciplines other than legal history. The reasons for this vary, but most law librarians will agree that the challenges of legal research and a lack of knowledge about law may discourage historians and others from doing research in this area. The vast array of materials in the Law Library can be overwhelming to the researcher, especially if the methodology of legal research is unfamiliar. Because there are few guides, indexing sources, or treatises specifically addressing women's issues, using legal resources can be challenging—but can also result in rewarding discoveries.

USING THE COLLECTIONS

Using the legal collections of the Law Library requires an understanding of legal resources and basic legal methodology, as well as some knowledge of specific tools for research. Below is a discussion of methodology that will give a brief overview of legal research. Following that are sections on federal and state law that will give examples of laws that directly related to women and to the issues that affected them. Property, suffrage, and employment are areas that have distinct laws with a long history. Other issues are interesting for their exclusivity, such as laws relating to slavery and indentured servants. Civil rights and discrimination in employment—legislation that is fairly recent and whose basic issues are familiar to most women—will illustrate the major differences between federal and state law and their interdependence.

Catalogs and Subject Headings

As in other parts of the Library of Congress, the Library's online catalog can be used to find books and periodicals in the Law Library collections. It is important to gain some familiarity with classification of legal materials, specific subject headings, and catalogs that may be helpful.

The Law Library collections have various classification numbers (or call numbers). Most law materials are in class K, which is often subdivided according to country: K is international law, KF is United States law, KD is British law, and KZ is used to classify international treaties. Since class K was one of the most recently developed classes, many of the books housed in the Law Library carry earlier classification numbers. For example, books in the American State Trials Collection may be identified by the call number: LAW <Trials “Kinney”>. Other class numbers include J1-J14 (official country gazettes) and JX (presently being converted to KZ). A card catalog is also available and is helpful for finding books that were published before 1980 for which the classification number is not given in the online catalog. Books written in non-roman-script languages that do not have transliterated titles can also be located through the card catalog.

The Law Library Reading Room Card Catalog can be used to find call numbers for materials that are not available through the Library's online catalog. Many of the rare materials have not been cataloged and given a Library of Congress call number, and for these, the card catalog may be one of the only sources for finding a particular book or series. Other, published catalogs are also helpful and should be consulted to identify useful material.

Legal Research Methodology

Legal research can be time consuming and sometimes offers limited results, but there are fundamental principles that will aid the process. Consulting general sources will help you identify specific legal research resources, their arrangement, and the methods used to obtain information from them.

In legal treatises, periodicals, digests, and codes, a variety of index terms are useful in researching issues concerning women. For modern sources, index terms familiar since the 1960s, such as “woman,” “sexual harassment,” and “marriage,” can be used. The best technique for searching an index is to begin with a narrow term and broaden the search. For instance, if you are trying to determine if a state has laws on the battered wife syndrome, start with the narrow term “battered wife syndrome.” If that does not yield results, broaden your search to “spousal abuse.” If you do not find either of these phrases, use the broader term “domestic violence.” Searching under antonyms, synonyms, and associated words of all kinds may lead to useful information.

Researching historical issues can be problematical because the legal status of women changed over time. The researcher must try to think the way an eighteenth-, nineteenth-, or early twentieth-century legal scholar might have thought. Most legislation pertaining to women has been enacted indirectly. Married women were considered “silent partners” in marriage relationships. As a result, “woman” or “women” were rarely used as indexing terms. By and large, indexing terms reflected a woman's relationship to a man. Terms such as “wives,” “dower” (a dower1 being the portion of real and personal property of a deceased husband that the law gives to his widow during her life), “widows,” “coverture,” “femes covert” (married women), “femes sole” (single women), or “females” were used.

Normally, unless the application of a law treats men and women differently, there will be no distinct subject terms for indicating gender in an index. For instance, contract law applies to any party to a contract regardless of gender or position as long as the requirements for contracting are met, so there are no distinct headings for women; whereas property law, a substantive area, has distinct headings for women, because widows held a unique position in estate and succession laws. It is important to remember to make the distinction between law and social conditions in dealing with women's issues. Often, it was not the wording of the law that prohibited women from doing certain things, but rather it was the social interpretation of the law influenced by mores that restricted women's behavior.

There are two types of authority in the law: mandatory and persuasive. Mandatory authority is authority the courts must heed (or to which the courts must pay attention). Persuasive authority can persuade a court to its opinion, but it is not binding. Mandatory authority is found in primary sources which include legislation, judicial decisions, and administrative regulations. Persuasive authority is found in both primary and secondary sources. Secondary sources are treatises, legal periodical articles, legal encyclopedias, and other commentary about the law. Very often it is easier to look at secondary sources to understand the primary sources, but to legislators, judges, lawyers, regulators, and those involved with the law, primary sources ultimately are the only sources that matter. For other academic specialists, particularly historians, the background information for the creation of legislation and court documents pertaining to a case can be essential for analyzing the social and political climate of the time.

Legal treatises, which are secondary sources, are good sources for general information on substantive law, though most do not focus specifically on women's issues and rights. Consulting a treatise on a specific subject will usually yield some background information and, more important, citations to statutory or case law. Many of the treatises focusing on women were not published until the 1970s, but a few were published earlier. An early one that did relate specifically to women was Woman's Manual of Law by Mary A. Greene (1857-1936) written in 1902 to “present in a clear, simple, and if possible, entertaining way, those principles of law governing the business world and domestic life which most men understand in some degree, or think they do, but which most women do not understand, and wish they did.”2

Although the term law is often used generically, there are three major categories of primary law: (1) statutory law, (2) regulatory law, and (3) common law. Any or all of these categories might apply to any given topic relating to women. Statutory law is created by a legislative body, such as the U.S. Congress or the State of Maryland General Assembly. Regulatory law is created and enforced by an administrative body, for instance, the U.S. Department of Labor or the State of Michigan Fair Employment Practices Commission. Common law is created by a judicial body, such as the Fourth Circuit Court of Appeals or the Virginia Supreme Court. In many instances, these laws are interdependent, although they may appear to function independently (see the discussion of federal law that follows). To add to the complexity, these types of laws are created by the appropriate body in each of the different jurisdictional units: federal, state, regional, county, and city. In other words, each jurisdictional entity has governmental bodies that create statutory, regulatory, and common law.

Another consideration involving jurisdictions is the governance of various legal issues.3 Civil rights, immigration, interstate commerce, and constitutional issues are subject to federal jurisdiction. Issues such as domestic relations, which includes domestic violence, marriage and divorce, corporations, property, contracts, and criminal laws, are generally governed by states, unless there is federal preemption.4 State laws and terminology will vary from state to state, and there are few comparative guides available. It is better to look at a specific state's laws or court decisions or to compare several specific states' laws and court decisions rather than to attempt to generalize about the legal criteria followed by all states.

When your legal research involves case law (or common law), it is important to know something about the significance of precedents or the doctrine of stare decisis, which refers to “adhering to or abiding by” settled decisions. Simply put, lower courts are bound to follow decisions of higher courts in the same jurisdiction. For example, a federal district court in Maryland is required to follow the decisions of the Fourth Circuit Court of Appeals and the U.S. Supreme Court, but it is not bound by the decisions of other district courts or by the Maryland state courts. Historically, this doctrine has hindered women in the courts, because once a precedent has been set, it is difficult to receive a different ruling unless the law that the judges or justices are interpreting is itself changed. Recently, however, stare decisis has been one of the major reasons that women have won cases concerning employment in the courts. Many precedents based on Title VII of the Civil Rights Act of 1964 favor women.

State legal materials resemble federal legal materials in many ways, but there are differences in the types of publications in which they are readily available. The nature of legal materials and publishing practices may differ depending on jurisdiction. Resources on the federal level are easier to obtain because materials are published by both private and government publishers. U.S. Government Printing Office (GPO) publications are readily available in government depository collections in libraries across the United States. Each state, however, follows its own publishing practices.

Differences are especially significant in the publication of court decisions. Many decisions regarding women's issues have been rendered on the trial level in state courts, and few state trial court decisions are published, because they do not establish legal precedent. (This reinforces the importance of the American State Trials Collection for studying historical development of the law.) Other cases, like the breast implant class action suit, are settled out of court, and there is no official publication of the proceedings or the terms of the settlement. Further, attempting to trace a particular piece of state legislation to its origin in colonial times can be difficult because of imprecise terminology and inconsistent publishing practices.

Most primary sources are chronologically arranged. To find them, you must be able to read legal citations, which are fairly uniform in their format. In such citations, the number preceding the name of the source ordinarily refers to a volume or title number. The number following the name of the source refers to the page number on which the cited material begins or the section number if the first number is a title. For instance, Pub.L. 88-352, Title VII, 78 Stat. 241, indicates that Public Law 88-352, Title VII, can be found in volume 78 of the U.S. Statutes-at-Large on page 241. The United States Code citation for the same law, 42 U.S.C. § 2000e et seq., indicates that the beginning of the codified law is found in Title 42 of the United States Code, section 2000e. Similarly, Meritor Savings Bank v. Mechelle Vinson et al., 106 S.Ct. 2399 (1986), indicates that the Supreme Court decision is found in volume 106 of West's Supreme Court Reporter on page 2,399. Tables of abbreviations will help you identify an abbreviation. Legal dictionaries, dictionaries of legal abbreviations, and the Bluebook: A Uniform System of Citation provide commonly used abbreviations and acronyms.

Statutory law can be found in two types of publications: compilations of statutes or codified laws.5 Both the compilations and the codes have the same wording, but their formats are different. A federal law is given the number of the U.S. Congress that passed it and a second number that represents the chronological order of its passage. “Pub. L. 88-352” indicates the 352nd law passed by the 88th Congress. After passage, a law is codified, or published according to its subject category. Public Law 88-352 can also be found in the United States Code, where the citation is 42 U.S.C. § 2000e et seq. Remember, though, that not all laws are codified.

If you are looking for statutory law on a general subject, the code is the best place to look. A code usually has a multivolume index that includes the codified laws, which are published there with amendments integrated into the original law, as currently in force. Public laws, however, are separate entities—the original law and each of its amendments remain separate. There is no general index to them. To find a specific public (or session) law, you need to know either the Congress that passed it or the year it was enacted, because indexes are published only at the end of each session of Congress.

To get a clearer picture of the passage of a law, the underlying legislative intent, and any political ramifications, it is often necessary to consult legislative history materials. Among these are, primarily, committee reports, hearings, and debates. Committee reports and hearings are published either as separate entities or in compilations. Debates are found in the United States Congressional Record. Again, federal legislative materials are easier to find, for most states do not actively publish these materials. To locate these state materials, find out if the state legislative branch has a legislative reference bureau or library available.

Administrative agencies serve two major functions: rule-making and adjudication (or enforcement). The rules and regulations of administrative agencies and executive documents are generally published in a register and compiled in a code. For example, federal materials are published in the Federal Register (F.R.) and the Code of Federal Regulations (C.F.R.). The State of Michigan publishes the Michigan Register and the Administrative Code of Michigan. Decisions rendered by an agency's adjudicatory body may be published as well. If a decision or order is not published, anyone wanting a copy must contact the agency to receive one.

As in searching for laws, the general subject of a regulation can be searched in the general index that a code provides. To find a rule or regulation in a register, the researcher should know the date of the final regulation or the year of enactment. Most registers have no general index that covers all regulations currently in force.

Court systems vary depending on whether they are federal or state. All court systems have two major levels: a trial court (district court) and a court of last resort (supreme court). Some have an immediate appeals court (court of appeals). The court system may also include various special courts that have limited jurisdiction. The federal system has three levels (district courts, courts of appeal, and a supreme court), whereas the District of Columbia, for example, has only two (the Superior Court and the Court of Appeals).

A suit is initiated in a trial court. If someone chooses not to accept the decision of the judge and jury, he or she can file an appeal in the immediate court of appeals. This court will affirm (support) the trial court's decision or reverse it. That decision can then be appealed to the court of last resort. Unlike the immediate court of appeal, to which citizens have a right to appeal, the court of last resort must be petitioned. The judges or justices determine whether or not they will hear the appeal. A state supreme court decision can be appealed to the United States Supreme Court.

Decisions rendered by judicial bodies are published in reporters (or reports), which vary in type. Again, it is important to remember that not all judicial opinions are published. There are reporters for all levels of federal courts, and virtually all of the opinions of the state courts of last resort are published. State immediate appellate court decisions are generally published. State trial court opinions, however, are rarely reported, but New York (in its Miscellaneous Reports) and Pennsylvania (in the Pennsylvania District and County Reports) do publish such decisions selectively. Most other state court decisions and any trial transcripts must be obtained through the clerk of the court in the specific jurisdiction where the trial was held.

Court records and briefs can be used to get background information on a specific court opinion. The Law Library of Congress has records and briefs for most U.S. Supreme Court opinions from 1832 to the present in both print and micro fiche, as well as the privately published Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law.6

Because court reporters are arranged chronologically, digest systems must be used to find court decisions by subject. Each of the major legal publishing firms has its own digest system. The most widely used of these is the American Digest System created by West Publishing Company.7 This standard system of subjects and topic areas is used in all of the company's digests, including digests for each jurisdiction and various subject digests, such as the Merit System Protection Board Digest. In addition, table-of-cases volumes can be used when the parties to litigation are known but the legal citation is not.

Legal encyclopedias, also secondary sources, give overviews of many aspects of law and numerous citations to relied-upon authority. They combine primary and secondary sources to give succinct statements of applicable law. Today, there are two major legal encyclopedias: Corpus Juris Secundum (CJS) (1936-) and American Jurisprudence (AmJur), 2nd edition, (1952-). For historical research, the older editions, Corpus Juris (1914-37) and American Jurisprudence (1936-52), are useful, as well as The American and English Encyclopaedia of Law (1887-96; 2nd edition, 1896-1905) and Ruling Case Law (1914-21). It is important to remember that each of these encyclopedias is different. Different topics, different subject headings, and different case law may be provided in each. In Corpus Juris Secundum each section has a summary of the law, usually in boldface type, and a reference to a topic heading (a key number) used in the West Digest System, which gives further access to related case law. In American Jurisprudence, research references (usually to American Law Reports, or ALR) are given under each major heading. Using encyclopedias is a good way to begin research if you are unfamiliar with law and legal concepts.

This guide can give only a brief overview of the fundamentals of legal research. The best way to become familiar with legal materials is to have a law librarian guide you the first time you undertake it. Although it may not make doing the research less complex, it will make the process more comfortable, which will allow you, the researcher, to consider the possibilities of what you are finding rather than becoming frustrated by the citation numbers, legal jargon, and variety of publishing practices.

SELECTED AREAS FOR RESEARCH

Within the Law Library, it is helpful to view its resources in the three general categories addressed above—the collections that are considered rare materials, either because of their age or scarcity; the material that has to do with federal law; and the various kinds of state materials relating to state law.

Rare Book Collection

The Rare Book Collection of the Law Library of Congress contains a large and diverse assortment of materials. These unique holdings include the laws from colonial America, historical laws of other countries, and treatises. Laws, court decisions, and treatises written and published before 1801 are considered rare, as are certain “one of a kind” items published after 1801. Most of these materials are in their original printings.

Territorial and state session laws make up the major portion of the Rare Book Collection. Included are the laws of the Hawaiian Islands before 1896, when they were ruled by Queen Liliuokalani. Another unique collection is the Native American Nations laws, including the Creek, Choctaw, and Cherokee tribal codes. Some of these codes are written in the vernacular script of the tribe. Several tribes have been recognized as strongly matrilineal, as reflected in their codes. Among reprints of colonial court records are records of the Massachusetts' executor of wills as well as other property records. The American State Trials Collection reveals that women played a significant role in some trials. Included are several domestic homicide trials in which the wife is charged with poisoning her husband or as acting as an accessory in a murder or is a victim of murder.

The Rare Book Collection includes historical laws and treatises from France, Spain, Russia, Great Britain, and other Commonwealth countries. The laws of Great Britain are the most extensive because of their significance in America and their influence on America's laws. Often the colonies based their original laws on the British or other European systems. The Statutes of the Realm of Great Britain, dating back to 1235, are the oldest. Law in Louisiana, the only civil law state, was, on the other hand, influenced by French and Spanish civil codes. The Coutumes of France, dating back to the fifteenth century and the precursor to the contemporary French Civil Code, are in this collection. The Castillian Leone Code, Las Siete Partidas, the precursor to the Spanish Civil Code, as well as a collection of Imperial Russian materials including the laws in force during the reign of Catherine the Great (1762-96) can be found in the Rare Book Collection. Although the collections consist primarily of laws, there are a number of treatises. One treatise pertaining to women is Laws Respecting Women regarding their Natural Rights, or the Connections and Conducts, published in Great Britain in 1777.

Territorial and State Session Laws

The Territorial and State Session Laws in the Rare Book Collection include a large number of early colonial and state marriage, property, and dower laws in their original text. The laws date from late seventeenth-century Massachusetts and early eighteenth-century Virginia. An edition of The General Laws and Liberties of the Massachusetts Colony in New-England, Revised and Reprinted (London, 1675) is one of the earliest.8 A section on dowries states:

It is Ordered by this Court and the Authority thereof, that every Married Woman, (living with her Husband in this Jurisdiction, or other, where absent from him with his consent or through his meet default, or inevitable providence, or in case of Divorce, where she is the innocent party) that shall not before Marriage be estated by way of joynture, in some Houses, Lands, Tenements or other Hereditaments for term of life, shall immediately after the death of her Husband, have Right and Interest by way of Dowry, in and to one third part of all such Houses, Lands, Tenements and Hereditaments. . . .9

These session laws contain a wealth of information about the lives of men and women during the colonial period. Interestingly, the laws on marriage in Virginia in 1722 indicate that a marriage license could be paid for in shillings and pence or in tobacco:

An Act concerning Marriages.

Ministers shall not marry People without License, of thrice Publication of Banes, according to the Rubrick.

. . . . Fees for Marriage Licenses.

If these Fees be not paid in ready Money, they shall be paid at the Time of Year in Tobacco of the Growth of the Parish where the Feme shall live, and on Refusal of payment be leviable by districts as per Clerks Fees.10

Such laws, written in the script of the colonial period, reveal aspects of colonial life that were important enough to legislate and litigate.

American State Trials Collection

The American State Trials Collection is an extraordinary body of state trials published from colonial times. Even today, when publishing court decisions is much more common, state trials are rarely among those that are printed. The judicial opinions and trial transcripts found in this collection include cases on adultery, murder, libel, and rape. Many of these trials took place before there were female attorneys or women jurors. Some resulted in interesting verdicts considering the period and the views held by men about women. In the case of The Commonwealth (Massachusetts) v. Fairchild, a Congregational minister was convicted of seduction in 1844 and banned from the church by an ecclesiastical court. In a subsequent civil trial, he was acquitted of adultery.11 In other trials, wives were acquitted of charges brought against them. In Commonwealth (Massachusetts) v. Kinney, 1840, “Hannah Kinney was acquitted of the charge of murdering her husband by arsenic poison.” The jury took only three minutes of deliberation to reach its decision.12

Books written about such trials or newspaper articles reporting the events of a trial as they unfolded show how highly publicized some of them were. Such complementary materials will be found not in the Law Library but in other Library of Congress collections, such as the General Collections or the collections of the Rare Book and Special Collections Division and the Serial and Government Publications Division.

State Law

As noted earlier, state materials are diverse. Each state has different laws, follows precedents set by different court cases, uses different terminology, and publishes legal materials according to its own dictates. Property law, a substantive area that has a distinct set of laws applicable only to women, is a good example to examine on the state level. The practice of law by women, employment practices, and suffrage are three other areas with important historical ramifications for women that are governed by state law.

Property Law

Generally, property is divided into two major areas: realty and personalty. Realty is land, whereas personalty is possessions—for instance, jewelry, money, furniture, or slaves. State laws regulate who may purchase property, who may own it, and how it will be distributed upon the death of the owner or owners. This premise applies unless the land is federal property, in which case the federal government makes the determination.

Property laws have been important from the beginning of this nation, especially since many new citizens did not or could not own property in their countries of origin. Disagreement among the colonies about continuing British legal traditions resulted in differences in colonial laws—some colonies wanted to remain true to British legal tradition, whereas others chose to abandon some or all of the traditions. With its very structured property and inheritance common law tradition, Great Britain allowed women to file suit in chancery courts, known as “equity courts.” The route a colony took on such an issue determined to a large extent the rights and privileges that women living in that colony possessed.

Some colonies, like Virginia, had liberal laws that gave widows the right to own or control the use of land as part of their dowry rights.13 Connecticut, on the other hand, gave women no rights to own their property or their husbands' real property. Other colonies gave wives the right of private examination.14 Their laws required husbands to get the signature of their wives before title to joint property or property brought to the marital state by the wife could be conveyanced or transferred. 15 Virginia adopted the British chancery court system, which gave women the ability to challenge male descendants' claims to land. In the western territories, because of the influence of Spanish civil law, women might enjoy community property rights.

The importance of courts is evidenced by the relative abundance of published court opinions. Some cases even reached the U. S. Supreme Court. One of the earliest, Jones v. Porters, was decided in 1740 in a Virginia court.16 In it, the court nullified a conveyance made by a married couple because the wife's private examination had not been recorded. Without the private examination on record, purchases could be nullified, as illustrated by a 1691 law of New York: “An Act declaring what are the Rights & Privileges of Their Majesties Subjects inhabiting within Their Province of New-York: That no Estate of a Feme Covert shall be sold or conveyed, but by Deed acknowledged by her in some Court of Record, the Woman being secretly examined, if she doth it freely, without threats or compulsion of her Husband.”17

Between the late eighteenth and the end of the nineteenth century, the U.S. Supreme Court rendered over one hundred decisions in which women and property rights or conveyancing of property were at issue. One of the first cases was Barnes' Lessee v. Irwin in 1793, which concerned a wife's inherited property and an antenuptial agreement.18 The high court ruled in favor of the defendant, upholding the validity of the antenuptial agreement and the wife's right to grant ownership through her will. The importance of property ownership and the right to devise were clearly evident in the pervasive laws and court decisions rendered in colonial America and the early United States of America.

Married Women's Property Laws

During the nineteenth century, states began enacting common law principles affecting the property rights of married women. Married women's property acts differ in language, and their dates of passage span many years. One of the first was enacted by Connecticut in 1809, allowing women to write wills. The majority of states passed similar statutes in the 1850s.19 Passed in 1848, New York's Married Women's Property Act was used by other states as a model:

AN ACT for the effectual protection of the property of married women.

Passed April 7, 1848.

The People of the State of New York, represented in Senate and Assembly do enact as follows:

Sec. 1. The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.

Sec. 2 The real and personal property, and the rents issues and profits thereof of any female now married shall not be subject to the disposal of her husband; but shall be her sole and separate property as if she were a single female except so far as the same may be liable for the debts of her husband heretofore contracted.

Sec. 3. It shall be lawful for any married female to receive, by gift, grant devise or bequest, from any person other than her husband and hold to her sole and separate use, as if she were a single female, real and personal property, and the rents, issues and profits thereof, and the same shall not be subject to the disposal of her husband, nor be liable for his debts.

Sec. 4. All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.20

Legal historians usually refer to the Civil War period to illustrate the changes in the law brought about by amendment. Amendments based on different economic, social, and political conditions can change the emphasis of the original legislation. Before the Civil War, married women's property laws were concerned with equity procedures, focusing on the appropriate pleadings a wife should use to file a suit but not altering a husband's privileges granted by prior common law principles. After the Civil War, laws were concerned with equalizing property relations between husband and wife. As Joan Hoff-Wilson concludes in Law, Gender, and Injustice (1991), these laws “ranged from the simple ability of wives to write wills with or without their husbands' consent, to granting feme sole status to abandoned women, to allowing women some control over their own wages, to establishing separate estates for women, to protecting land inherited by widows from their husbands' creditors, to allowing widows legal access to their husbands' personal estates.”21

The Homestead Act of 1862 demonstrates that the federal government did not make gender one of the criteria for homestead ownership, and this concept was adopted by several western states as well:

Sec. 1 . . . head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, . . . shall, from, and after the first January, eighteen hundred and sixty-three, be entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which said person may have filed a preemption claim, or which may, at the time the application is made, be subject to preemption at one dollar and twenty-five cents, or less, per acre; . . . .

Sec. 2: And be it further enacted. . . . upon application to the register of the land office in which he or she is about to make such entry, make affidavit before the said register or receiver that he or she is the head of a family. . . .22

At the turn of the century, it was the effectiveness not the language of the law that diminished the rights of females. Some state legislatures began enacting laws that recognized separate and inherited estates of women as part of family income, granting creditors the right to claim women's property to pay family debts. As estates, trusts, and succession laws were passed, the rights of dower were abolished. Even after these laws had been repealed, many states kept portions of the older laws. For example, intestate succession (without a will) generally allowed a widow to take one-third of the husband's estate as earlier rights of dower had specified.

Spain and Mexico, civil law countries, influenced the way property laws developed in the western United States. Early community property legislation was enacted in this region. One of the earliest mentions of the distinction between the wife's separate property and common property is in the California Constitution of 1849: Section 14: “All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife in relation as well to her separate property, as to that held in common with her husband.”23

Although the states passed legislation naming marital property as community property, husbands were the ones who managed and disposed of the property. Only if the husband died was the wife allowed to manage the property, as this 1879 Texas law illustrates:

Art. 2181. The surviving wife may retain the exclusive management, control and disposition of the community property of herself and her deceased husband in the same manner, and subject to the same rights, rules and regulations as provided in the case of a surviving husband, until she may marry again. . . . .

Art. 2852. All property acquired by either husband or wife during the marriage except that which is acquired by gift, devise or descent shall be deemed the common property of the husband and wife, and during the coverture may be disposed of by the husband only.24

Slavery and Indentured Servants

Just as a high premium has always been placed on real property, personalty has been valuable and its ownership the subject of law and contested in court as well. Before the Civil War, slaves and indentured servants were considered personal property, and they or their descendants could be sold or inherited like any other personalty. Like other property, human chattel was governed largely by laws of individual states. Generally, these laws concerning indentured servants and slaves did not differentiate between the sexes. Some, however, addressed only women. Regardless of their country of origin, many early immigrants were indentured servants, people who sold their labor in exchange for passage to the New World and housing on their arrival. Initially, most laws passed concerned indentured servants, but some time around the middle of the seventeenth century, colonial laws began to reflect differences between indentured servants and slaves. More important, the laws began to differentiate between races: the association with “servitude for natural life” with people of African descent became common. Re Negro John Punch (1640) was one of the early cases that made a racial distinction among indentured servants.25

Virginia was one of the first states to acknowledge slavery in its laws, initially enacting such a law in 1661.26 The following year, Virginia passed two laws that pertained solely to women who were slaves or indentured servants and to their illegitimate children. Women servants who produced children by their masters could be punished by having to do two years of servitude with the churchwardens after the expiration of the term with their masters. The law reads, “that each woman servant gott with child by her master shall after her time by indenture or custome is expired be by the churchwardens of the parish where she lived when she was brought to bed of such bastard, sold for two years. . . .”27

The second law, which concerned the birthright of children born of Negro or mulatto women, would have a profound effect on the continuance of slavery after the slave trade was abolished— and on the future descendants of these women. Great Britain had a very structured primogeniture system, under which children always claimed lineage through the father, even those born without the legitimacy of marriage. Virginia was one of the first states to legislate a change:

Act XII

Negro womens children to serve according to the condition of the mother.

WHEREAS some doubts have arrisen whether children got by any Englishman upon a Negro woman should be slave or ffree, Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shalbe held bond or free only according to the condition of the mother, And that if any christian shall committ ffornication with a Negro man or woman, hee or shee soe offending shall pay double the ffines imposed by the former act.28

Most slave states enacted similar laws. After the slave trade officially ended, many slave owners tried to ensure sufficient numbers of slaves were available to run their plantations. Young slave women of breeding age became more valuable. There are a number of court cases where slave women either killed their masters who forced them to have sexual relations or killed the children rather than have the children enslaved.29

Miscegenation laws, forbidding marriage between races, were prevalent in the South and the West. Because English masters had had little regard for indentured servants of non-Anglo ethnic groups, they allowed and sometimes encouraged commingling of their servants. Being seen in public or bringing legitimacy to these relations, however, was not lawful. This is evidenced by a court decision from 1630, the first court decision in which a Negro woman and a white man figured prominently. Re Davis (1630) concerned sexual relations between them, the decision stating, “Hugh Davis to be soundly whipt . . . for abusing himself to the dishonor of God and shame of Christianity by defiling his body in lying with a Negro, which fault he is to actk. next sabbath day.”30

Virginia passed its first miscegenation law in 1691 as part of “An act for suppressing outlying Slaves.”

And for prevention of that abominable mixture and spurious issue which hereafter may encrease in this dominion, as well by negroes, mulattoes, and Indians intermarrying with English, or other white women, as by their unlawfull accompanying with one another, Be it enacted by the authoritie aforesaid, and it is hereby enacted, that for the time to come, whatsoever English or other white man or woman being free shall intermarry with a negroe, mulatto, or Indian man or woman bond or free shall within three months after such marriage be banished and removed from this dominion forever. . . .31

Another section of the law closed the loophole created by the 1662 birthright law, which mandated that technically, children born of a free white mother and Negro father were free. This amendment stated that a free white woman who had a bastard child by a Negro or mulatto had to pay fifteen pounds sterling within one month of the birth. If she could not pay, she would become an indentured servant for five years. Whether or not the fine was paid, however, the child would be bound in service for thirty years.

The laws that restricted slaves or indentured servants addressed the owners and would penalize them for breaking the law. It would have been difficult to penalize someone who was a slave for life; laws governing their condition allowed them to be whipped, beaten, or killed under certain circumstances. Nor could they go to court to seek redress. It was not permitted for a colored person to testify against a white Christian, as illustrated by the 1717 Maryland law:

II. Be it Therefore Enacted, by the right honourable the Lord Proprietary, by and with the advice and consent of his Lordship's Governor, and the Upper and Lower Houses of Assembly, and by the authority of the same, That from and after the end of this present session of assembly, no Negro or mulatto slave, free Negro, or mulatto born of a white woman, during his time of servitude by law, or any Indian slave, or free Indian natives, of this or the neighbouring provinces, be admitted and received as good and valid evidence in law, in any matter or thing whatsoever depending before any court of record, or before any magistrate within this province, wherein any christian white person is concerned.32

Against these overwhelming restrictions, there were a number of court cases in which slaves filed suit seeking their freedom or freed Negroes claimed property that had been inherited from their former owners. Elizabeth Freeman (1732/ 34-1829), a slave, presented her case for freedom in a Massachusetts court pro se in 1783 and won.33 In addition there were the cases where the slave or freed Negro was the defendant; Celia, a Slave is a narrative account of such a trial in Missouri in 1855.34

White women were often involved in litigious situations involving slaves through the workings of the dower laws. In some states women could inherit personalty but could only receive a life estate in real property.35 This situation created many problems, particularly if slaves were needed to make profits from the land. For example, if a woman chose to free her inherited personalty at death, her descendants would have no one to work the land unless they farmed it with paid workers or purchased new slaves. Frequently, wills or contracts that granted freedom or conveyed realty or personalty as dower were contested in court.

The laws and resulting court cases that involved slavery and indentured servants have had a major impact on America, its men and women alike, in both the past and the present. Through the years, the laws that the states passed became steadily more restrictive toward slaves, mulattoes, and freed Negroes. In 1850, the federal government became involved with the passage of the Fugitive Slave Act, responding to strong lobbying efforts by slaveholders wanting to counteract abolitionist forces.36 In the face of these all-encompassing laws, women with extraordinary courage fought for a better life. For example, Harriet Tubman (ca. 1821-1913) returned to the South nineteen times to bring over three hundred fugitives to freedom, and Charlotte Forten (1837-1914), a free privileged Negro from Philadelphia, went to South Carolina during the early Civil War to teach “the contrabands of war.”37

In 1865, the Thirteenth Amendment to the United States Constitution ended slavery and involuntary servitude. Many laws that had been passed and judicial precedents that had been established before that date would not be changed until the middle or late twentieth century.

Women Lawyers

Women have been a part of the legal system since the early years of this nation, but for a long time, they were prohibited through various means from practicing law. There have been some exceptions. Margaret Brent (ca. 1601-1671), for example, arrived in the New World in 1638, received a land grant in St. Mary's City, and became executrix for Governor Leonard Calvert of Maryland. She appeared before the provincial court to file suits against her own debtors and to plead cases for others.38 Luce Terry (1730-1821) in 1796 was “the first voice of a black woman in the nation to influence law before a court on which a member of the U.S. Supreme Court sat when she gave an oral argument in a Vermont court before Justice Samuel Chase who was riding the circuit in New England.”39

Initially, women were denied admission to law schools, and later they were denied admission to state bar associations. State legislative bodies or the administrative offices of a state's supreme court determine the requirements for bar admission and the codes of professional ethics. Myra Bradwell (1831-1894), for example, filed a petition with the U. S. Supreme Court to appeal the decision of the Illinois Supreme Court that denied her admission to the state bar in 1872 after she had completed her legal studies and passed the bar examination.40 Her argument was based on the Immunities and Privileges Clause of the Fourteenth Amendment, which says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . .”41 The U.S. Supreme Court ruled that the immunities and privileges clause did not apply to the “right to admission to practice in the courts of a State,” and thereby set a precedent of noninterference by the federal government in state employment affairs that would remain in place for decades. The justices conceded that Mrs. Bradwell was a “citizen” according to the Constitution, but the fact that she was married presented the Court with problems. Justice Bradley concurred in the Court's opinion, and his view of women would prevail in future judicial opinions:

It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.42

In 1893 Belva A. Lockwood (1830-1917), a trained attorney who was the first woman admitted to practice before the U.S. Supreme Court, filed suit for mandamus in this same court to force the Commonwealth of Virginia to admit her to the state bar. Stating its precedent, the U.S. Supreme Court “denied leave” to bring her argument:

In Bradwell v. the State, 16 Wall. 130, it was held that the right to practise law in the state courts was privilege or immunity of a citizen of the United States; that the right to control and regulate the granting of license to practise law in the courts of a State is one of those powers that was not transferred for its protection to the Federal government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license.43

Belle Babb Mansfield (1846-1911), the first woman admitted to a state bar in the United States, was formally admitted to the Iowa State Bar in June 1869 after a ruling in the Iowa courts in her favor.44 Charlotte E. Ray (1850-1899 or 1900), a Howard University graduate, was the first African American woman lawyer; she was admitted to the District of Columbia Bar in 1872 without a fight because she applied for admission under the name C. E. Ray and the admissions committee thought she was male.45

Today women lawyers are enjoying opportunities that would surprise and delight women of the nineteenth and early twentieth centuries. An 1890 commentary by Lelia Robinson (1850-1891), the first woman admitted to the Massachusetts bar, traces the beginnings:

[B]ut it remained for the United States to inaugurate the era of the woman lawyer of today. And this was so short a time ago,—for the woman lawyer in the abstract has not yet attained her majority,—that the novelty of her very existence has scarcely begun to wear off, and the newspapers publish and republish little floating items about women lawyers along with those of the latest sea-serpent, the popular idea seeming to be that the one is about as real as the other.46

As the woman lawyer is taken increasingly more seriously, books for women attorneys address such issues as how to become partners in large law firms, “rain-making (or generating business for a law firm),” and marketing as a sole practitioner. More important, women attorneys are receiving favorable decisions in court concerning their rights as attorneys, not just their right to be members of a state bar.47

State Suffrage Laws

When it was ratified in 1920, the Nineteenth Amendment to the United States Constitution granted the right to vote to women. Before that time, some states had passed legislation allowing women to vote, beginning with Wyoming in 1869:

Be it enacted by the Council and House of Representatives of the Territory of Wyoming:

Sec. 1. That every woman of the age of twenty-one years, residing in this territory, may, at every election to be holden under the laws thereof, cast her vote. And her rights to the elective franchise and to hold office shall be the same under the election laws of the territory, as those of electors.

Sec. 2. This act shall take effect and be in force from and after its passage.

Approved, December 10th 1869.48

Western territories such as Colorado, Utah, and California followed Wyoming's example in the years from 1869 to 1911. Other states and municipalities granted women limited suffrage, like Kentucky, which gave widows with children the right to vote in school elections as early as 1838.49 During the women's suffrage movement, New Jersey became a rallying cry for the early suffragists in their demonstrations and court cases. Interestingly, New Jersey had given women who met the enumerated requirements the right to vote in its 1776 constitution:

IV. That all inhabitants of this Colony, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote for Representatives in Council and Assembly; and also for all other public officers, that shall be elected by the people of the county at large.50

Sixty-four years later, however, the state constitution of 1844 took away those suffrage rights, regardless of a woman's standing, stating that “One. Every white male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this State one year . . . .” would be entitled to vote.51

To force the issue of national suffrage, women filed court cases. The case of United States v. Susan B. Anthony was a highly publicized one.52 When Anthony tried to vote in New York for a member of Congress in 1872, the United States brought criminal charges against her. The court found Susan B. Anthony guilty and fined her $100 plus court costs. That same year, Mrs. Virginia Minor (1824-1894), a Missourian, attempted to register to vote, despite a Missouri statute limiting voting rights to the “male citizen of the United States.” Eventually, the U.S. Supreme Court heard Minor's case and decided in favor of the state: “Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we Affirm the Judgment.”53 Because the various state laws on voting rights were arbitrary, it was necessary for the suffragists to mount a national effort for securing the franchise. The Nineteenth Amendment gave women some leverage in the electoral process.

Protective Legislation

Before the passage of the Civil Rights Act of 1964, a federal law, employment issues that affected women were governed solely by state law. After the CivilWar, large numbers of women went to work outside their homes. In his speech before his colleagues in the U.S. House of Representatives to encourage the extension of equal suffrage in Alaska on Wednesday, April 24, 1912, Congressman Edward T. Taylor of Colorado stated:

But today one-fifth of all the women of this country are compelled to earn their own living by their daily labor. Nearly 7,000,000 women are wage earners today, and the number is constantly increasing. Woman suffrage is not responsible for bringing about that condition. It is the economic change that is going on in the life of this Republic. If the right to vote was taken away from the laboring men of this country tomorrow, they would within one year, and in many places within one week, be reduced to a condition of practical slavery; and it is little less than inhuman to compel the 7,000,000 women to work in this country under conditions that would be absolutely intolerable to men.54

These women were generally single, widowed, or had been deserted. Some of them held jobs as school teachers or worked in other professions. Most jobs held by women were low-paying and involved substandard conditions. Some suffrage organizations advocated improvement of working conditions for women. These groups were largely responsible for the changes in labor laws that are referred to as “protective legislation.”

Protective legislation limited the number of hours that a woman or child could work in certain jobs and guaranteed them a minimum wage. The legal result, however, was that men and women were treated differently in the work place. The major justifications were that (1) physical differences between men and women would make it dangerous for women to work (2) the chronic fatigue of long hours would result in the deterioration of women's health and (3) future generations would be affected by this deterioration in women's health.55 Wisconsin, the first state to pass this legislation, enacted a protective law in 1867, but a law passed in Massachusetts in 1874, and amended in 1902, provided the most common model:

No woman shall be employed in laboring in a manufacturing or mechanical establishment more than ten hours in any one day, except as hereinafter provided in this section, unless a different apportionment in hours of labor is made for the sole purpose of making a shorter day's work for one day of the week; and in no case shall the hours of labor exceed fifty-eight in a week. . . .56

Although the laws were designed to protect the working woman's health, welfare, and morals until she married, not all employers and employees were satisfied with the legislation. Employers filed suit to have the statutes voided for being unconstitutional. Muller v. Oregon was one of the most famous of these cases.57 In it, the U.S. Supreme Court upheld the constitutionality of such laws. Oregon's defense team was led by Louis D. Brandeis, a progressive attorney who became an associate justice of the Supreme Court before Muller was decided.58

Promulgation of minimum wage laws for women in the states followed their legislation of maximum hours. An example is the 1918 District of Columbia law that later became the subject of litigation:

Sec. 23. That this Act shall be known as the “District of Columbia minimum-wage law.” The purposes of the Act are to protect the women and minors of the District from conditions detrimental to their health and morals, resulting from wages which are inadequate to maintain decent standards of living; and the Act in each of its provisions and in its entirety shall be interpreted to effectuate these purposes.59

Employers contested these laws too; law suits were filed declaring them unconstitutional and in violation of the liberty-of-contract doctrine.60 In 1923, Adkins v. Children's Hospital was appealed to the U.S. Supreme Court, which ruled the law unconstitutional.61 Other state courts, following the precedent set by the Supreme Court, ruled that their state statutes were likewise unconstitutional. Fourteen years later, however, the U.S. Supreme Court reversed its decision and held that a law concerning the minimum wage for women in the State of Washington was constitutional.62

Although these laws guaranteed a minimum wage for women and children, they created unintentional inequities. Protective legislation gave courts the grounds for rendering inequitable decisions. It was not until the Civil Rights Act of 1964 that women enjoyed legislation granting equality in the workplace and the firm legal grounds to enforce such laws in court.

In employment, as in suffrage and possession of property, the legal history of women's struggle for equality mirrored what was happening in the society at large and amplifies our understanding of it.

Federal Law

Two examples of federal law illustrate how federal and state laws complement one another and show the role of the courts and executive agencies in carrying out the laws—sometimes to the benefit and sometimes to the detriment of women.

Civil Rights

The Civil Rights Act of 1964 is generally perceived as having granted women more freedom in the workplace and a right to expect equal treatment.63 Despite glass ceilings and other impediments, the passage of this act was a major legal victory. It was the cumulation of several struggles that began early in United States history.

The Civil Rights Act of 1964 exemplifies how various categories of law interact. As statutory law, the act forbade gender-based discrimination in the employment arena:

§ 703. (a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.64

The courts broadened the scope of the law when interpreting the statutory language. For instance, the court introduced the concept of “hostile environment” as a criterion to be used to determine whether or not the law had been violated:

Since the Guidelines were issued, courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. As the Court of Appeals for the Eleventh Circuit wrote in Henson v. Dundee, 682 F.2d 897, 902 (1982): “Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.”

Accord, Katz v. Dole, 709 F.2d 251, 254-255 (CA4 1983); Bundy v. Jackson, 205 U.S.App.D.C., at 444-454, 641 F.2d, at 934-944; Zabkowicz v. West Bend Co., 589 F.Supp. 780 (ED Wis.1984).65

As the number of court cases and judicial precedents increased, the body of common law grew and expanded the concept that originated from Title VII of the Civil Rights Act of 1964.

In accordance with legislative language and judicial interpretations, various administrative agencies further delineated the statute by implementing affirmative action programs with guidelines that were applicable only to a specific agency, thus creating a body of regulatory law. An example from the Department of Justice:

Subpart A—Equal Employment Opportunity within the Department of Justice

AUTHORITY: 5 U.S.C. 301, 28 U.S.C. 509, 510; E.O. 11246, 3 CFR 1964-1965 Comp., p. 339; E.O. 11478, 3 CFR 1966-1970 Comp., p. 803.

§ 42.1 Policy

(a) It is the policy of the Department of Justice to seek to eliminate discrimination on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, political affiliation, age, or physical or mental handicap in employment within the Department and to assure equal employment opportunity for all employees and applicants for employment.

(b) No person shall be subject to retaliation for opposing any practice prohibited by the above policy or for participating in any stage of administrative or judicial proceedings related to this policy. [Order No. 2037-96, 61 FR 34730, July 3, 1996; 61 FR 43119, Aug. 20, 1996.]66

When you try to locate law concerning a specific aspect of the Civil Rights Act, it is important to review all of these sources to fully understand the issue.

Often, in order to learn why a law was enacted or how the law is intended to apply, you must also review the legislative history documents promulgated during the consideration of the passage of the law. These include U.S. House of Representatives and Senate bills, congressional committee reports, hearings transcripts, and the Congressional Record of debates.67 Using the Civil Rights Act of 1964 as an example, we can look at the fact that the Congressional Record reports that an amendment adding women to the protected class was offered by Congressman Howard Smith of Virginia during floor debate.68

Amendment offered by Mr. Smith of Virginia: On page 68, line 23, after the word “religion,” insert the word “sex”. . . .

Now, I am very serious about this amendment. It has been offered several times before, but it was offered at inappropriate places in the bill. Now, this is the appropriate place for this amendment to come in. I do not think it can do any harm to this legislation; maybe it can do some good. I think it will do some good for the minority sex.69

Although women have worked outside the home since the beginnings of this country, they did not possess the legal right to challenge inequities in the workplace. When women gained legal equality in the workplace, federal statutory law created rights and remedies based on which women could file suit against an employer or potential employer for employment discrimination.

Legal history shows that women have not always possessed this right by either federal or state law, resulting in there being few remedies available to them in court.

Nevertheless there have been many suits filed. Often these resulted in dismissal “for lack of a cause of action” because of the grounds on which they were brought. Nineteenth-century women filed suits against discrimination based on the Fourteenth Amendment's privileges and immunities clause and failed to win favorable results. Today, women file suits based on the Fourteenth Amendment's equal protection clause and on the Civil Rights Act of 1964, Title VII, and win favorable decisions. As a result, a considerable body of precedent has been set in the court, giving women the rights and remedies they need to enforce equal treatment in employment settings.

Immigration

The Immigration Act of 1875 was the first immigration law that excluded groups of people from the United States—and women were part of that exclusion. Commonly referred to as the Asian Exclusion Act, this legislation prohibited the importation of Chinese labor forces who did not voluntarily consent to come to work in America and Chinese women for the purposes of prostitution: “Sec. 3. That the importation into the United States of women for the purposes of prostitution is hereby forbidden.”70 In 1903 the immigration law was amended to include in the exclusion any woman or girl, regardless of her country of origin. The 1903 law read: “Sec. 3: That the importation into the United States of any woman or girl for the purposes of prostitution is hereby forbidden.”71 Not until 1910 were the words “woman or girl” removed from the law, and it was amended to read, “That the importation into the United States of any alien for the purpose of prostitution or for any other immoral purpose is hereby forbidden.”72 The same year, the Mann Act, or White Slave Traffic Act was passed, which punished those who imported or transported women across state lines for immoral purposes.73

Although the laws were enacted to limit the trafficking of women for prostitution, they were used in a negative way to prevent women who were single and unemployed from entering the United States when they did not appear to have a means of support. The immigration laws enacted from 1875 to 1910, in conjunction with the prevailing opinion that the European countries were encouraging their paupers and undesirables to emigrate, assumed that single women would become wards of the state or turn to prostitution in order to make a living.74 Even though these laws were passed during the late nineteenth and early twentieth centuries, some of the views they supported remained entrenched well into the late twentieth century.

The Law Library of Congress has a wealth of material that provides sources for research in women's history, in both the basic and the more tangential issues that have had an impact on women's individual lives and on the society in which they have found themselves. Legal materials add a dimension to scholarly studies that has not often been exploited. Although the law may not be as immediately interesting as journals or scrapbooks of individual women, the fact that the legal community and the people who formed it took the time to legislate and later to litigate an issue indicates that such an issue was integral to the times in which they lived. To omit a consideration of how the law developed is to disregard a crucial aspect of the lives of women.

I would like to thank the editorial team and academic advisers for their challenging questions and comments, my law librarian colleagues for their time and research skills, and those colleagues who encouraged me to make “how to find the law” an integral part of this guide.