LAW LIBRARY READING ROOM

James Madison Memorial Building, 2nd floor, room LM 201

Hours: Monday through Saturday, 8:30 a.m. to 5:00 p.m.

Closed Sunday and federal holidays.

Telephone: 202 707-5079; TTY 202 707-9949

Fax: 202 707-3585

Address: Law Library of Congress, 101 Independence Avenue, SE, Washington, DC 20540-3000

Email: law@loc.gov

Web site: <http:/www.loc.gov/rr/law>

Access and use: In the open bookstacks of the Law Library Reading Room, federal laws, current state laws, administrative materials, and treatises are immediately accessible to the public. Most of the law collections, however, are located in closed bookstack areas that are not open to readers. These materials must be requested in the Law Library Reading Room, and you should allow approximately one hour for their retrieval. To request materials, you will need a valid Library of Congress reader identification card. Professional legal reference specialists are available to help you. In addition, the Law Library's staff of foreign-trained lawyers is available on a limited basis to respond to public reference questions concerning foreign laws, administrative regulations, and court decisions.

To use the Law Library Rare Book Collections, you will need to follow security procedures. First make an appointment with the rare book law librarian to identify the material you need. Subject catalogs and other bibliographical guides will help you identify desired items as Law Library materials. If the rare book librarian determines that no alternate sources are available, you may complete a registration form and be given access to the rare book materials.

SAMPLE LCSH: Subject headings for women in Law Library catalogs follow the pattern used for the General Collections: Women--Legal status, laws, etc.; Women--Employment--Law and legislation; Women (International law); Women teachers--Legal status, laws, etc.; Women--Suffrage--Law and legislation; Women judges. Some headings, however, are unique to law: Abortion--Finance--Law and legislation; Trials (Divorce); Trials (Rape); Dower; Widow's allowance; and Lawyers' spouses (formerly Lawyers' wives) are examples.

BIBLIOGRAPHY:

Cohen, Morris, Robert C. Berring, and Kent C. Olson. How to Find the Law. 9th ed. St. Paul: West Publishing Co., 1989.

Cohen, Morris L., and Kent C. Olson. Legal Research in a Nutshell. 7th ed. St. Paul: West Publishing Co., 2000.

Jacobstein, J. Myron, Roy M.. Mersky, and Donald J. Dunn. Fundamentals of Legal Research. 7th ed. Westbury, N.Y.: The Foundation Press, 1998.

Wren, Christopher, and Jill Robinson Wren. The Legal Research Manual: A Game Plan for Legal Research and Analysis. 2nd ed. Madison, Wis.: A-R Editions, 1996. Chapter 1.

PATHFINDER: Using Encyclopedias

If a social historian wanted to explore power relationships between husband and wife by examining terms of antenuptial agreements concerning children, she or he might begin by searching the index of Corpus Juris Secundum, where the researcher would find, among others, the entries "Antenuptial Contracts-Parent and child-religion, custody of children, Parent&C §28" and "religious education, Parent&C §14."

The subject "Parent & Child" is located in CJS, volume 67a, where the summary reads: "Religious education of children of tender years is a right and duty of parents; and where one parent has custody, such parent has the right to control the religious education of a child, except to the extent that an agreement providing otherwise is recognized. Library References: Parent and Child (key) 2(1), 3.1(12)," giving the West key numbers, locators of related case law.

If the researcher were to search the index of the current edition of American Jurisprudence, on the other hand, she would find the topic "Antenuptial Settlements, obligations, and other matters--Children and minors--religious training, Par & C § 21." The summary statement for "Parent & Child," section 21, in volume 59 reads: "An agreement between the parents, antenuptial or otherwise, as to the religious training to be given their children, has usually been held to have no binding effect in proceedings involving custody. And it has been held that such an agreement does not bind the custodian. However, some courts have enforced such agreements, except where to do so would adversely affect the child's welfare."

Tracing antenuptial agreements back through earlier encyclopedias yields slightly different results. In Corpus Juris the heading "Antenuptial contract" has subheadings relating only to husband and wife. A cross-reference from "Antenuptial settlements" to "Marriage settlements, this index" leads to "Marriage Settlements--Children." Under "Parent and Child," however, CJ gives the subheading "Religious education and affiliations of child, Parent & C 7" about which the encyclopedia states: " . . . The general rule is that an infant is to be brought up in the religion of the father, . . . and an antenuptial agreement that the children shall be brought up in a different religion from that of the father is not binding at law or in equity."

In The American and English Encyclopedia of Law (1905), the term "antenuptial contracts" is subsumed under other headings. For instance, "Husband and wife," "Separate property of married women," and "Antenuptial settlements" are all under "Marriage settlements." The summary for "Parent and Child--Right of Custody--Religious Education" states: "In the United States this question seems not to have been considered. The duty of a parent to give religious instruction to his children and his right to do so without interference are recognized. . . ." However, the initial statement under the right of custody reads: "At common law the father has the paramount right to the custody of his children, as against the world."

Footnotes cite judicial opinions concerning these various issues. For the heading under "Parent and Child" [§ 7] 4. Religious Education and Affiliations of Child," which states that "an antenuptial agreement that the children shall be brought up in a different religion from that of the father is not binding at law or in equity," CJ provides a footnote citing Com. v. McClelland, 70 Pa. Super. 273 (1918). The case is found in Pennsylvania Superior Court Reports, volume 70, page 273, and concerns two children whose father was Protestant and whose mother was Catholic. Their father signed an agreement stating that he was willing to have his children raised in the Catholic faith. Their mother subsequently was institutionalized for insanity. At this point, the father began taking the children to his Protestant church. After the father's death, his in-laws protested the court's placement of his daughters with a Protestant family and filed suit, but the court decided to follow the wishes of the daughters.

It is in this way that a researcher can use legal encyclopedias to help her follow the gradual and complex evolution of custom, practice, and statutory, regulatory, and common law.

BIBLIOGRAPHY:

Catalogue of the Library of the Law School of Harvard University. Cambridge, Mass.: Harvard Law School, 1909. This catalog is an alphabetical listing of items available in 1909 in the Harvard Law School. It is one of the few indexes published during the early twentieth century and is a good source for finding trials and other legal items published during the nineteenth century and held in the rare book collections of the Law Library of Congress or other libraries.

Cohen, Morris L. Bibliography of Early American Law. Buffalo, N.Y.: William S. Hein & Co., 1998 (KF1 .C58 1998). This bibliography is excellent for determining the types of materials available for doing research and where, including the Library of Congress, to find them. Cohen's chapters on trials provide excellent access points to the American State Trials Collection.

Marvin, J. G. Legal Bibliography or a Thesaurus of American, English, Irish, and Scotch Law Books together with Some Continental Treatises. Philadelphia: T & J. W. Johnson, 1847. An alphabetical listing by title or author of works available during the period of its publication includes some entries that are annotated.

Soule, Charles Carroll. The Lawyer's Reference Manual. Boston: Soule and Bugbee, 1883. A subject index of law book and court report citations, the manual includes some entries that pertain to women, such as "Divorce," "Divorce and Matrimonial Causes," "Dower," and "Husband and Wife."

PATHFINDER: Property Rights

While reading an article on community property in New Mexico, you see a commentary on a court decision that interests you. A footnote gives the legal citation as McDonald v. Senn et al., 53 N.M. 198, 204 P.2d 990 (1949).¹ The Law Library of Congress has both reporters, New Mexico Reports (N.M.) and the Pacific Reporter, Second Series (P.2d), but you choose to use the Pacific Reporter, the regional reporter. As you begin reading the decision, you discover that the New Mexico community property law was adopted in common law in 1876; the statute was passed later. The statute was based on California law, which was modeled on the civil law of Spain and Mexico.

You are interested in looking at both the earliest statutes on community property in California and some judicial decisions interpreting those laws. You can either (1) find the case citations from California listed in the McDonald decision, or (2) find the statutory citations from California listed in the decision. The most expedient is to use the statutory citations.

The California statutory citation for community property, written in the dissent, is "Section 161a of the California Civil Code, . . . adopted in 1927."² Start your search for the earliest statutes with this citation to the law being interpreted here. In the Civil Code of the State of California . . . 1927, section 161a of the appendix is an amendment to an earlier law. Sections 159-181 in the main body of the Civil Code give the law antedating this amendment. Because this edition of the Civil Code is annotated, you find a short history of the legislation here. Following section 159, "Husband and wife. Property relations," you read:

Legislation §159. 1. Enacted March 21, 1872; based on Stats. 1850, p. 254, §§ 14, 15, 22, 23; Field's Draft, N. Y. Civ. Code, § 80. 2. Amended by Code Amdts. 1873-74, p. 193, inserting "in writing" after "may agree."³

To follow the tracings, first consult the Civil Code of the State of California, 1872. Section 164 of the code states: "All other property acquired after marriage, by either husband or wife, or both, is community property."⁴ The notes in the annotations indicate that the first mention of community property occurs in the California Constitution, 1849, Article XI. Sec. 14. The General Laws of the State of California, from 1850 to 1864, Inclusive quotes the section:

Husband and Wife

An Act defining the rights of husband and wife.

Passed April 17, 1850, 254.

§3564. Sec. 2. All property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.⁵

The California Constitution of 1849, Article XI: Promiscuous Provisions. 215. section 14, states: "All Property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterwards 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."⁶

Also interesting is a mention of a treatise entitled Civil Laws of Spain and Mexico, a translation of the civil law of Spain published in 1851, in the discussion of McDonald v. Senn. Chapter 4 of the treatise, "Rights and duties of Husband and Wife in relation to the property acquired during marriage, Section 1, Community of Goods," states: "Art. 43. The law recognizes a partnership between the husband and wife as to the property acquired during marriage, and which exists until expressly renounced, in the manner prescribed in Section 3."⁷

Court decisions can be found in the notes provided in the annotated codes or by using the state digests. In this instance, the Civil Code of the State of California is annotated and provides a number of citations to secondary sources: "1) California Jurisprudence: See articles Husband and Wife; Divorce and Separation, vol. 9, p. 821. 2) A.L.R. Notes: Liability of husband for services rendered by wife in carrying on his business, note 23 A.L.R. 18."⁸ (A.L.R. is American Law Reports.) The General Laws of the State of California is annotated also and provides a number of judicial decisions in the marginal notes: "Separate property of husband. 13 Cal. 9. 18 Cal. 654. Common property."⁹ The first, 13 Cal. 9, is a case named Barker v. Koneman (1859), an appeal from a district court concerning property left in trust for the widow. The case 18 Cal. 654, or Lewis v. Lewis, is an appeal from probate court in 1861 determining the value difference between the late husband's separate estate and the common property.¹⁰

Interpreting and tracing the citations to statutory law and court decisions may initially seem complex, but once you begin to find the relevant footnotes and recognize legal citations, the research process is the same as it is in other subject areas.

BIBLIOGRAPHY:

Blackstone, William. Commentaries on the Laws of England. Reprint, 1967; Oxford, 1803 (KF385 .B55 1967). This multivolume treatise, a standard for the study of British and early American law, should be consulted by any researcher who is interested in colonial law. It outlines and summarizes the common law of England.

Chused, Richard. "Married Women's Property Law, 1800-1850." Georgetown Law Journal 71: 1359. A law journal article that gives a good overview of this group of laws, it suggests locations of collections that would interest researchers and provides passage dates and statistics on the impact of legislation.

Hoff-Wilson, Joan. Law, Gender, and Injustice: A Legal History of U.S. Women. New York: New York University Press, 1991 (KF4758 .H64 1990).

Laws Respecting Women. London: St. Paul's Church-Yard, 1777 [Law E Treat ‘Laws’] {LLRBR}. Chronicling the laws affecting women in Great Britain, this treatise provides an eighteenth-century perspective. Interestingly, it presents some issues that society today would view as modern, for instance, the monetary payment a wife should receive if she and her husband agree to live separately.

Salmon, Marylynn. Women and the Law of Property in Early America. Chapel Hill: University of North Carolina Press, 1986 (KF524 .S24 1986). An excellent source for studying property laws in Massachusetts, Connecticut, New York, Pennsylvania, Maryland, Virginia, and South Carolina and their effect on women during the period 1750-1830. This overview addresses the impact these laws had on the social structure of the colonies.

BIBLIOGRAPHY:

Catterall, Helen Tunnicliff. Judicial Cases concerning American Slavery and the Negro. Reprint, New York: Octagon Books, 1968 (KF4545.S5 C3 1968).

Finkelman, Paul. Slavery in the Courtroom. Washington: Library of Congress, 1985 (KF4545.S5 A123 1985).

Giddings, Paula. When and Where I Enter: The Impact of Black Women on Race and Sex in America. New York: Bantam Books, 1985 (E185.86 .G49 1985).

Ham, Debra Newman, ed. The African American Odyssey. Washington: Library of Congress, 1998 (E185.53.W3 L53 1998).

McLaurin, Melton A. Celia, a Slave. Athens, Ga.: University of Georgia Press, 1991 (KF223.C43 M34 1991).

BIBLIOGRAPHY:

Drachman, Virginia G. Sisters in Law: Women Lawyers in Modern American History. Cambridge, Mass.: Harvard University Press, 1998 (KF299.W6 D7 1998).

Morello, Karen. The Invisible Bar: The Woman Lawyer in America 1638 to Present. New York: Random House, 1986 (KF299.W6 M67 1986). This treatise, an often-cited source, is an excellent historical account of women practicing law in the United States.

Robinson, Lelia. "Woman Lawyers in the United States." The Green Bag 2 (1890):10. In this popular magazine published in Boston in the 1890s, Robinson gives the contemporary view of women lawyers.

Smith, J. Clay Jr., ed. Rebels in Law: Voices in History of Black Women Lawyers. Ann Arbor: University of Michigan, 1998 (KF299.A35 R43 1998). This excellent chronicle of the African American woman's experience in law is told in the words of various authors. Although it describes some of the same hardships as other accounts of women lawyers, Rebels in Law is unusual in showing how these women had to struggle with other social restrictions, such as racism.