THE LEGAL STATUS OF WOMEN IN THE UNITED STATES OF AMERICA Part I. Introduction and Historical This report is designed to give the reader a fair grasp in small compass of women's special position under the law in the dual form of government-Federal and State-of the United States of America. Sir Matthew Hale, eminent English jurist of the seventeenth century, is credited with the remark that of two ends to the study of law, the first is * * to fit a man with so much knowledge as will enable him to understand his own estate, and live in some repute among his neighbours in the country.1 At least the female half of the inhabitants of the United States have a direct concern in the content of this report if for no other reason than to understand their "own estate." The one-fourth of the gainfully employed persons who are women want particularly to be informed on their basic contract and property rights and obligations, as well as the special bearing on these of family relationships. Within recent years efforts have been made to bring together the laws on these subjects, a difficult task in a federated government with some 50 jurisdictions having separate powers, for as is well said by Professor Wigmore, prominent American lawyer and university dean: * The fact that there are half a hundred practically independent jurisdictions must be conceded and faced. What is the law? is a question which cannot be answered except as with 50 tongues speaking at once. What the law is in Illinois may well be not the law in Massachusetts or in California.2 More than 15 years ago the National League of Women Voters undertook such a research project. Its results were published in 1924 and revised in 1930.3 Developments in the law since 1930 made current research on a broader basis essential to an adequate consideration of woman's place in government. The need for this has been shown by continuous inquiry from individuals, organizations, and libraries addressed to the Women's Bureau as the agency of government charged with the conservation and advancement of women's welfare. 1 Hale, Sir Matthew. preface, p. vii. History of the Common Law of England. 6th ed. (1820), 2 Wigmore, John H. Treatise on Evidence. 2d ed. (1923), vol. 1, preface, p. xv. A Survey of the Legal Status of Women in the Forty-Eight States. National League of Women Voters, 726 Jackson Place, Washington, D. C. When, therefore, the League of Nations invited the United States Government to provide such information, the Women's Bureau undertook its preparation. The report of this survey, with similar reports from other countries, was intended by the League to be used to sketch in broad outline the legal status of women throughout the world. What the Study Covers. This report presents, as of January 1, 1938, the special status of women in certain of their civil and political relations in the Federal Government, each of the 48 States, and the District of Columbia.* The phases selected are those within which, as a matter of history and of current record in statutes and decisions, the major legal distinctions between men and women occur. Necessarily limited, the Bureau's study does not include labor law (reported in other Women's Bureau publications 5), criminal law, domestic relations law applicable on divorce or separation, tax law, nor executive orders and administrative rulings. For basic data the survey relies on an original search of statutory and case law, controlling as of January 1, 1938, on the topics selected for study. The legal sources are shown by detailed references throughout the report. Abstracts for the 48 States and the District of Columbia, compiled from the respective constitutions, statutes, and decisions, have been issued as Women's Bureau Bulletins 157-1 (Alabama) to 157-49 (Wyoming). (See last paragraph on p. XIII.) The material is presented in four parts: Part I. Introduction and Historical Background. III. Present Legal Status of Women in Summary Form. IV. Appendix, containing glossary, bibliography, and forewords of earlier studies. A SPECIAL PLEA In this work, when it shall be found that much is omitted, let it not be forgotten that much likewise is performed; * Dr. Samuel Johnson, in preface to his dictionary. The Federal Territories have been omitted to expedite publication of the report. For the purpose of this survey, the District of Columbia is considered as a State. For additions made in 1938, 1939, or 1940 to the laws of a few States, see p. 89. 5 For information as to labor laws affecting women, see other Women's Bureau bulletins and mimeographed reports dealing with these, a list of which can be obtained from the Bureau, BACKGROUND OF THE LAW The rules that make up the whole body of law in the United States of America come from the English common and statutory law of the Revolutionary period, from civil law derived from European origins, and from customs and principles wrought out of American experience. These rules include constitutional provisions, legislative acts, and court decisions. Taken as a whole they compose jurisprudence that is, "the science of the just and the unjust."" According to their form, they are known as the common or so-called unwritten law, and statutory or written law. WHAT IS COMMON LAW? The phrase "common law" may have any one of several applications. In its broadest sense the term means "those rules or precepts of law in any country, or that body of its jurisprudence, which is of equal application in all places, as distinguished from local laws and rules." Applied to systems of law, in this country it indicates the system which either prevails already or "is steadily winning its way in English-speaking countries, as distinguished from the civil law with its Roman law foundation." Concerning the primary source of American common law and its importance, Chancellor Kent, early American jurist, explains that—9 * It is the common jurisprudence [of the people] of the United States, and was brought with them as colonists from England, and established here, so far as it was adapted to our institutions and circumstances. * * It fills up every interstice, and occupies every wide space which the statute law cannot occupy. * * A great proportion of the rules and maxims which constitute the immense code of the common law, grew into use by gradual adoption, and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. A modern commentator distinguishes original sources of the common law as follows: The unwritten or common law ancient customs, expressive of legal rights, which have been transmuted into positive law by decisions of courts of justice. To this he would add "that body of the law which has its origin in adjudication," of which he says: * the courts have been intrusted with and have always exercised * * * a certain power of making rules for cases not previously provided for by any well-established principle, and have even modified Dig. I. 1. 10. 2. (Pandects of Justinian). 715 Corpus Juris Secundum, Common Law, sec. 1, p. 611. Stone, Harlan Fiske. The Common Law in the United States, from Report of the Harvard Law School Conference on The Future of the Common Law. 1937. p. 121. Kent, James. Commentaries on American Law, vol. I, pp. 342-343, 471. 320029°-41- -8 5 existing laws from time to time, in order to carry out current ideas of what is equitable, or to adapt them to the changing needs of society.10 In the realm of the Federal courts, strictly speaking, there is no common law of the United States in the sense of a national customary law." As was said by the supreme court of Montana: * * the courts of the United States enforce the law as they find it in the several States and apply the common law, as a national institution, in the interpretation of the Constitution.' 12 Of the situation among the States, an authority on American constitutional law says: The common law of the States consists of the principles of the English common law, developed and modified by American custom and judicial precedent. Having this great common substratum of the English commonlaw principles, the nonstatutory law of the several States is, in very many respects, the same throughout the United States. But in other respects, statutory enactment and divergent customs and judicial determinations have led to important differences. In general, however, excepting where statutes have expressly amended the English common law as it was at the time of the separation from England, or where clear judicial dicta to the contrary are to be found, the general doctrines of the English common law are held to be in force.1 WHAT IS STATUTORY LAW? The system of governing rules issued in written form by a sovereign power is known as statute law, that is, the law effected by legislative enactment in Federal and State jurisdictions. Legislative acts may, and often do, simply declare common-law principles without change, or may change a common-law rule in part, or may sweep aside a rule of the common law. Many of the statutes in derogation of common-law rules are based on equitable principles drawn from the Roman civil law. For example, inheritance statutes in the United States of America mainly follow the civil-law pattern. A constitution, as well as a current legislative enactment, is a statute framed by a sovereign authority (in this country, by representatives of the people convened in a deliberative body). This is a fact not always understood, since a construction is basic in nature, more formal in structure, and more difficult to amend than a statute enacted in a regular legislative session. Of the written law the Supreme Court of the United States has said: * * the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.14 The legislative history of the various States demonstrates clearly this function of statutes in improving the legal status of women. Committing a principle of law to the formal diction of a statute imparts authority, dignity, and permanency to State policies, and renders them definite as well as uniform within the domain; but at 10 Cooley, Roger W. Brief Making and the Use of Law Books, 5th ed. (1926), p. 5. 11 15 Corpus Juris Secundum, Common Law, sec. 16, p. 630. 12 State ex rel. Powell v. State Bank (1931), 90 Mont. 539, 557; 4 Pac. (2d) 717; 80 A. L. R. 1494. 18 Willoughby, W. W. The Constitutional Law of the United States, 2d ed. (1929), pp. 1306-1307. 14 Munn V. Illinois (1876), 94 U. S. 113, 134; 24 S. Ct. 77. the same time, it narrows to the specific terms of the act the scope of rights or restrictions dealt with, and leaves beyond its control numerous cases not covered by the rule it expresses. This latter fact accounts for and justifies the existence of two contemporary systems of law (common and statutory). Each operates as a complement to the other, in the effort to adapt rules of government to realities among the governed. When a rule of law has been crystallized into a statute, particularly into a constitution, changes in its literal form must be by legislative action, often with consequent deliberation, delay, and perhaps compromise. The restraint entailed by this method of change in statute law usually is desirable and necessary to encourage full consideration of the legislative, political, or social problems involved. The relative bulk of common law and statute law in this country is not generally considered by lay persons. An authority on interpretation of statute law gives as his opinion the following: Statutes are but a small part of our jurisprudence. The principles of the common law pervade and permeate everything which is subject to legal regulation. Such law defines rights and wrongs of every description and the remedies for public and private redress. By its principles statutes are read and construed. They supplement or change it, and it adjusts itself to the modification and operates in conjunction and harmony with them. If words from its vocabulary are employed in them it expounds them. If the statutes are in derogation of it, it yields and bides its time; if they are cumulative, it still continues. Rules of interpretation and construction are derived from the common law, and since that law constitutes the foundation and primarily the body and soul of our jurisprudence, every statutory enactment is construed by its light and with reference to its cognate principles." 15 Community-Property Law in the United States of America. A branch of statutory law governing property rights between husband and wife, called the law of community property, is in force with varying provisions in eight of the States: Louisiana retains, with modifications, the community law of France; Arizona, California, Idaho, Nevada, New Mexico, Texas, and Washington trace their community systems to Spanish or Mexican sources. This maritalproperty law is thought to be of Teutonic origin, though its early history is not fully known. In theory it subscribes to equal ownership by husband and wife in all property acquired by either of them during marriage except such as is inherited, received as a gift, or purchased with separate funds owned before marriage. However, the actual control of much of this property is given to the husband. Due to varied statutory forms and interpretations of the law in the several States using the system, it does not have uniform application among them. FUNCTIONS OF THE COURTS IN ADMINISTRATION OF LAW The common-law system is distinguished for its flexibility, its ease of adaptation to changed conditions in a developing society. This 15 Sutherland, J. G. Statutory Construction. 1904, vol. II, p. 860. |