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Pathfinder: Using Legal Encyclopedias

This section offers a case study in how to do research using one specific type of source—legal encyclopedias—mentioned in the Legal Research Methodology section.

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 (CJS) 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).”
The West key numbers, listed at the end of the summary, are locators of related case law.

If the researcher were to search the index of the current edition of American Jurisprudence (AmJur), 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 (CJ) 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 & Child” 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.

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