Chapter 4

COMMON LAW, STATUTORY LAW,

AND ADMINISTRATIVE LAW
Solution Manual for Cengage Advantage Books
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Suggested Additional Assignments

Evolution of the Common Law
Ask students to summarize the common law principles of the bystander cases in the text and then create
their own bystander examples. First, students should write a two- or three-sentence summary of the law
given in each of these cases: Union Pacific Railway Co. v. Cappier, Carey v. Davis, Osterlind v. Hill,
Tarasoff v. Regents of the University of California, and Parra v. Tarasco. Then students should create their
own modern hypothetical bystander situation and provide brief arguments for and against liability. This
should help them see the gradual evolution of the law, and anticipate future changes in this doctrine.

Research: Legislative Process

Have students find a newspaper article on a bill that is working its way through Congress. They should
report on the bill's exact status: which house it is in, which committee is responsible for it, who favors and
opposes it, what interests are at stake, and what lobbyists have an interest in it. If the article makes no
mention of lobbyists, which ones would the students expect to be involved? What is their view of the
proposed legislation? Students may want to supplement the text by reading How Our Laws Are Made on
the Library of Congress’ THOMAS website (http://thomas.loc.gov/home/lawsmade.toc.html).

Research: Campaign Finance

Have students research campaign contributions made in a recent U.S. House or Senate campaign. Campaign
finance reports and data are available at the Federal Election Commission website at
http://www.fec.gov/disclosure.shtml. Students can track how much money each candidate received, the
identity of major contributors, which organizations spent money on electioneering communications, and
how much they spent.

1
2 Unit 1 The Legal Environment

Agency Law
Students should write one-paragraph descriptions of three federal or state agency regulatory programs that
affect their lives in some way. For example, a student could discuss airline regulation, food safety
inspection, automobile recalls, and so forth. Students should identify the agency involved, summarize the
regulatory scheme, and briefly explain how those regulations affect them.

Research: Regulated Industries

Ask students to identify what industry they intend to enter upon graduation. For example, banking, financial
planning, accounting, insurance, advertising, etc. Then ask students to research the various federal and state
regulations that apply to that industry and report to the class.

Chapter Overview
Chapter Theme
Law is complex. Law becomes less baffling when we understand the different types of law and how law is
made. This chapter examines Common Law, Statutory Law, and Administrative Law.

Common Law
The common law is judge-made law. It is the sum total of all the cases decided by appellate courts.

Stare Decisis
Stare decisis means “let the decision stand.” Once a court has decided a particular issue, the court
establishes precedent, and the court will generally apply the same rule in similar cases in the future.

A desire for predictability created the doctrine of stare decisis. Yet, there must also be flexibility in the law.
There must be some means to respond to new problems and a changing social climate.

Bystander Cases
The “bystander rule” is an example of the conflict between the need for predictability and for flexibility in
the law.

Historically, the common law rule about a bystander’s obligation was that a bystander had no duty to assist
someone in peril unless the bystander created the danger. Often criticized as harsh and cruel, courts
nonetheless followed this rule under the doctrine of stare decisis. The common law with respect to
bystander cases changed slowly, however, as courts over time found small exceptions to the rule.

Case: Tarasoff v. Regents of the University of California1

Facts: Prosenjit Poddar killed Tatiana Tarasoff. Tatiana's parents claimed that two months earlier Poddar
had confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the
University of California at Berkeley. They sued the university, claiming that Dr. Moore should have warned
Tatiana and/or should have arranged for Poddar's confinement.
Issue: Did Dr. Moore have a duty to Tatiana Tarasoff? If so, did he breach that duty?

1
17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 Supreme Court of California, 1976.
Chapter 4 Common Law, Statutory Law, and Administrative Law 3

Decision: Yes, Dr. Moore had a duty to Tatiana Tarasoff.

Reasoning: Under the common law, one person generally owes no duty to control the conduct of another
or to warn anyone who is in danger. However, courts make an exception when the defendant has a special
relationship to a dangerous person or potential victim. A therapist is someone who has just such a special
relationship with a patient.
It is very difficult to predict whether a patient presents a serious danger of violence, and no one can be
expected to do a perfect job. A therapist must exercise only the reasonable degree of skill, knowledge, and
care ordinarily possessed by others in the field. In this case, however, there is no dispute about whether Dr.
Moore could have foreseen violence or predicted that Poddar would kill Tatiana. Once a therapist
determines, or reasonably should determine, that a patient poses a serious danger of violence to someone,
he must make reasonable efforts to protect the potential victim. The Tarasoffs have stated a legitimate claim
against Dr. Moore.
Question: After the Tarasoff case, do people generally have a duty to come to the aid of someone in
danger?
Answer: No. The case merely carves one small exception in the general rule.
Question: What is the exception that this decision creates?
Answer: Once a therapist determines, or should have determined, that a patient poses a serious danger
of violence to others, he must act reasonably to protect the potential victim.
Question: Therapists hear patients' anger all day long. How can a therapist know for sure whether a
patient is serious in making a threat?
Answer: The therapist need not do a perfect job. He must analyze a patient the way a reasonable
professional therapist would. If he concludes that the patient poses a serious threat, he must act.

Additional Case: Hardingham v. United Counseling Service of Bennington County, Inc.2

Hardingham was a recovering alcoholic. Defendant United Counseling Service (UCS) gave him a job as an
emergency services counselor. Halpin, UCS's executive director, learned that Hardingham was again
drinking. Halpin and other UCS employees went to Hardingham's home, where they found him inebriated.
They saw him attempt to drink from a bottle apparently filled with windshield wiper fluid. They took the
bottle away and took Hardingham to the local emergency room. Hardingham refused to take a blood test
and the UCS employees neglected to tell the hospital that he had evidently been drinking wiper fluid.
Because Hardingham refused to cooperate with hospital employees, the police took him to a correctional
center. Overnight, Hardingham suffered severe distress and the police returned him to the hospital. Tests
revealed methyl alcohol in his blood, apparently from the wiper fluid. The substance left Hardingham with
permanent injuries, including blindness. He sued UCS and its employees under 12 V.S. A. §519.
Question: Had his rescuers spent a few moments advising emergency room personnel that Hardingham
had drunk windshield washer fluid, they might have saved him from blindness and other serious
injuries. Why doesn’t the court hold them liable for their failure to perform such a simple act?
Answer: The Vermont Good Samaritan statute3 states that a bystander who provides assistance to one
in distress is only liable if he commits gross negligence. The majority of the Vermont Supreme Court
ruled that no reasonable juror could find this to be gross negligence because the rescuers, after all,
probably saved Hardingham’s life.

2
672 A.2d 480, 1995 Vt. LEXIS 129 Vermont Supreme Court 1995
3
12 V.S.A. §519 (requires a bystander to become involved in an emergency).
4 Unit 1 The Legal Environment

Additional Case: Pehle v Farm Bureau Life Insurance Company, Inc.4

Facts: When they applied for life insurance from Farm Bureau Life Insurance Company ("Farm Bureau")
in 1999 Wyoming resident Gary Pehle and his wife, Renna, did not know they were infected with the
Human Immunodeficiency Virus ("HIV"). Farm Bureau collected the initial premium and arranged for the
Pehles to obtain blood tests as part of the application process. Farm Bureau forwarded the blood samples
for analysis to LabOne, an independent laboratory, which reported the Pehle’s HIV-status to the insurance
company. Farm Bureau then rejected the Pehle’s application and advised them that it would disclose the
reason for their rejection to their physician if they desired. The Pehle’s did not follow up to learn the reason
for the rejection.
Two years later Renna Pehle was diagnosed with AIDS. They looked into their medical records and learned
that Farm Bureau had known of their HIV-positive status when it rejected their life insurance application.
The Pehles sued Farm Bureau, LabOne, and LabOne’s medical director, Dr. J. Alexander Lowden, for
negligence, for failing to tell them they were HIV-positive. The District Court found that Wyoming law
recognized no duty running from a life insurance company to its applicants or from a laboratory hired by
the life insurance company to its applicants. The court granted summary judgment in favor of all three
defendants. The Pehles appealed.
Issue: Did Farm Bureau, LabOne, and Dr. Lowden have a duty to notify the Pehles of their HIV-positive
status?
Holding: The Circuit Court of Appeals affirmed the trial court’s grant of summary judgment in favor of
LabOne and Dr. Lowden and reversed its judgment in favor of Farm Bureau. The court concluded “that if
an insurance company, through independent investigation by it or a third party for purposes of determining
policy eligibility, discovers that an applicant is infected with HIV, the company has a duty to disclose to
the applicant information sufficient to cause a reasonable applicant to inquire further.” The Pehle’s
relationship with LabOne and its medical director was attenuated but they had “a good deal of contact” with
Farm Bureau. Wyoming law had not directly addressed this issue, so the court made “an Erie-guess as to
how the Wyoming Supreme Court would rule.”
Farm Bureau argued that there is a legal distinction between a duty arising from misfeasance—acting
wrongfully—and nonfeasance—failing to act. It argued that its failure to notify the Pehles was nonfeasance
and put it in the same position under common law as a rescuer with no duty to help. The court did not agree
for two reasons. First, it believed Farm Bureau’s actions could be characterized as either misfeasance or
nonfeasance so any legal distinction between the two was not useful: “[p]utting HIV-positive applicants on
notice of their infection could be considered a normal part of testing for HIV...” Second, “it is not clear
whether Wyoming accepts the binary act/omission distinction in tort.” Whether Farm Bureau had a duty to
notify the Pehles of their HIV-status depends on whether the law implies the existence of a confidential
relationship “of trust and confidence:”
By encouraging the Pehles to purchase life insurance through them, Farm Bureau purported to act with the
Pehles' best interests in mind. In submitting to a procedure for extraction and consenting to an examination
of their blood, the Pehles demonstrated that Farm Bureau had gained their confidence. We do not think that
insurance companies must exist to treat or diagnose HIV in order for a duty to arise that necessitates that
applicants be properly put on notice to inquire further.
Because there was a genuine issue of material fact as to whether Farm Bureau disclosed to the Pehles
“information sufficient to cause a reasonable applicant to inquire further” the trial court incorrectly granted
summary judgment in favor of Farm Bureau.
Question: What is summary judgment?
Answer: A court may enter summary judgment in favor of one party when the parties do not dispute
important facts and the law requires that, on those undisputed facts, only one party can win.

4
397 F.3d 897, 2005 U.S. App. LEXIS 2051 Tenth Circuit Court of Appeals. 2005.
Chapter 4 Common Law, Statutory Law, and Administrative Law 5

Question: Why did Farm Bureau distinguish between misfeasance—acting wrongfully—and

nonfeasance—failing to act?
Answer: Farm Bureau characterized its failure to notify the Pehles as nonfeasance and said it was
analogous to the situation in the bystander cases, in which Farm Bureau as a bystander to the Pehles
had no duty to help them.
Question: Did the court agree?
Answer: No—the court said the distinction was not useful under Wyoming law.
Question: It appears that the Pehles never asked Farm Bureau why it rejected their application. If they
had shown the slightest curiosity about the reason isn’t it likely that they would have learned then of
their HIV-status?
Answer: Perhaps. The court cannot speculate on what might have happened. At trial, the court would
consider whether Farm Bureau’s denial of coverage would have caused a reasonable person to question
the reasons for the denial.
Question: Doesn’t this case create a troubling precedent for life insurance companies? How can they
know which medical conditions uncovered during blood work will impose on the company a duty to
notify the applicant?
Answer: The court’s ruling is narrow—it applies only to discovery that an insurance applicant is HIV-
positive.
Question: But couldn’t a future plaintiff use this case as precedent if an insurance company failed to
notify the plaintiff that it discovered some other serious disease during a blood test?
Answer: A future plaintiff in such a case would undoubtedly rely on this case as precedent but the
principle of stare decisis would not require a court to follow it unless the future case involved HIV-
status. A future court could chose to distinguish the facts of such later case from this one.

Statutory Law
Statutory law consists of statutes passed by legislative bodies. More law is created by statute than by the
courts.

Bills
A bill is a proposed statute. To become law, a bill must be voted on and approved by both houses of
Congress (the House of Representatives and the Senate). Once Congress passes a bill, the bill will be sent
to the President. If the President signs the bill, it becomes law and is then a statute. If the President opposes
the bill, he will veto it, in which case it is not law. Congress can pass the over the President’s veto with a
two-thirds majority in each house

Statutory Interpretation
Courts interpret a statute by using the plain meaning rule; then, if necessary, legislative history and intent;
and finally, if necessary, public policy.

Landmark Case: Griggs v. Duke Power Co.5

Facts: Duke Power used a high school completion requirement and an intelligence test in hiring and
promotion. The result was that fewer minority applicants qualified for jobs at Duke Power. Griggs sued
under Title VII.
Issue: Did Title VII of the 1964 Civil Rights Act require that employment tests be job-related?

5
401 U.S. 424, 91 S. Ct. 849, 1971 U.S. LEXIS 134 United States Supreme Court, 1971.
6 Unit 1 The Legal Environment

Decision: Yes, employment tests must be job-related.

Reasoning: Congress's goal in enacting Title VII is plain from its language: to achieve equality of
opportunity and remove barriers that have favored whites. An employer may not use any practice,
procedure, or test that perpetuates discrimination. This is true not only for overtly discriminatory behavior
but also for conduct that appears fair yet has a discriminatory effect. The key is business necessity. An
employment test or restriction that excludes blacks is prohibited unless it is required to do the particular
job. In this case, neither the high school completion requirement nor the general intelligence test is related
to job performance, and therefore neither is permissible.
Question: What is the important issue that the Griggs case resolved?
Answer: Whether an employment practice that was neutral on its face could still violate Title VII.
Question: May such a practice violate Title VII?
Answer: Yes.
Question: Why did the court rule as it did?
Answer: The court said that Congress enacted Title VII to achieve equality of employment opportunity
and remove barriers that had operated in the past to favor whites. If an employment practice, neutral on
its face, continued to favor whites, it violated the purpose of the law.

Administrative Law
Administrative Law consists of regulations, orders, rules, and decisions promulgated by administrative
agencies in order to perform powers and duties delegated to such agencies.

Agencies exist at the federal, state, and local level. Some federal agencies are part of the executive branch,
while others are independent agencies. The President has much greater control of executive agencies than
of independent agencies.

Rulemaking
Agencies may promulgate legislative rules, which generally have the effect of statutes, or interpretive rules,
which merely interpret existing statutes.

Investigation
Agencies have broad investigatory powers and may use subpoenas and, in some cases, warrantless searches
to obtain information. A subpoena is an order to appear at a particular time and place to provide evidence.

Adjudication
Agencies adjudicate cases, meaning that they hold hearings and decide issues. Adjudication generally
begins with a hearing before an Administrative Law Judge and may involve an appeal to the full agency or
ultimately to federal court.

Ubiquitous Agencies
It is ironic that the effect on our lives of administrative regulations is so pervasive, yet the process by which
administrative agencies create their regulations is rarely before us. What was the last movie or television
drama in which the protagonist delivered an impassioned speech to a regulatory board? Law and Order:
FTC has not made it to the airwaves. One can argue, however, that we experience the work of administrative
agencies more often than other law-making bodies.
Chapter 4 Common Law, Statutory Law, and Administrative Law 7

Landmark Case: United States v. Biswell6

Facts: Biswell operated a pawnshop and had a license to sell "sporting weapons." Treasury agents
demanded to inspect Biswell's locked storeroom without a warrant, claiming that the Gun Control Act of
1968 gave them that right. Under this law, Treasury agents had permission to inspect firearm dealers’
business records, firearms and ammunition during business hours.
Biswell voluntarily opened the storeroom, and the agent found two sawed-off rifles inside. The guns
did not remotely meet the definition of "sporting weapons," and Biswell was convicted on firearms charges.
The appellate court found that, because the search violated the Fourth Amendment, the rifles could not
be admitted as evidence. It reversed the conviction, and the government appealed to the Supreme Court.
Issue: Did the agent’s warrantless search violate the Constitution?
Decision: No, the agent had a right to search the firearm dealer’s premises without a warrant.
Reasoning: The Gun Control Act of 1968 was a valid statute aimed at regulating firearms and preventing
violent crime. As part of this effort, it gave the Treasury agents the right to perform frequent and
unannounced inspections of firearm dealers’ premises. What good is a firearm inspection that is announced
ahead of time? A warrant requirement would certainly frustrate the statute’s purpose of controlling illegal
guns.

Warrants protect an individual’s expectation of privacy. Biswell had no justifiable expectation of privacy
in his storeroom, since he, like all firearms dealers, knew that his business records, firearms and ammunition
were subject to inspection. Biswell accepted these rules when he obtained his license. In addition, he
received annual reminders.

Since inspections furthered the Gun Control Act’s important purpose and Biswell could not reasonably
expect his storeroom to be private, the seizure of the sawed-off rifles was permissible. They should have
been admitted into evidence.
Question: Why should this case be evaluated under the Power of Agencies?
Answer: Both because it is a retail operation, governed by the Treasury, and because it is a firearms
store, which must comply with the Gun Control Act of 1968.
Question: Should a Treasury agent be allowed to conduct a surprise search? Why or why not?
Answer: Yes, to ensure that business owners like Biswell comply with the law. Advance notification
of a search would give a business owner to hide any evidence of wrongdoing.
Question: Did the agent’s warrantless search violate the Constitution?
Answer: The court said that the search was reasonable and that Biswell had been informed that this
type of search was possible; thus, it did not violate the Constitution.

Additional Case: Doe v. Maryland Board of Social Works7

Facts: “Mrs. F” was a licensed social worker in Maryland. One of her clients, “John Doe,” was convicted
of child abuse and sex offenses involving his minor granddaughter. The Board of Social Work Examiners,
an administrative agency, learned that Mrs. F. had likely violated the law by failing to report the abuse. The
agency began an investigation and issued a subpoena duces tecum to Mrs. F., demanding all treatment
records for John Doe and his wife Jane Doe, for the year in which the abuse occurred.
The Does (“Petitioners”) sued, asking the court to quash the subpoena. They claimed that a social worker-
client privilege prohibited disclosure of their records. The intermediate Court of Appeals declared the
subpoena valid. The Does appealed to the state’s highest court.

6
406 U.S. 311, SUPREME COURT OF THE UNITED STATES (1972).
7
384 Md.161, 862 A.2d 996 Maryland Court of Appeals, 2004.
8 Unit 1 The Legal Environment

Issue: Was the subpoena valid?

Holding: Validity of subpoena affirmed. It wrote:
A state statute affords social workers and their clients similar protections that have long been applicable
to other relationships where privacy issues and the need for open communication are of paramount
importance, e.g., marital privilege, attorney—client privilege, psychiatrist/psychologist—patient
privilege, clergyman—communicant privilege, etc. We consider the information contained in those
treatment records to be both confidential and privileged. Therefore, we must examine the Board's claim
that its subpoena power and obligation to oversee the conduct of the licensed social workers of this
State provides an exception to petitioners' privilege and confidentiality rights as provided by law.
The Board’s interests in obtaining Ms. F’s treatment records are clearly compelling. The legislature
established the Board to protect the public by setting and maintaining high professional standards for
social work. As the Court of Special Appeals stated: "To deny the Board access to patient files is to
deny it the ability to carry out its legislative mandate.”
Neither the social worker—client privilege nor any claim concerning petitioners' constitutional right to
privacy automatically prevents the Board from subpoenaing petitioners' treatment records. While the
Board is required by law to protect the petitioners' treatment records from further disclosure, the Board
must be allowed to have access to those treatment records in order to fulfill its statutory mandate to
protect the public by conducting a full investigation and, where appropriate, disciplining those licensed
social workers who are found to be in violation of the [law].
Question: Did the Does move to quash the subpoena only because they sought to block the
investigation?
Answer: They had a valid basis for their claim. The court acknowledged that the Does’
communications with Mrs. F were confidential and privileged, and thus merited legal protection.
Question: If those communications were confidential, than why may the Board of Social Work
abrogate the Does’ privilege?
Answer: The Board must balance competing interests. It must balance the policies served by the Does’
privilege with its statutory mandate to protect the public. The Does’ cannot automatically block access
to their records just by asserting that they are privileged. In reviewing the validity of the subpoena, the
court must engage in similar balancing analysis.
Question: What facts support abrogating the privilege in this case?
Answer: Mrs. F, the Does’ social worker, may have violated her legal duty to report Mr. Doe’s abuse
of his minor granddaughter. One responsibility of the Board of Social Work is to investigate whether a
social worker has performed her duties consistently with professional standards and legal requirements.
The Board could not satisfy its responsibility without obtaining and examining Mrs. F’s records of her
treatment sessions with the Does.
General Question: If in reviewing the records, the Board discovered evidence that the Does had
committed other crimes, could the Board act on its knowledge?
Answer: Agency subpoenas occasionally unearth evidence that may form the basis for a referral to the
Department of Justice for criminal prosecution.

Additional Case: Leonard R. Friedman v. Board of Registration in Medicine8

Facts: The patient first saw Friedman, a board-certified forensic psychiatrist, at his office in 1980. She
continued to visit him at least monthly until the summer of 1982. During a board hearing, the board found
that during one or more of three office visits some form of sexual activity took place between Friedman
and the patient. The board's decision recounts patient’s testimony regarding what happened on these
occasions, but it does not make explicit findings about what occurred.

8 408 Mass. 474, Supreme Judicial Court of Massachusetts, Suffolk.

Chapter 4 Common Law, Statutory Law, and Administrative Law 9

The board should not have simply recited the patient's testimony. It should have made findings of fact based
on, or in rejection of, her testimony. It is clear, however, that the board disbelieved Friedman's denials and
rejected his claim that the patient was out to get even with him. The board found that Friedman had exploited
the patient sexually. Psychiatrist appealed.
Among the substantial evidence was testimony concerning a telephone conversation between the patient
and Friedman. Patient’s son listened to the conversation on an extension line. In that conversation, the
patient accused Friedman of sexual exploitation. Friedman did not deny the accusation.
Neither during the telephone conversation nor at the hearing did Friedman admit to the truthfulness of the
patient's statements. He testified that it would have been inappropriate in the circumstances if he had called
her a liar during the telephone conversation.
Issue: Did the hearing officer err when he found that Dr. Friedman had sexually exploited his patient even
the hearing officer failed to make findings about what had occurred?
Holding: The Board finds that there was no error. The Board of Registration in Medicine revoked the
registration of a forensic psychiatrist to practice medicine on the ground that the psychiatrist, who
participated in sexual conduct with a patient during one or more office visits, had engaged in gross
misconduct in the practice of medicine.
Question: What does it mean for the Board to make findings about the testimony?
Answer: A finding is a decision or verdict based on facts or evidence presented during a trial. Findings
of fact are used in formulating a judgment.
Question: Why is that an issue here?
Answer: Mere recitation of facts cannot justify a judgment. A judge must decide the case based on a
logical consistency to justify the conclusion. Without that, it is possible to strip the doctor of his license
without justifying why. The Board corrected that error, but affirmed the decision.

Limits on Agency Power

The four most important limitations on the power of federal agencies are statutory control in the enabling
legislation and the Administrative Procedure Act; political control by Congress and the President; judicial
review; and the informational control created by the Freedom of Information Act and the Privacy Act.

Students should understand that control can often be affected by means other than lawsuits and legislation.
Students should pay particular attention to the amount of deference courts employ in reviewing
administrative decisions, which is discussed in the text.

Case: Fox Television Stations, Inc. v. Federal Communications Commission9

Facts: “People have been telling me I’m on the way out every year, right? So f*** ’em,” said Cher, on a
televised Billboard Music Awards ceremony. A year later, on the same program, Nicole Richie asked,
“Have you ever tried to get cow s*** out of a Prada purse? It’s not so f****** simple.”
U.S. law bans the broadcast of “any obscene, indecent, or profane language.” The Federal Communications
Commission (FCC), which regulates the broadcast industry, had issued guidelines indicating that the
utterance of an isolated vulgarity was acceptable so long as it was not repeated at length. After Nicole
Richie explained the difficulties of cleaning a Prada purse, the FCC declared a more stringent indecency
policy. This stricter standard made a single fleeting expletive punishable if the word was "patently
offensive". But the FCC failed to give a clear definition of the term, and it enforced the new rule unevenly.
For example, it allowed bad language during news interviews and films, but condemned the same words in
other contexts.

9
613 F.3d 317, 2d Circuit Court of Appeals, 2010.
10 Unit 1 The Legal Environment

When the FCC found that Fox had violated the agency’s standards by broadcasting Cher and Nicole
Richie’s three words, Fox argued that the new policy was too vague and arbitrary. The Appeals Court
agreed with Fox. The Supreme Court granted certiorari.
Issue: Was the FCC’s indecency policy unacceptably vague and arbitrary?
Decision: Yes, the FCC had failed to give broadcasters fair notice of what kind of conduct could be
punished. And it did not apply the rules equally to everyone.
Reasoning: The FCC has the right to set and change its policies. However, laws must provide a person of
ordinary intelligence with reasonable notice of what behavior is prohibited. How could Fox have known
that a fleeting F-word on live TV was forbidden when at other times such words were not? It could not and
it did not.
Clear rules also ensure that government agencies do not act in an arbitrary or discriminatory fashion. To be
fair, they must treat the same behavior in the same way. Never before had the FCC penalized this conduct.
In fact, even after its stricter indecency standard was set, the FCC allowed the utterance of the F-word in
other contexts. The FCC cannot penalize Fox if it then ignores the same behavior in others.
Question: Does the court’s ruling mean that it agrees with the networks and fleeting use of expletives
in broadcasts is legitimate?
Answer: No. The court does not consider that issue on its merits. Instead, the court asks whether the
FCC decision to change its policy was well-reasoned.
Question: Why did the court decide that the FCC decision was not well-reasoned?
Answer: The court decided that the FCC’s decision was not well-reasoned because many of the
justifications for the change in policy offered by the FCC are contrary to the agency’s practice. For
example, the “first blow” theory offered by the FCC does not actually reflect what they practice because
the agency actually does allow some use of profanity such as during a “bona fide news interview.”
According to the FCC, even deliberate use of profanity would be allowed if such use were “integral”
to the work.
Question: Doesn’t it seem to be a good public policy to prohibit expletives on network broadcasts
when children could be watching or listening? Why doesn’t the court exercise its power to ban such
language?
Answer: Even if the court agreed with the FCC, it must make sure the FCC operates within its authority
and follows the proper process for making regulations and establishing policy.

Freedom of Information Act (FOIA)

Congress passed the landmark Freedom of Information Act (known as “FOIA”) in 1966. It is designed to
give all of us, citizens, businesses, and organizations alike, access to the information that federal agencies
are using. The idea is to avoid government by secrecy.

Additional Case: Perlman v United States Department of Justice10

Facts: Perlman filed a request under FOIA with the Department of Justice ("DOJ") seeking the release of
a 143-page Report of Investigation ("ROI") by DOJ's Office of the Inspector General. The ROI discussed
allegations of impropriety on the part of Immigration and Naturalization Service (“INS”) officials in
running the EB-5 Investor Visa Program ("EB-5"), created in 1990 to offer special American visas to
wealthy foreigners who invested between $500,000 and $1 million in business ventures employing at least
ten American workers. The INS approved for inclusion in the EB-5 program the use of limited partnerships
to which foreign investors contributed cash in an amount less than $500,000 and pledged promissory notes
to meet the minimum investment required by the EB-5 program. Participating investors could thus obtain
a green card without having to put up the remaining money.

10
312 F.3d 100; 2002 U.S. App. LEXIS 24070 U.S. Court of Appeals for the Second Circuit 2002.
Chapter 4 Common Law, Statutory Law, and Administrative Law 11

Allegations surfaced that former INS officials who were involved with these partnerships received improper
preferential treatment from current INS employees. The DOJ's Inspector General investigated the
allegations, particularly the role of Paul Virtue, former INS deputy general counsel and produced the ROI.
The ROI consists of (1) a synopsis, (2) a subject of investigation form, containing basic information on
Virtue, (3) a list of the 40 memoranda of investigation ("MOIs"), and (4) the MOIs.
The DOJ's Office of Inspector General denied Perlman's FOIA request, relying on two FOIA exemptions:
Exemption 6, concerning personnel and similar files, and Exemption 7(C), concerning reports compiled for
law enforcement purposes. Perlman administratively appealed the denial. In response to Perlman's
administrative appeal DOJ's Office of Information and Privacy ordered the disclosure of 49 report pages,
most redacted in some respect, but otherwise upheld the prior denial. Perlman filed a lawsuit challenging
the agency’s failure to release the entire ROI. After the DOJ moved for summary judgment the trial court
conducted in camera review of the entire ROI and granted DOJ's motion in part and denied it in part. It
found the ROI was compiled for law enforcement purposes because it investigated possible violations of
law by Virtue and was covered by Exemption 7(C). It also determined that the ROI was a "similar file"
because it contained private information similar to that contained in personnel files, bringing it within
Exemption 6. The District Court further found Virtue's privacy interests in withholding the ROI outweighed
the public's interest in disclosure.
Issue: Did Exemptions 7(C) and 6 exempt the ROI from disclosure under FOIA?
Holding: The court agreed with the trial court that Exemption 7(C) applied to the ROI prepared by the
DOJ’s Inspector General. Perlman argued that Exemption 7(C) did not apply because the ROI concerned
an investigation of the EB-5 program as a whole, not Virtue personally. Review of a claim under Exemption
7(C) involves two steps: "a document must first be shown to have been compiled for a law enforcement
purpose, and if so, the agency must also demonstrate that release of the material would result in one of the...
harms specified in the [FOIA]." An Inspector General of a federal agency engages in law enforcement
activities for purposes of FOIA. The court’s in camera review of the ROI led it to conclude that it was
prepared for law enforcement purposes and thus within the scope of Exemption 7(C).
The court also disagreed with Perlman’s argument that Exemption 6 did not apply because “the ROI was
similar to a personnel file because (1) the ROI did not involve a disciplinary proceeding; and (2) the ROI
responded to specific allegations, not routine record keeping requirements.” Exemption 6 allows an agency
to withhold "personnel and medical files and similar files." The term “similar files” is to be construed
broadly. The ROI contains personal information about Virtue and his alleged misconduct and qualifies as
a similar file under Exemption 6.
These conclusions did not end the court’s analysis. Perlman argued that the public’s interest in disclosure
of the investigation into the EB-5 program outweighed the privacy interests of those mentioned in the ROI.
The court disagreed with Perlman as to the privacy interests of witnesses and third parties, but concluded
“that the public's interest in disclosure of the ROI, with limited exceptions, substantially outweighs Virtue's
privacy interests.” With respect to Virtue the court considered
“(1) the government employee's rank; (2) the degree of wrongdoing and strength of evidence against
the employee; (3) whether there are other ways to obtain the information; (4) whether the information
sought sheds light on a government activity; and (5) whether the information sought is related to job
function or is of a personal nature. The factors are not all inclusive and no one factor is dispositive.”
Virtue’s status as former INS deputy general counsel, role as administrator of the EB-5 program and
overseer of the investor limited partnerships, and the investigation’s focus on the manner in which
government employees discharged their duties, all weighed in favor of disclosure. The court remanded the
matter for further proceedings consistent with its opinion.
Question: The Court of Appeals concluded that the ROI fell within Exemptions 7(C) and 6. Why didn’t
that end the court’s analysis?
Answer: The FOIA also required a court to balance the privacy interests of those mentioned in the ROI
and the public’s interest in disclosure.
Question: The court concluded that disclosure was warranted with respect to Virtue. How can that be
accomplished while protecting the privacy interests of witnesses and third parties?
12 Unit 1 The Legal Environment

Answer: The INS can redact the report before releasing it, i.e. remove from the body of the report those
sections that should remain private.

Privacy Act
This 1974 statute prohibits federal agencies from giving information about an individual to other agencies
or organizations without written.

Multiple Choice Questions

1. A bill is vetoed by ________________.
(a) The Speaker of the House
(b) A majority of the voting members of the Senate
(c) The President
(d) The Supreme Court
Answer: C.

2. If a bill is vetoed, it may still become law if it is approved by __________________.

(a) 2/3 of the Supreme Court
(b) 2/3 of registered voters
(c) 2/3 of the Congress
(d) The President
(e) An independent government agency
Answer: C.

3. Which of the following Presidents was most influential in the passing of the Civil Rights Act?
(a) Franklin D. Roosevelt
(b) Ronald Reagan
(c) Abraham Lincoln
(d) John F. Kennedy
(e) George W. Bush
Answer: D.

4. Under the Freedom of Information Act, any citizen may demand information about
(a) How an agency operates
(b) How an agency spends its money
(c) Files an agency has collected on the citizen herself
(d) All of the above
Answer: D.
Chapter 4 Common Law, Statutory Law, and Administrative Law 13

5. If information requested under the Freedom of Information Act is not exempt, an agency has _________
to comply with the request.
(a) 10 days
(b) 30 days
(c) 3 months
(d) 6 months
Answer: A.

Essay Questions
1. Until recently, every state had a statute outlawing the burning of American flags. But in Texas v. Johnson,
the Supreme Court declared such statutes unconstitutional, saying that flag burning is symbolic speech,
protected by the First Amendment. Does Congress have the power to overrule the Court’s decision?
Answer: No. When the Supreme Court declares that the Constitution protects an activity, such as flag
burning, that is the final word. This is different from the Griggs-Wards Cove dispute. There, the Court
was simply interpreting a statute, the 1964 Civil Rights Act. Whenever Congress believes that the Court
has misinterpreted a statute, it is free to pass a law correcting the interpretation. But Congress has no
power to overrule the Court on a matter of constitutional rights.

2. In 1988, terrorists bombed Pan Am Flight 103 over Lockerbie, Scotland, killing all passengers on board.
Congress sought to remedy security shortcomings by passing the Aviation Security Improvement Act
of 1990, which, among other things, ordered the Federal Aviation Authority (FAA) to prescribe
minimum training requirements and staffing levels for airport security. The FAA promulgated rules
according to the informal rulemaking process. However, the FAA refused to disclose certain rules,
concerning training at specific airports. A public interest group called Public Citizen, Inc., along with
family members of those who had died at Lockerbie, wanted to know the details of airport security.
What steps should they take to obtain the information? Are they entitled to obtain it?
Answer: The groups should, and did, file an “FOIA request”–i.e., a request for documents pursuant to
the Freedom of Information Act. Most agency information must be made available to the public. But
certain information may be exempt. The FOIA exempts matters pertaining to national security. In
addition, the Aviation Security Improvement Act of 1990 added additional documents that can be
exempt–namely, those pertaining to airport security.

3. The Aviation Security Improvement Act (ASIA) states that the FAA can refuse to divulge information
about airport security. The FAA interprets this to mean that it can withhold data in spite of the FOIA.
Public Citizen and the Lockerbie family members interpret FOIA as being the controlling statute,
requiring disclosure. Is the FAA interpretation binding?
Answer: No. Pursuant to the Chevron case, a court will look to see if there is clear congressional intent.
If there is, it must be followed. If there is not, then the agency's interpretation will be followed if it is
“permissible,” meaning reasonable. In Public Citizen, Inc. v. FAA, 988 F.2d 186, 1993 U.S. App.
LEXIS 6024 (D.C. Cir. 1993), the court found that there was a clear congressional intent: to permit the
ASIA to exempt additional information from public disclosure for purposes of airport security. The
agency's view became irrelevant, but plaintiffs lost anyway.

4. An off-duty, out-of-uniform police officer and his son purchased some food from a 7-Eleven store and
were still in the parking lot when a carload of teenagers became rowdy. The officer went to speak to
14 Unit 1 The Legal Environment

them and the teenagers assaulted him. The officer shouted to his son to get the 7-Eleven clerk to call
for help. The son entered the store, told the clerk that a police officer needed help, and instructed the
clerk to call the police. He returned 30 seconds later and repeated the request, urging the clerk to say it
was a Code 13. The son claimed that the clerk laughed at him and refused to do it. The policeman sued
the store. Argument for the Store: We sympathize with the policeman and his family, but the store
has no liability. A bystander is not obligated to come to the aid of anyone in distress unless the bystander
created the peril, and obviously, the store did not do so. The policeman should sue those who attacked
him. Argument for the Police Officer: We agree that in general a bystander has no obligation to come
to the aid of one in distress. However, when a business that is open to the public receives an urgent
request to call the police, the business should either make the call or permit someone else to do it.
Answer: The Maryland high court established another exception to the bystander rule. “It is
evident...that a shopkeeper has a legal duty to come to the assistance of an endangered business visitor
if there is no risk of harm to the proprietor or its employees.” The police officer was a business invitee
because he had bought food, and the clerk was obligated to take reasonable affirmative steps to protect
him. Southland Corp. v. Griffith, 332 Md. 704, 633 A.2d 84 (1993).

5. Federal antitrust statutes are complex, but the basic goal is straightforward: to prevent a major industry
from being so dominated by a small group of corporations that they destroy competition and injure
consumers. Does Major League Baseball violate the antitrust laws? Many observers say that it does. A
small group of owners not only dominate the industry, but actually own it, controlling the entry of new
owners into the game. This issue went to the United States Supreme Court in 1922. Justice Holmes
ruled, perhaps surprisingly, that baseball is exempt from the antitrust laws, holding that baseball is not
“trade or commerce.” Suppose that members of Congress dislike this ruling and the current condition
of baseball. What can they do?
Answer: The congressmen could introduce a bill overruling the Supreme Court's interpretation of
federal antitrust statutes. The bill would specify that baseball is part of trade and commerce, and that
Congress intends that it be subject to the antitrust laws, the same as any other nationwide industry.

Discussion Questions
1. Courts generally follow precedent, but in the Tarasoff and Soldano (Chapter 1) cases discussed early in
this chapter, they did not. Consider the opening scenario at the Old Abandoned Mill. Should the hiker
bear any legal responsibility for Gary's untimely end? Or, should a court follow precedent and hold the
lazy hiker blameless?
Answer: Answers will vary.

2. Revisit the Fox Television Stations case. Do you agree with the opinion? What would a sensible broadcast
obscenity policy contain? When, if ever, should a network face fines for airing bad language?
Answer: Answers will vary.

3. Revisit United States v. Biswell. Do you agree with the Court’s decision? Is it reasonable that government
agencies can conduct searches more freely if a business is in an industry that is comprehensively
regulated? Should a pawnshop face more searches than other kinds of enterprises, or should the rules
be the same for all companies?
Answer: Answers will vary.
Chapter 4 Common Law, Statutory Law, and Administrative Law 15

4. FOIA applies to government agencies, but it exempts Congress. Should top lawmakers be obligated to
comply with FOIA requests, or would that create more problems than it would solve?
Answer: Answers will vary.

5. Suppose you were on a state Supreme Court and faced with a restaurant-choking case. Should you require
restaurant employees to know and employ the Heimlich maneuver to assist a choking victim? If they
do a bad job, they could cause additional injury. Should you permit them to do nothing at all? Is there
a compromise position? What social policies are most important?
Answer: Answers will vary.
Another random document with
no related content on Scribd:
The Project Gutenberg eBook of Lady
Rosamond's book
This ebook is for the use of anyone anywhere in the United States
and most other parts of the world at no cost and with almost no
restrictions whatsoever. You may copy it, give it away or re-use it
under the terms of the Project Gutenberg License included with this
ebook or online at www.gutenberg.org. If you are not located in the
United States, you will have to check the laws of the country where
you are located before using this eBook.

Title: Lady Rosamond's book

or, Dawnings of light

Author: Lucy Ellen Guernsey

Release date: December 15, 2023 [eBook #72426]

Language: English

Original publication: London: John F. Shaw and Co, 1903

*** START OF THE PROJECT GUTENBERG EBOOK LADY

ROSAMOND'S BOOK ***
Transcriber's note: Unusual and inconsistent spelling is as
printed.

She climbed over the wall by the beehives.

The gardener had left his ladder close by.
 The Stanton-Corbet Chronicles.

[Year 1529]

Lady Rosamond's Book;

OR,

DAWNINGS OF LIGHT.

BY

LUCY ELLEN GUERNSEY

AUTHOR OF
"LADY BETTY'S GOVERNESS;" "WINIFRED."

NEW EDITION.
 LONDON:

JOHN F. SHAW & CO.

48 Paternoster Row, E.C.

CONTENTS.

CHAPTER

I. St. Swithin's Day, in the year of Grace, 1529.

II.

III. Feast of St. Agnes, April 20.

IV. Feast of St. Catherine, April 29.

V. Eve of St. John, May 5th.

VI. May 15th.

VII. St. John Baptist's Day, June 24.

VIII.

IX. July 14.

X. St. Mary Magdalene, July 21.

XI. August 1.

XII. August 2.

XIII. August 12, Feast of St. Clare.

XIV. August 14.

XV. August 25.

XVI. St. Michael's Eve, Sept. 28.

XVII. October 28.

XVIII. All Saints' Day, Nov. 2.

XIX. Nov. 4.

XX. Nov. 8th.

XXI. Corby End, April 20, 1530.

XXII. April 23.

XXIII.

XXIV. April 25, Sunday.

XXV. April 30.

XXVI. May 12.

XXVII. June 1.

XXVIII.

XXIX. June 20.

XXX. June 30.

XXXI. June 30.

XXXII. July 20, Tremador, in Cornwall.

XXXIII. July 30.

XXXIV. Aug. 3.

XXXV. Aug. 5.

XXXVI. Aug. 18.

XXXVII. Aug. 20.

XXXVIII. Aug. 30—the day after.

XXXIX. Coombe Ashton, Sept. 10.

XL. Sept. 12.

XLI. St. Ethelburga's Shrine, Sept. 30.

XLII. Tremador, All Saints' Day, Nov. 1.

XLIII. Stanton Court, May 12, 1590.

THE PREAMBLE.
 Stanton Court, August 21.

I FOUND the original of this book (1710) in my father's

library. Remembering well, when I was a child, how my dear
and honored mother used to value it, and how she used
sometimes to read to us young ones little bits therefrom, I
was led to peruse it myself; and since that time I have
amused my leisure hours by making a fair copy of the
chronicle (for such it really is) as a present to my dear child
and charge, the Lady Lucy Stanton.

Amy Rosamond Stanton, spoken of at the end of the book,

was my grandmother, my father's mother. She was in many
respects a peculiar person, very beautiful and
accomplished, but uncommonly retiring and serious in her
tastes, given to study and solitary meditation, specially
after the death of her husband. My mother ever loved her
as an own mother, and we have still her portrait. It
represents a beautiful woman indeed, but so absolutely fair
and colorless as to seem almost unreal.

There is a tradition in the family that this wonderful fairness

is derived from a certain personage called "The Fair Dame
of Stanton," whom one of the Lords of Stanton married in
foreign parts. The story goes that this fair dame was one of
those strange creatures, neither quite spiritual nor yet
wholly human, a kind of Melusina or Tiphane Le Fee, and
that she vanished at last in some strange fashion, leaving
two children. The common people, and some who should be
above such notions, believe that the Fair Dame doth
sometimes return in the person of one of her descendants,
and that such a return always bodes woe to the family. But
this is all nonsense. So much is true that the lady came
from foreign parts, and that she was possessed of this
curious fair beauty, which now and then reappears in the
person of some descendant of hers, as in the case of my
grandame. She had some peculiarities of religious belief,
probably inherited from her Albigensian ancestors, and 'tis
certain that she possessed a copy of Holy Scripture as done
into English by Wickliffe. This book was found concealed in
the apartment known as the Fair Dame's bower, and is still
preserved in our library.

My mother also wrote a chronicle of her young days, which

is one of my most precious possessions. I would fain have
my Lucy do the same, but she is a true Stanton, and cares
little for books, being a born housewife. Her father has
married a second time, and has a son, so that Lucy is no
longer the sole hope of the race. She gets on well with her
stepmother, who is an amiable young lady, not so many
years her senior as I could wish, but still she loves best to
pass her time here with me, in this home of my youth,
which my Lord has most kindly fitted up and given me for
my life. I have a widowed daughter, who lives with me, and
plenty of grandchildren to visit me, so that I am never
lonely. But I meant not to write the history of my own life,
but only to give an account of this book.

DEBORAH CORBET.
 LADY ROSAMOND'S BOOK.

Edmund Andrews, for sea fisshe . . . . . . . £0. ivs. xd.

John Earle, for spice. . . . . . . . . . . . ixs. ixd.

Thomas Smith, dried ling . . . . . . . . . . vs. iiiid.

Mistress Ashe, a webbe of white hollands . . xivs.

John Earle, spices, dates and almond . . . . £0. is. xd.

Mistress Ashe, needles, silk and thread. . . viiis.

Mistress Ashe, a webbe of fine diaper. . . . xls. ixd.

CHAPTER I.

I SUPPOSE I had better begin by telling how I came by this

book, though that is not the beginning either, but perhaps it
will do as well as any other to start from. Dear Mother says
I am to write a chronicle of my life, as it seems some ladies
of our family have done before me. So here I begin by first
putting the date:

St. Swithin's Day, in the year of Grace, 1529.

Dear Mother Superior was in the library this morning,

looking at the work I have been helping Sister Gertrude to
finish, of putting the books in order, and writing out a fair
list of them. Sister Gertrude cannot write on account of her
eyes, and she does not know Latin, and as I do, and can
write a fair hand, I was able to help her, which pleased us
both well.

[I do shrewdly suspect there was another hindrance more

vital than the dear Sister's eyes, but I would not have
hinted such a thing for the world. If she did not know
writing, she knew many another thing better worth
knowing.] *

Well, Mother Superior did commend our diligence, and gave

Sister Gertrude much praise, which she in turn transferred
to me, at which Sister Catherine, who must be on hand as
usual, exclaimed:

"What holy humility Sister Gertrude shows!"

"Nay, I thought not of humility, but only of justice, and

giving the child her due," answered Sister Gertrude.

"I fear 'twill be long before our dear young Rosamond

emulates your example," continued Sister Catherine, as if
Sister Gertrude had not spoken. "I fear her gifts are but a
snare to her in that respect. Dear Rosamond, remember
nothing was so dear to St. Frances as humility."
 * The sentences in brackets were writ on the margin of
Lady Rosamond's book, but in transcribing I have put
them in the body of the work. Most of them seem to have
been added at a later date.—D. C.

"Sister Catherine, is not your charge in the wardrobe at this

hour?" asked Mother Superior (methought somewhat dryly).
Sister Catherine retired without a word, but I can't say she
looked very humble. If she were not a devoted religious, I
should say she looked ready to bite.

"You have made a good piece of work between you, my

children," said Mother; "and now we are in order, we must
keep in order. 'Tis not often that a lady's house possesses
so many books as ours, and we have, I fear, hardly prized
them as we ought. When Rosamond comes to be abbess,
she will make our poor house a seminary of learning."

"What have you got there, child?"

"'Tis a great book of blank paper, dear Mother," said I,

showing this book to her. "It has been begun as an
accompt, as I think, and then as a receipt, but it is mostly
empty."

"And you would like to fill it?" said Mother, smiling: "Well,
well, you have been a good maid, and deserve a reward.
You shall have the book, and write a chronicle of your life
therein, as did your great grandame of hers. You are a true
Corbet, and 'Corbys will have quills,' is an old saying of your
house."

I was well pleased, for I do love to write; but what can I say
about my own life, only the little things which happen every
day, and much the same to every one. To be sure, in the
lives of saints, as well as in the history books, I do love best
to read about the common things, even such as what they
ate, and how they slept, and so on. It seems to bring them
nearer to one. Not that I shall ever be a saint, I am sure.
Sister Catherine was right there. I should be more likely to
make a good housewife. Sometimes I fear I have no
vocation at all, though I have, as it were, grown up with a
veil on my face. Richard Stanton used to say I should never
make a nun.

Now I am going to begin my life. My name is Rosamond

Corbet, and I was born in Devonshire. My father is a
worshipful knight, Stephen Corbet by name, and my mother
Alice Stanton, a niece of my Lord Stanton, at the great
house. The Corbets are the elder family, having lived at
Fresh Water long before the Stantons, who only came in
with the Conqueror. The name used to be writ Corby, and
the common folk call it so to this day. The corby, or hooded
crow, is the cognizance of our house, and this bird,
commonly of evil omen, is said to be lucky to our race. 'Tis
not a nice bird, and I could wish we had an eagle or a falcon
to our crests; but after all they are alike birds of prey. They
say we are not Saxon, but British in descent, and that is
how we come by our black hair and eyes. The Stantons,
who should, methinks, be dark, are all fair.

I was the youngest of my family. My mother was a great

friend of the Lady Margaret Vernon, our dear Mother
Superior. It was thought at one time she had herself a
strong vocation, but she met with Sir Stephen, and there
was an end of that. So to make amends, I suppose, she
promised her second girl to this house, or her first, if she
had but one. So I, being the second maid, the lot fell on
me, and I have spent at least half my time here since I was
five years old. I like it well enough too, though I confess I
am now and then glad to get back home and run about the
woods' and sands, and play with the babes in the cottages.
I do love children, specially young children. I think my
vocation will be to teaching, or else to the pantry and
pastry-room. Once I told Sister Gertrude so, and she said it
reminded her of her younger brother, who when asked what
he would do when he was grown up, answered that he
would be a bishop, or else a fisherman, like old Will Lee.

Once I stayed at home six years. It was then I learned to

write and to construe Latin, from my brother's tutor, Master
Ellenwood. I was always a great pet of his, and when he
offered to teach me Latin, my father made no objection,
saying that a little learning would do me no harm, and
might sometime stand me in good stead.

That was a happy time. We three young ones and Dick

Stanton studied together all the morning, and played
together all the afternoon, save for the two hours or so of
needlework, and the like, which my mother exacted from us
girls. I may say without vanity that brother Henry and I
were the best scholars. Alice was passable, but poor Dick
was always in disgrace. In all the manly exercises, such as
riding the great horse, shooting with both long and cross-
bow, sword play, and so on, however, Dick was far beyond
any of the other lads. So he was in managing a horse, a
dog, or a hawk, and 'twas wonderful how all dumb
creatures loved him. Now he is a squire in France, with my
Lord his uncle, and I am here. I don't suppose I shall ever
see him again in this world.

My mother was alive then. She was a most notable lady,

always very still and quiet, but attending well to the ways of
her household, and keeping all in their places, not by any
assumption of greatness, but by the dignity and kindness of
her own manners. She was a most kind mother, but not so
fond as some, at least to me. It used to trouble me
sometimes, till one day, by chance, I found out the reason,
by overhearing some words spoken between her and an old
gentlewoman, a kinswoman of hers, who stayed some time
with her.

"Methinks Rosamond is no favorite," said my old lady. "And

yet 'tis a good, docile little maid, more to my mind than
Alice, with all her beauty."

"You are right, kinswoman," replied my mother; "but he

who has the keeping of another's treasure, if he be wise,
does not suffer himself to be overmuch looking upon or
handling, the same. Rosamond is not mine. She is given to
the Church, and I dare not give my mother's heart its way
with her, lest my natural affections should rise up against
my Lord's demands."

[I remember my own heart rather rose against this

doctrine, even then. It seemed to me that our Lord cared
for His own mother even on the cross. I knew that much,
though I had never seen the Scriptures at that time, and I
could not see why He should have given people natural
affections only to be trampled on. Now I know that St. Paul
places them who are without natural affection in no
flattering category.]

When I showed this that I have written to dear mother, she

said I must run my pen through what I wrote about Sister
Catherine.* She said we must concern ourselves with our
own faults and not with those of others. But somehow our
own faults and other people's will get mixed together.

* So she did, but not so that I could not read it, and I
judged best to write it out with the rest.—D. C.
 CHAPTER II.

TO go on with my own life. One year ago my dear mother

died, leaving us young ones to comfort my father, who
sorely needed comfort, for he and mother were all in all to
each other. Alice, who is three years older than I am, was
betrothed to Sir John Fulton's eldest son, and by mother's
special desire the wedding was hastened that she might
have the pleasure of seeing, as she said, both her
daughters settled in life. I think she would have liked me to
make my profession also, though she would have grieved to
part with me, but both my father and our good parish priest
were against it, and even Mother Superior did not favor the
notion. They all said I was far too young to know mine own
mind, and that I ought not to take the irrevocable vows till I
was eighteen at the least. So mother gave way.
Her death followed my sister's marriage so quickly, that the
flowers I had gathered for her that day were not fairly
withered when I plucked rosemary and rue to lay on her
winding sheet. She passed sitting in her chair, and so
quickly, that there was no time for the last sacraments: for
we had not thought her in any imminent danger, though we
all knew she must die soon. My father has spent much
money in masses, and talks of building a chantry, with
endowment for a priest to sing for her soul. The thought of
my dear mother in purgatory ought to make me a saint, if
nothing else did.

Father clung to me very closely, and could hardly bear me

out of his sight after mother died, and yet he himself
hurried my return to this place. It seemed hard that I could
not stay and comfort him, Alice being away; but when I
hinted at it, he reproved me, even sternly.

"Child, child! Would you make matters worse than they are
now, by taking back what your mother gave? What is my
comfort for a few days or years? Go—go, and pray for your
mother's soul!"

What could I say but that I would go? Besides, it really is no

great hardship. I love this house, and the Sisters, and they
are all very good to me; even Sister Catherine means to be,
I am sure, only she is so very strict. She says we are a
shame to our order—we are Bernardines—and that if St.
Francis were to come to earth again, he would not own us.
Sister Catherine says the very fact of Amice and myself
being in the house, as we are not novices, nor yet regular
postulants, shows how far we have degenerated, and that it
is enough to bring down a judgment on us. She talks about
going to London and joining a house of Poor Clares, notable
for the extreme strictness of their rule. I wish she would, I
am sure.
I don't think myself that we are very strict—not nearly so
much so as St. Clare was when she was on earth. Still we
observe the canonical hours carefully, at least the nuns do,
for Mother will not let us young ones be called up at night—
and we do a great deal for the poor. Some half dozen
families in the village here are clothed and fed by our
community almost entirely. That same Roger Smith has help
all the time, and yet he will not bring us so much as an eel
without having the full price for it.

There are twenty professed nuns in this house, besides the

Superior, Margaret Vernon, the Sacristine, Mother Agnes,
Mother Gertrude, who has the principal charge of the
novices and of us young ones, and Sister Catherine, whose
charge is the wardrobe and linen-room and whose business
is everyones but her own. Then there are three novices,
Anne, Clara, and Frances, and Amice and myself, who for
fault of a better name, are called pupils.

Amice Crocker is an orphan girl, niece to Mother Gertrude,

and has no home but this. She is very devout, and seems to
have a real vocation. She is always reading lives of the
Saints, and trying to imitate their example, but her
imitations do not always work very well. For instance, the
other day Mother Gertrude sent her to the wardrobe to
bring down some garments which were wanted in a hurry
for a poor woman. She was gone fully half an hour, and at
the last I was sent to look for her. I found her coming down
very slowly; indeed she was pausing a minute or more on
every stair.

"Amice, what makes you so slow?" I exclaimed, rather

vexed. "Don't you know Mother is waiting?"

She did not answer me, but continued coming down a step
and stopping, till Mother Gertrude herself came to see what