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AN INTRODUCTION

TO THE AMERICAN

LEGAL SYSTEM
 AN INTRODUCTION

TO THE AMERICAN

LEGAL SYSTEM
Fifth Edition

John M. Scheb II
Professor of Political Science, University of
Tennessee, Knoxville

Hemant Sharma
Lecturer in Political Science, University of Tennessee,
Knoxville
Copyright © 2020 CCH Incorporated. All Rights Reserved.

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Library of Congress Cataloging-in-Publication Data

Names: Scheb, John M., II, 1955-author. | Sharma, Hemant, 1974-author.

Title: An introduction to the American legal system / John M. Scheb II, Professor
of Political Science, University of Tennessee, Knoxville; Hemant Sharma,
Lecturer in Political Science, University of Tennessee, Knoxville.
Description: Fifth edition. | New York: Wolters Kluwer, [2020] | Includes
bibliographical references and index. | Summary: “This is a comprehensive
introductory text on American legal systems for undergraduate and paralegal
students”—Provided by publisher.
Identifiers: LCCN 2019056762 (print) | LCCN 2019056763 (ebook) | ISBN
9781543813814 (paperback) | ISBN 9781543820836 (ebook)
Subjects: LCSH: Law—United States. | LCGFT: Textbooks.
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 About Wolters Kluwer Legal &
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We dedicate this edition to our many students: past, present, and
future.
BRIEF CONTENTS
PREFACE
ABOUT THE AUTHORS

PART I FOUNDATIONS OF THE LEGAL SYSTEM

Chapter 1 Development of American
Law
Chapter 2 Structures of American
Law

PART II PUBLIC LAW

Chapter 3 Constitutional Law
Chapter 4 Civil Liberties
Chapter 5 Civil Rights
Chapter 6 Criminal Law
Chapter 7 Administrative Law

PART III PRIVATE LAW

Chapter 8 Torts
 Chapter 9 Property Law
Chapter 10 Contracts and Business
Law
Chapter 11 Family Law

PART IV THE LEGAL PROCESS

Chapter 12 Civil Procedure and the
Rules of Evidence
Chapter 13 Criminal Procedure
Chapter 14 The Appellate Process

APPENDIX A THE CONSTITUTION OF THE UNITED STATES OF

AMERICA

APPENDIX B GLOSSARY OF LEGAL TERMS

INDEX
CONTENTS
PREFACE
ABOUT THE AUTHORS

PART I FOUNDATIONS OF THE LEGAL SYSTEM

Chapter 1 Development of American
Law
Introduction
The Functions of Law in
Society
The Development of Law
The Common Law Tradition
The American Constitution
Modern Statutes and
Codification
Administrative Regulation
The Decisional Law
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and
Discussion
 Key Terms
End Notes
Chapter 2 Structures of American Law
Introduction
Legislatures
Judicial Systems
The Role of the Chief
Executive
Regulatory and
Administrative Agencies
Law Enforcement Agencies
Prosecutorial Agencies
The Legal Profession
The Adversarial System of
Justice
Alternative Dispute
Resolution
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and
Discussion
Key Terms
End Notes

PART II PUBLIC LAW

Chapter 3 Constitutional Law
Introduction
Judicial Review
Legislative Power
Executive Power
Separation of Powers
Federalism
The Constitution and
Elections
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and
Discussion
Key Terms
End Notes
Chapter 4 Civil Liberties
Introduction
Rights Recognized in the
Constitution of 1787
The Bill of Rights
Freedom of Religion
Freedom of Expression
Freedom of Assembly
Freedom of Association
 The Right to Keep and Bear
Arms
Protection of Citizens’
Homes from the Quartering
of Soldiers
The Rights of the Accused
Property Rights
The Right to a Jury Trial in
a Civil Suit
Protection of Unenumerated
Rights
Due Process of Law
The Right of Privacy
Judicial Review in Civil
Liberties Cases
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and
Discussion
Key Terms
End Notes
Chapter 5 Civil Rights
Introduction
The Persistent Problem of
Racial Discrimination
The Rights of Women
 Sexual Orientation and
Gender Identity
Discrimination Against
Persons with Disabilities
Age Discrimination
The Rights of Immigrants
Religion and Civil Rights
Judicial Review in Civil
Rights Cases
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and
Discussion
Key Terms
End Notes
Chapter 6 Criminal Law
Introduction
The Origin and Sources of
the Criminal Law
Constitutional Limitations
on Criminal Law
Elements of Crimes
Parties to Crimes
Inchoate Offenses
Offenses against Persons
Property Crimes
 White-Collar Crime
Organized Crime
Vice Crimes
Offenses against Public
Order and Safety
Offenses against the
Administration of Justice
Environmental Crime
Military Offenses
Crimes Committed on
Native American Lands
Defenses to Criminal
Charges
Punishment of Offenders
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and
Discussion
Key Terms
End Notes
Chapter 7 Administrative Law
Introduction
Delegation of Legislative
Authority
Rulemaking
Agency Investigations
 Agency Enforcement
Powers
Agency Adjudication
Judicial Review of Agency
Actions
Public Access to Agency
Information
Government in the
Sunshine
The Law of Public
Employment
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and
Discussion
Key Terms
End Notes

PART III: PRIVATE LAW

Chapter 8 Torts
Introduction
Negligence
Intentional Torts
Strict Liability
Vicarious Liability
Special Tort Situations
 Immunities from Liability
Recent Developments in
Tort Law
Tort Reform
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and
Discussion
Key Terms
End Notes
Chapter 9 Property Law
Introduction
Personal Property
Intellectual Property
Real Estate
The Lessor-Lessee
Relationship
Regulation of the Use of
Real Property
Eminent Domain
Trusts
Wills and Intestate
Succession
Estate, Gift, and Inheritance
Taxes
Conclusion
 Summary of Key Concepts
For Further Reading
Questions for Thought and
Discussion
Key Terms
End Notes
Chapter 10 Contracts and Business
Law
Introduction
Contracts
The Uniform Commercial
Code (UCC)
Business Associations
Consumer Protection
Bankruptcy
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and
Discussion
Key Terms
End Notes
Chapter 11 Family Law
Introduction
Marriage
Divorce and Annulment
 Child Custody, Support, and
Paternity
Adoption
Termination of Parental
Rights
Guardianship
Reproductive Decisions
Surrogacy
Decisions Regarding Medical
Treatment
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and
Discussion
Key Terms
End Notes

PART IV: THE LEGAL PROCESS

Chapter 12 Civil Procedure and the
Rules of Evidence
Introduction
Civil Procedure
The Rules of Evidence
Conclusion
Summary of Key Concepts
For Further Reading
 Questions for Thought and
Discussion
Key Terms
End Notes
Chapter 13 Criminal Procedure
Introduction
Search and Seizure
Arrest and Investigatory
Detention
Interrogation and
Identification of Suspects
The Right to Counsel
The Pretrial Process
The Criminal Trial
Sentencing
Victims’ Rights in the
Criminal Process
Criminal Procedure in
Military Tribunals
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and
Discussion
Key Terms
End Notes
 Chapter 14 The Appellate Process
Introduction
The Nature of the Appeals
Process
The Mechanics of an Appeal
Appeals in Civil Cases
Appeals in Administrative
Cases
Criminal Appeals
Post-Conviction Relief in
Criminal Cases
Executive Clemency
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and
Discussion
Key Terms
End Notes

APPENDIX A THE CONSTITUTION OF THE UNITED STATES OF

AMERICA

APPENDIX B GLOSSARY OF LEGAL TERMS

INDEX
PREFACE
This book is designed as an introductory text on American law
and the legal system. It is meant for undergraduate students in
political science, sociology, criminal justice, and legal studies, as well
as students in paralegal programs. Our goal is to introduce students
to basic legal concepts, principles, and procedures. Of necessity, we
have painted with a broad brush, as American law and legal
procedures are extremely complex and highly dynamic, and vary
considerably across jurisdictions.

Organization
For this edition, we have reorganized the book significantly and
have added several chapters to provide deeper coverage of
important topics. The book now has four parts:

• Part I provides the foundations of American law and the American

legal system. It discusses the development of American law from
its common law origins (Chapter 1) as well as the institutions and
actors that comprise the legal system today (Chapter 2).
• Part II is devoted to public law and includes separate chapters on
constitutional law (Chapter 3), civil liberties (Chapter 4), civil rights
(Chapter 5), criminal law (Chapter 6), and administrative law
(Chapter 7). The decision to create two new chapters dealing with
civil rights and liberties reflects both strong student interest in
these topics as well as their tremendous importance in
contemporary American society.
• Part III examines those areas of the law that are often subsumed
under the heading of “private law,” given that they deal primarily
 with the rights and duties of private parties. Increasingly, these
areas of the law are affected by public policies, and our treatment
of these topics reflects that trend. Chapter 8 examines torts,
injuries that are redressed through civil suits for damages,
including class actions brought against large companies for
products liability and environmental damages. Chapter 9 discusses
private property rights, including intellectual property rights. The
chapter gives considerable attention to government takings of land
through eminent domain and government regulation of land use.
Chapter 10 is devoted to contracts and business law, including the
important topic of consumer protection. This chapter devotes
considerable attention to business associations such as
partnerships and corporations. Chapter 11 deals with family law
and addresses a number of today’s very important issues,
including the changing nature of marriage and family structures,
reproductive decisions, and refusal of medical treatment.
• Part IV provides an overview of legal procedure. Chapter 12
examines procedures in civil cases and includes a section on the
rules of evidence. Chapter 13 looks at procedures in criminal
cases, from search and seizure through trial and sentencing. A
new chapter on appellate procedure (Chapter 14) describes
appeals in the civil, criminal, and administrative contexts.

Special Features
To the beginning student, an introduction to the law can be
somewhat overwhelming. To make the book more accessible and
useful to the student, every chapter contains a list of learning
objectives, a chapter outline, a chapter summary, and a set of
boldfaced key terms, all of which are defined in the glossary. To
make the book more provocative, each chapter also contains a set of
questions for thought and discussion. For the student who wishes to
learn more about the topics addressed in the book, each chapter
contains a list of additional reference materials.
Because judicial decisions are central to the development of the
law, we have incorporated two features into the text designed to
alert students to especially important cases. One of these features,
entitled “Case in Point,” is a short summary of a significant court
decision. There are multiple Case in Point features in each chapter. A
related feature, “Opinion of the Court,” appears in many of the
chapters and provides substantial excerpts from landmark opinions
of the U.S. Supreme Court.
Another special feature, entitled “The Law in Action,” focuses on
practical applications of the law and real-world controversies
involving legal issues. Topics addressed in this feature range from
“Civil Disobedience and the Struggle for Civil Rights” (Chapter 1) to
“Purchasing a House” (Chapter 9). Students also will find a set of
“Sidebar” features throughout the book. These features provide
miscellaneous information relevant to chapter topics. For example,
see the Sidebar in Chapter 8, “The Infamous McDonald’s Coffee
Case,” which is of interest to every student of tort law. Other Sidebar
features focus on such topics as sanctuary states and cities (Chapter
3), federal laws regulating firearms (Chapter 4), and the Supreme
Court’s abortion decisions (Chapter 11). We hope that these features
will make the text more informative and more interesting.

Acknowledgments
Previous editions of this book relied on the excellent assistance of
a number of able persons, whose efforts we gratefully acknowledge
once again:

• Richard R. Garland, Esq., an attorney in Sarasota, Florida, who is

certified in appellate practice.
• Robert P. Scheb, Esq., an attorney in Sarasota, Florida, who
practices in the field of estates and trusts.
• Rebecca A. Rider, Esq., an attorney in Sarasota, Florida, who
practices in the field of domestic relations.
• The late William T. Brown, who was an attorney and lecturer in
the Political Science Department and College of Law at the
University of Tennessee, Knoxville.
• Dr. Mark D. Welton, Professor in the Department of Law at the
United States Military Academy, West Point.

Finally, we extend our appreciation to the editorial staff at

Wolters Kluwer Law & Business for their encouragement and support
throughout this project.
Of course, we assume full responsibility for any errors of
commission or omission contained in these pages.
John M. Scheb II
Hemant Sharma
December 2019
ABOUT THE AUTHORS
John M. Scheb II is Professor of Political Science at the
University of Tennessee, Knoxville, where he specializes in public law
and the judicial process. He attended the University of Florida from
1974 to 1982, receiving the B.A., M.A., and Ph.D. in political science.
Professor Scheb has authored numerous articles in professional
journals, including Social Science Quarterly, Justice System Journal,
Political Behavior, American Politics Quarterly, Judicature, Journal of
Politics, Law and Policy, and Tennessee Law Review. He is the
coauthor of several other textbooks, including: American
Constitutional Law, 6th ed. (Cengage Learning 2015); Criminal Law
& Procedure, 8th edition (Cengage Learning 2014), and Law and the
Administrative Process (Thomson/Wadsworth 2005).

Hemant Sharma is a lecturer in the Department of Political

Science at the University of Tennessee, Knoxville, where he teaches
courses on law, courts, and judicial processes. Sharma received his
B.A. in English in 1997 from Cornell University, where he was a
member of the Dean’s List, winner of the prestigious James E. Rice
Writing Prize, and the goalkeeper for Cornell’s men’s soccer team,
which reached the NCAA Tournament in 1995 and 1996. He
subsequently earned an M.A. and a Ph.D. in Political Science from
the University of Tennessee, Knoxville. His published research has
appeared in Social Science Quarterly, Justice System Journal, Politics
and Policy, Judicature, the National Soccer Coaches Association of
America Journal, and the Tennessee Journal of Law and Policy. He
also has coauthored a textbook on American government published
by Great River Learning.
 PART I

FOUNDATIONS

OF THE LEGAL

SYSTEM

■ Chapter 1: Development of American Law

■ Chapter 2: Structures of American Law
LEARNING OBJECTIVES

This chapter should enable the student to understand:

■ the functions of law in society
■ the forms and sources of law
■ the influence of the English common law on the American legal
system
■ the ideas and experiences that led to the formation of the U.S.
Constitution
■ the supremacy of the U.S. Constitution and the Bill of Rights
■ the role of statutory law and judicial decision making
■ the functions of courts, legislatures, and administrative agencies
with respect to the development of the law

CHAPTER OUTLINE
Introduction
The Functions of Law in Society
The Development of Law
The Common Law Tradition
The American Constitution
Modern Statutes and Codification
Administrative Regulation
The Decisional Law
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms

INTRODUCTION
From our nation’s earliest moments through the present day, law has
held an important place in American society. Our Founders devoted
great care to crafting a system of government in which the rule of
law was a crucial feature. We have since developed an elaborate
system to make and enforce the law. A large professional class is
now engaged in the practice of law. Numerous academic institutions
are devoted to teaching the law. There are thousands of publications
dedicated to legal education, research, and advocacy. Our mass
media and popular culture reflect the social preoccupation with law,
in that we are exposed to a steady barrage of books, films,
newspaper articles, television shows, and web sites dealing with the
law.
Despite this cultural preoccupation with the law, an essential
question remains: What precisely is “law”? Numerous definitions
have been proposed, reflecting the variety of philosophical and
theoretical orientations to the concept. Bearing in mind that any
definition is imperfect, we begin with the following simple
formulation: law is a set of rules promulgated and enforced by
government.1 This formulation is often referred to as positive law,
which the nineteenth-century English legal theorist John Austin
defined simply as “the command of the sovereign.” Positive law is
indeed the command of the sovereign, in that it is enunciated by
government and backed by the coercive power of the state. But
there is more to law than this. To be law, the command of the
sovereign must take the form of a rule, a principle, or a directive
that applies with equal force to everyone.2 Moreover, to be accepted
as legitimate, the law must be perceived as rational, fair, and just.
Some would argue that for positive law to be legitimate, it must
conform to a higher law.

Higher Law
Natural law is law that is presumed to flow from man’s “natural”
condition, that is, the social condition existing prior to the
emergence of government. Natural law is sometimes used to refer to
universal principles of morality and justice; however, precisely what
those principles are is subject to conflicting interpretations. In De
Republica, the ancient Roman orator Cicero (106–43 B.C.) defined
natural law as “right reason in agreement with nature.” In Summa
Theologica, the medieval philosopher Thomas Aquinas (1225–1274)
viewed natural law as the “participation in the Eternal Law by
rational creatures.” In a less theological approach, the seventeenth-
century Dutch jurist Hugo Grotius defined natural law as rules of
human conduct that can be discovered solely by the use of reason.
Elsewhere, in his influential Commentaries on the Laws of England
(1769), William Blackstone asserted the primacy of natural law.
Blackstone’s Commentaries would become something of a legal bible
in America, and helped to perpetuate natural law theory in this
country.
To understand this concept, we can turn to a seminal document
associated with our nation’s founding. Our Declaration of
Independence (1776) asserts that “all men are created equal, that
they are endowed by their Creator with certain unalienable rights,
that among these are Life, Liberty, and the pursuit of Happiness.”
Those who created the basic framework of our legal system and
system of government believed that rights ultimately are not of
secular origin. Rather, they flow from natural law as ordained by
God. Even today, legal theorists, lawyers, lawmakers, and judges
sometimes invoke natural law. But natural law as such is not an
enforceable body of rules. It is more of a philosophical concept —
the idea that there is a set of principles of morality and justice that
transcends the positive law. In this regard, natural law provides a
basis for the criticism, and sometimes the disobedience, of the
positive law.
Natural law and religious precepts continue to be important
because they provide a basis upon which to evaluate and
contextualize the positive law. For example, quite often opponents of
the death penalty will cite the Biblical injunction “Thou shalt not kill.”
Similar arguments are often made regarding abortion and
euthanasia. Obviously, people can and will disagree on the
requirements of natural law, Scripture, and divine ordinance.
Because we have a secular government committed to the ideas of
separation of church and state and religious tolerance, religious
precepts are not enforceable through our legal institutions. But
religious precepts, like natural law, can provide citizens with a
philosophical anchor — a sense that there is a higher law by which
positive law can be judged.3

The Problem of Civil Disobedience

If we assume that there is no higher law than the law promulgated
by the state, how do we ever justify disobedience to the positive
law? By the same token, how do we punish those who have
perpetrated wrongs but have done so within the confines of the law?
This problem confronted the prosecutors at the Nuremberg war
crimes trials after World War II. What the Nazis did was atrocious,
yet much of it was authorized by German law at the time. A
somewhat similar problem accompanied the civil rights movement in
the United States during the 1950s and 1960s. Much of the
segregation and discrimination faced by African-Americans at that
time was authorized by law. What gave protesters the right to break
these laws, to engage in civil disobedience? Some would argue
that without a belief in some form of higher law, there is no way to
justify a breach of the positive law. Belief in a higher law or some
higher standard of justice permits us to evaluate the operations and
policies of our legal system, to object when a particular legal rule is
established or a particular legal decision is rendered, and to argue
for the need for legal change. In extreme circumstances, belief in a
higher law may provide a justification for violating the positive law,
as long as the violator is willing to accept the consequences of
disobedience.
The nineteenth-century American writer Henry David Thoreau is
best known for his advocacy of civil disobedience when the demands
of conscience conflict with the dictates of law. Thoreau argued that
the conscience of the individual is superior to the law of the state
and that individuals have the right, indeed the duty, to violate the
law when the law contravenes conscience.
Like all philosophical positions, Thoreau’s views on civil
disobedience are not universally accepted. There have been two
principal criticisms of his views. One is that citizens have an
obligation to obey laws that are adopted by legitimate democratic
procedures. Another objection is that an individual conscience
provides an insufficient basis for disobedience — that an individual
cannot be permitted to become a law unto himself or herself.
Despite these objections, Thoreau’s view of civil disobedience has
been extremely influential in the United States and throughout the
world.
A great deal of discussion continues, however, about exactly
what types of behavior fall under the heading of “civil disobedience.”
The case of Edward Snowden, who revealed information about the
scope of the National Security Agency’s surveillance programs,
provides an interesting example to consider. Snowden collected
thousands of classified documents while working as a National
Security Agency (NSA) contractor and then leaked that information
to members of the media. His actions provided individuals around
the world with an awareness of the breadth of NSA activities —
including surveillance that was described as targeting the cell phone
and Internet activities of millions of Americans, citizens of other
countries, and even some prominent international leaders. According
to Snowden, the information collected by the NSA included
“metadata,” which encompassed the phone numbers that a person
might have called from a cell phone, as well as “content analysis,”
which might involve the actual words uttered in a conversation.
The U.S. government ultimately brought criminal charges against
Snowden for alleged violations of the Espionage Act, but he had fled
the country by that point and was granted asylum in Russia. Debate
remains about whether his actions should be viewed through the
lens of civil disobedience — perhaps to laud Snowden for revealing a
government intrusion upon the privacy interests of millions of people
— or whether he simply has committed acts of treason that will
weaken the United States’ ability to defend itself against acts of
terror; such dualities often provide the parameters for dialogue
about civil disobedience.

CIVIL DISOBEDIENCE AND THE

STRUGGLE FOR CIVIL RIGHTS

In 1963, Dr. Martin Luther King Jr. was arrested in Birmingham,

Alabama, after leading a civil rights demonstration in the city. The
specific charge against him was “parading without a permit.” Dr.
 King had led the demonstration to protest segregation and had
applied for a permit but had been denied. In his famous “Letter
from a Birmingham Jail,” King defended his disobedience of an
“unjust” law. Echoing St. Thomas Aquinas, Dr. King wrote, “An
unjust law is a human law that is not rooted in eternal and natural
law.” In a more modern vein, he also argued that an unjust law is
one “that a majority inflicts on a minority that is not binding on
itself.” King was referring to the entire regime of laws that
maintained racial segregation. King argued that “an individual who
breaks a law that conscience tells him is unjust, and willingly
accepts the penalty . . . is in reality expressing the very highest
respect for the law.” Not everyone at the time agreed with Dr.
King’s goals or tactics. But today, he is widely hailed as an
American hero.

Legitimacy of Law in a Democratic Society

The legitimacy of law does not depend solely on its content or its
perceived relationship to some higher authority. In a democratic
society, the legitimacy of law depends greatly on how the law is
made. In a representative democracy, law is made by elected
representatives serving in a legislature. All members of the
legislature have the right to introduce legislation; a majority is
required to enact a law. Furthermore, legislators are elected through
free and fair elections in which all adult citizens have the right to
participate.
The United States relies on representative democracy, but our
system of government is much more complex than that. We are not
a simple representative democracy but rather a constitutional
republic in which majority rule is tempered by protections afforded
to minority rights by law. Moreover, lawmaking power is vested not
only in legislators but also in executive officials, in regulatory
agencies, and in courts of law. However, the way in which these
bodies make law remains very important and is key to whether their
legal pronouncements are regarded as legitimate. Thus, in thinking
about the legitimacy of law, we need to think about both
substantive legitimacy and procedural legitimacy. Substantive
legitimacy refers to the content of law; procedural legitimacy refers
to how the law is enacted and applied.4 The law is substantively
legitimate if people believe that it is based on fair, just, and
reasonable principles. It is procedurally legitimate if it is enacted,
applied, and enforced according to procedures that people regard as
fair, just, and reasonable.

Forms and Sources of Positive Law

As we have suggested, law emanates from several sources. It also
takes on different forms. In the American legal system, the major
forms of law are the following:

■ constitution The fundamental law. It sets forth the structure and

powers of government as well as the rights of citizens vis-à-vis
that government.
■ statute A law enacted by a legislature that is generally applicable
within the jurisdiction of that legislature.
■ ordinance A law enacted by a local governing body such as a city
council or a county commission. Ordinances deal principally with
matters of local concern.
■ executive order An order issued by a president, governor,
county executive, or mayor relating to matters over which the
executive official has authority.
■ treaty A legally binding agreement between countries.
■ regulation A rule promulgated by a regulatory agency.
■ judicial decision A decision by a court of law enunciating a
principle of law.

When we speak of the “law,” we are really talking about the sum
total of all of these elements as they coexist at any point in time. As
such, the law is extremely complex, somewhat uncertain, always
dynamic, and sometimes self-contradictory.

THE FUNCTIONS OF LAW IN SOCIETY

Law performs many different functions in society. Law promotes
social order and stability, but it can also be a force for change.5 Law
seeks to establish justice, but law is no guarantee thereof. Law
determines to a great extent how government operates, although
law cannot ensure good government.
Fundamentally, law protects people and their property. To the
social contract thinkers of the seventeenth and eighteenth centuries,
this was the primary purpose of law. Without law backed by the
coercive power of the state, people would have no choice but to
protect themselves, their families, their land, and their possessions
by force. Law, at least ideally, protects the rights of the weak as well
as the strong.

Law, Liberty, and Morality

Classical liberals like Thomas Jefferson viewed law as a means of
protecting not only life and property but also liberty. To the classical
liberals, freedom of speech and freedom of religion were as
important as the right to own property and to engage in private
enterprise. In the classical liberal view, the purpose of law was to
safeguard these basic human rights. In the nineteenth century, the
English philosopher and economist John Stuart Mill argued that the
law should be limited to protecting the security of the individual and
should not enforce traditional notions of morality. Today, this
libertarian view of law commands considerable support in the
United States and other advanced democratic countries.
Conservatives, on the other hand, see law and morality as
inextricably intertwined. They believe that the maintenance of
societal morality is one of the essential functions of law. One of the
best statements of this perspective can be found in Lord Devlin’s The
Enforcement of Morals, published in 1959.6 Devlin argued that law
must preserve traditional morality to prevent disintegration of the
society. In a response to Devlin, H.L.A. Hart suggested that a society
willing to sacrifice freedom by imposing morality through law may
not be a society worthy of maintaining.7 Although the “debate”
between Devlin and Hart took place in Great Britain in the late 1950s
and early 1960s, the debate over law and morality continues today.
Ultimately, that debate must take place within the context of any
legal system that values individual freedom along with social
cohesion.

Law and Economic Life

A society’s economic system affects its law, and vice versa. As the
great social theorist Max Weber recognized, a capitalist economy
requires a highly developed legal system.8 The legal system must be
capable of enforcing contracts and property claims and generally
must provide a predictable climate in which business can take place.
Uncertainty in the law regarding property, contracts, and commercial
transactions impedes voluntary economic activity. Therefore, it is not
surprising that one tends to find the most highly developed legal
systems in the most advanced capitalist countries of Europe and
North America. It should be pointed out, though, that while law
facilitates economic development by regulating transactions and
rationalizing risk, it also can serve as an impediment to economic
innovation. When too many conflicting demands are placed on the
law, it becomes excessively complex, redundant, and inscrutable, a
condition which may stifle economic activity. Some commentators
believe that we have such a situation in the contemporary United
States!
Of course, not everyone takes a benign view of the relationship
between law and capitalism. Marxists, anarchists, and radicals of
various persuasions generally see law, at least in capitalist society, as
a tool of oppression and an agent of inequality. From the Marxist
perspective, law in a capitalist society is little more than a cloak for
the power of the ruling class. Today, the critical legal studies
movement carries on this radical tradition in legal thought.
The Marxist view of law is based on the assumption that all
conflict derives from material inequality. There is no question that
economic inequality, especially if it is perceived as the result of an
unfair system, produces social and political conflict. However, most
social theorists today regard economic inequality as only one of
many sources of human conflict. And most also regard law as an
essential element of modern society — both as an expression of
societal consensus and as a means of conflict resolution.

Social Control
Law is a means of social control, but it is certainly not the only one.
Informal, unwritten rules are transmitted and enforced by social
groups, including families, peers, and colleagues. Moral principles
are developed by human communities and enforced by those
communities through a variety of informal means. The individual
conscience is also extremely important, although the extent to which
conscience constrains behavior varies considerably across
individuals. Religious precepts are developed, transmitted, and
reinforced by religious institutions. Social norms, moral principles,
and religious precepts constrain the behavior of most people, at
least most of the time. Yet, they are inadequate in some instances.
Social norms can be vague or weak, religious precepts vary
somewhat across faiths and denominations, and moral principles can
be totally lacking in some individuals. Law is necessary to pick up
where informal means of social control leave off.

Resolution of Conflict
Law is a means of conflict resolution, but, again, there are numerous
methods of conflict resolution at work in our society every day.
Individuals, groups, families, corporations, and governments usually
can work out their differences informally through discussion,
negotiation, and compromise. The law serves as a framework for
such interactions. When informal means of conflict resolution are not
fruitful, parties often seek recourse through formal legal means. Law
provides a mechanism for the peaceful resolution of conflict, but it is
by no means always successful at preventing violence.
Most theorists believe that modern society, which is increasingly
conflictual, requires a formal system of law. As society becomes
more diverse, impersonal, complex, and specialized, this requirement
grows ever stronger. At the same time, however, the strains on the
legal system become increasingly powerful. Law is the command of
the sovereign, and therefore reflects the existing structure of power
in society. But in a democratic society such as ours, law also
depends on a reasonable degree of social consensus. With
increasing social, economic, and political diversity, such a consensus
can be difficult to achieve.

Law and Societal Values

Law is an expression of a society’s values. In our complex and
diverse society, the law expresses many competing values which
often come into conflict. A few prominent examples of such conflict
are

■ private enterprise versus the public good

■ freedom versus equality
■ liberty and privacy versus crime control
■ private property rights versus environmental protection
■ national security versus freedom of the press
■ public order versus the right of public assembly
■ freedom of expression versus decency and civility
■ majority rule versus minority rights.

Although law expresses many competing values, it also provides

mechanisms to resolve conflicts between competing values.
Law as a Political Weapon
It is important to note that, under certain circumstances, the law can
be deployed as a political weapon. For example, Congress can use
its power to investigate to thwart or harass a president of the
opposing party. The executive branch, alternatively, can wield the
power of criminal prosecution as a means of attacking political
opponents. From a broader perspective, interest groups often use
civil suits to stymie government actions they oppose. Courts are
called upon to referee such disputes, but often are reluctant to
become enmeshed in what are essentially political battles. Of course,
given the variety of issues that come before the courts, and the
highly polarized nature of contemporary American politics, it is
inevitable that many judicial decisions will be seen through a political
lens.

THE DEVELOPMENT OF LAW

Primitive, tribal societies had no formal systems of law. These
societies were governed by rulers who relied on sheer power and
charisma buttressed by claims of supernatural authority. Individual
behavior and social and economic relationships were governed by
custom — and often reinforced by religion, magic, and superstition.
Offenses against the tribe, such as sacrilege or consorting with an
enemy, were dealt with by sanctions such as shunning, banishment,
or even death. Wrongs against individuals, like murder, rape, and
theft, were avenged by the victim’s family, often through actions
against the family of the wrongdoer that were grossly
disproportionate to the offense that gave rise to the vengeance.
With the emergence of agriculture, isolated tribal societies
evolved into cities and then into confederations. Systems of
government emerged, and with them came the beginnings of law, as
leaders (usually monarchs) began formalizing and enforcing customs
that had evolved among their peoples. Eventually, informal norms
and customs came to be formalized as written codes of law.
Ancient Legal Codes
The oldest known written legal code is the Code of Hammurabi,
which was produced in Babylonia some two thousand years before
Christ. Although the Emperor Hammurabi promulgated the Code that
bears his name, popular acceptance of the idea that law was of
divine origin helped buttress its legitimacy. The Code of Hammurabi
dealt with property rights, family relationships, personal injuries, and
the collection of debts. It also covered legal procedure and imposed
penalties for unjust accusations and false testimony. In terms of
crimes and punishments, the Code adopted the lex talionis , or law
of retaliation, which is similar to the Hebrew law calling for “an eye
for an eye.” Perhaps the most striking feature of the Code of
Hammurabi, however, is that it purported to protect people of
different sexes and all social classes, including slaves. Thus, in this
most ancient legal code, we find the seeds of a concept that is so
fundamental to our system of law today — the ideal of equal
protection of the law.
The ancient Greeks also contributed to the development of law.
In the seventh century B.C., Draco, an Athenian legislator, developed
a very strict legal code for the Athenian city-state. Even today, one
hears strict rules or penalties characterized as “Draconian.” A century
later, the Code of Draco would be replaced by the Code of Solon.
Beyond its more liberal character, the distinctive feature of this Code
was that it permitted litigants to appeal the decisions of magistrates
to public assemblies of Athenians, an innovation that foreshadowed
the right to trial by a jury of one’s peers.

Roman Law
By far the most significant of the ancient legal codes was the
Roman Law, which formally began with the introduction of the
Twelve Tables in the mid-fifth century B.C. Prior to the Twelve
Tables, disputes between Roman citizens were decided on the basis
of unwritten customary rules. When these rules were in doubt, the
College of Pontiffs, made up of patrician aristocrats, rendered
authoritative interpretations. Plebeians (common citizens) often
objected to the interpretations rendered by the Pontiffs, and
eventually demanded that the Roman Law be codified. The resulting
Twelve Tables would serve as the basis of Roman Law for one
thousand years. Over the centuries, Roman Law was modified,
expanded, and extended through a series of imperial edicts. In the
early sixth century A.D., the Byzantine Emperor Justinian
commissioned the legal scholar Tribonian to produce a systematic
codification of the Roman Law. The result was the Corpus Juris
Civilis, or Body of Civil Law, also known as the Code of Justinian.
When completed, it was supplemented by the Novellae (new laws),
placing long-established Roman customs in statutory form. After the
decline of the Roman Empire, the feudal system relied largely on
customs and later on royal decrees. A remnant of the Roman Law
remained, and during the twelfth century the study of the Roman
Law was revived in Italy and, later, in France. Throughout the Middle
Ages, the canon law of the Roman Catholic Church exercised great
control in personal relations such as marriage and inheritance. The
Roman Law eventually became the basis of law throughout the
entire continent of Europe.

The Napoleonic Code

The Napoleonic Code, promulgated under Napoleon Bonaparte in
1804 as a codification of all the civil and criminal laws of France, was
based in large part on the Code of Justinian. The Code was
decidedly modern in that it was secular, rational, comprehensive,
and written in the common language of the people. The Napoleonic
Code became a model for a uniform system of law for the nations of
Western Europe. This is why the legal systems of Western Europe
are often said to be “Roman law” systems.9 Roman law systems are
based on the primacy of statutes enacted by the legislature. These
statutes are integrated into a comprehensive code designed to be
applied by the courts with a minimum of judicial interpretation.
THE COMMON LAW TRADITION
American law is derived largely from the English common law,
which dates from the eleventh century. At the time of the Norman
Conquest of 1066, English law was a patchwork of local laws and
customs, often applied by feudal courts, and church law enforced by
ecclesiastical courts. William the Conqueror, the first Norman king of
England, strengthened the royal courts established by his Anglo-
Saxon predecessors. His son, King Henry I, dispatched royal judges
to preside in county courts. His eventual successor, Henry II, greatly
expanded the role of the royal judges by instructing them to travel
throughout the kingdom, taking jurisdiction in cases formerly under
the province of feudal and local courts.
The King’s judges settled disputes based on the customs of the
Anglo-Saxon people and the well-established principles of feudal
society. These royal courts grew increasingly popular due to their
reliance on trial by jury, which of course would become a bedrock
principle of Anglo-American justice. The judges of these courts
began to look to the decisions of their colleagues in similar cases to
guide their judgments. Out of the decisions of these courts grew a
law common to the entire kingdom, hence the term “common law.”

Magna Carta
One of the most important moments in the development of Anglo-
American law occurred in 1215, when a reluctant King John placed
his seal on Magna Carta. Essentially, Magna Carta was a series of
promises that the King would follow the dictates of the law in
dealing with his subjects and vassals. This document established the
principle that government is subject to the rule of law, which is the
essential idea upon which the United States Constitution is based.
Magna Carta is also the source of another bedrock principle in our
legal system today — the idea of due process of law. Magna Carta
stipulated that “[n]o free man shall be taken or imprisoned or
disseised or outlawed or exiled or in any way destroyed, nor will we
go or send against him, except by the lawful judgment of his peers
or by the law of the land.” Later statutes and court decisions would
use the term “due process of law” as synonymous with “the law of
the land.” The American Bill of Rights even uses the term “due
process of law” in protecting citizens’ rights to life, liberty, and
property. But, the essential idea was expressed nearly six hundred
years earlier in Magna Carta.

The Common Law Courts

By the time Magna Carta was signed, there were three common law
courts: the King’s Bench, the Court of Common Pleas, and the Court
of Exchequer. The Court of King’s Bench dealt primarily with “pleas
of the Crown,” which later came to be known as criminal cases. The
Court of Common Pleas had jurisdiction over “common pleas,”
disputes between individuals that would later come to be termed
“civil” cases. The Court of Exchequer originally dealt with matters
involving the King’s property and revenue. Later, through a
procedural device called the writ of Quominus, the Court of
Exchequer extended its jurisdiction to private controversies.10

The Doctrine of Stare Decisis

In 1292, court clerks began recording the rulings of the common law
courts, and by the fourteenth century these decisions were serving
as precedents to guide judges who addressed similar cases. As the
centuries passed, coherent principles of law emerged from the
decisions of the judges. Thus, in contrast to Roman law systems,
which are based on legal codes, the common law developed
primarily through judicial decisions. The common law doctrine of
following precedent became known as stare decisis, which means
“to stand by that which is decided.” This idea took hold with the
development of the printing press in the fifteenth century. Today, it
remains an important component of both the English and American
legal systems. The doctrine holds that a court should follow the
Another random document with
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The Project Gutenberg eBook of Bits from
Blinkbonny; or, Bell o' the Manse
 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
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eBook.

Title: Bits from Blinkbonny; or, Bell o' the Manse

a tale of Scottish village life between 1841 and 1851

Author: John Strathesk

Release date: November 27, 2023 [eBook #72243]

Language: English

Original publication: Toronto: William Briggs, 1885

Credits: Susan Skinner, Quentin Campbell, and the Online

Distributed Proofreading Team at https://www.pgdp.net
(This file was produced from images generously made
available by The Internet Archive)

*** START OF THE PROJECT GUTENBERG EBOOK BITS FROM

BLINKBONNY; OR, BELL O' THE MANSE ***
 Transcriber’s Note

The cover image was restored by Thiers Halliwell and is placed in the
public domain.

Click any image to see a larger version.

See end of this transcript for details of corrections and other changes.
BITS FROM BLINKBONNY.
The Artists Bit.
BITS FROM BLINKBONNY
OR

BELL O’ THE MANSE

A TALE OF SCOTTISH VILLAGE LIFE BETWEEN

1841 AND 1851

BY

JOHN STRATHESK

With Six Original Illustrations

TORONTO
WILLIAM BRIGGS, 78 & 80 KING ST. EAST

C. W. COATES, Montreal, Que. S. F. HUESTIS, Halifax, N.S.

——
1885
Entered, according to the Act of the Parliament of Canada, in the year one thousand eight hundred and
eighty-five, by William Briggs, agent for John Tod, St. Leonard’s, Scotland, in the Office of the Minister
of Agriculture, at Ottawa.
 PREFACE.
——◆——

T HESE “Bits from Blinkbonny” were grouped together by the

Author to beguile the tedium of a protracted period of domestic
quarantine. They are not only his first attempt at sustained
literary work, but they were commenced without any concerted plan.
Blinkbonny was selected as a pretty name for a Scottish village, but
the Author himself cannot fix the precise locality; and all the names
he has used are supposititious, excepting those of such public
characters as Dr. Duff, Dr. Guthrie, etc.
Owing to his having adopted the autobiographical form, the Author
has experienced more difficulty in writing the preface than any other
part of the book, as, although most of the incidents are founded on
fact, a good deal of imported matter has been required to form a
connected narrative. He also knows that in bringing together the
varieties of character and incident that an ordinary Scotch village
affords, he has passed “from grave to gay, from lively to severe,” in
some instances with injudicious abruptness, and that there are other
defects for which he needs to apologize; but as even his readers will
probably differ as to where these occur, it is not desirable for him to
dwell on them.
The Author is not in any way connected with the Free Church of
Scotland, and at the outset he had no intention of treating so largely
as he has done of the “Disruption” of 1843; if, however, he induces
the rising generation to study the past and the present of that great
movement, neither they nor he will regret the prominence given to it
in this volume.
The illustrations with which the book is embellished are
“composition” sketches; but the Author confidently leaves these to
introduce themselves.
The idiom of the Scottish language—the dear old Doric—has been to
the Author a difficult matter to render, so as to be at once intelligible
to ordinary readers and fairly representative of the everyday mother
tongue of the common people of Scotland. He hopes that he has
succeeded in doing this, as well as in preserving a few of the floating
traditions of the passing generation which are so rapidly being swept
away by the absorbing whirlpool of these bustling times, and that his
readers will follow with kindly interest these homely records of the
various subjects he has tried to portray in these “Bits from
Blinkbonny.”
PREFACE TO THE SECOND EDITION.
The author is delighted to find you so hurriedly called for, that he has
only time to express the hope that you will receive as kindly a
welcome as your precursor has done.
February 1882.
 PREFACE TO THE THIRD EDITION.
The author gladly avails himself of the opportunity you afford him, to
express his gratification at the warm reception which Bell and her
friends at Blinkbonny have met with on both sides of the Atlantic, as
well as to make a few verbal corrections.

“The cleanest corn that e’er was dicht

May ha’e some pyles o’ caff in.”

July 1882.
 CONTENTS.
——◆——

CHAPTER I.
THE MANSE.
PAGE

The Artist and his Bits—Blinkbonny—The Author and his

Relations—The Good Folks at Greenknowe—The
Manse—Once thinking of getting married—The
Interrupted Call—Mr. and Mrs. Barrie—Bell of the
Manse—Wee Nellie—Her Illness, Death, and Grave
—“A Butterfly on a Grave” (Mrs. Sigourney), 1

CHAPTER II.
A QUIET EVENING AT THE MANSE.
Bell’s Sliding Scale—Her Pattens—The Hospitality of the
Manse—Be judeecious—James and his Skates—
Mrs. Barrie’s Experiences—Mr. Barrie’s Illness—The
Good Samaritan—A Startling Proposal, 22

CHAPTER III.
THE MARRIAGE AND THE HOME-COMING.
“The Books”—P.P.C.—Marriage Presents—“The
Confession of Faith”—Toasts—“The Frostit
Corn”—“The Country Rockin’”—Auntie Mattie—“The
Farmer’s Ingle”—Peggy Ritchie on the Churchyard—
A Lamb Leg and a Berry Tart—Mathieson’s Heid, 41

CHAPTER IV.
THE TWO SIDES OF THE CHURCH QUESTION.
Coming Events—Bell and the Seed Potatoes—Her Idea 58
of the Government—Knowe Park—Spunks—The
 Town-Clerk of Ephesus—Bell’s summing up—Daisy
—The Eve of Battle—Sir John McLelland’s Opinions
on the “Evangelicals”—Patronage—Preaching
Competitions—Little Gab—Non-Intrusion and Voting,

CHAPTER V.
BLINKBONNY AND THE DISRUPTION.
Bell’s Opinion of Knowe Park—Mr. Barrie’s Return—The
Deputation’s Visit to the Manse—Mr. Barrie’s
Statement—Mr. Taylor’s Views—George Brown on
the Crisis—His Covenanting Relics, 85

CHAPTER VI.
THE DISRUPTION AND BLINKBONNY.
The Meeting in Beltane Hall—The End of the Ten Years’
Conflict—George Brown’s Exercises—The Bellman’s
Difficulty—Sabbath Services at the Annie Green
—“Thae Cath’lics”—The Secession Church—Mr.
Barrie’s Successor—Bell and Smoking—“Hillend” on
Doctors and Ministers—A Man amang Sheep, 99

CHAPTER VII.
OUT OF THE OLD HOME AND INTO THE NEW.
Leaving the Manse—Dr. Guthrie and the Children—
Nellie’s Tibby—Well settled—Bell’s Experiment with
the Hens—Dan Corbett—Braid Nebs—Babbie’s Mill, 126

CHAPTER VIII.
BLINKBONNY FREE CHURCH.
The Disruption of 1843—Hardships—Scotch Villages and
Church Matters—The New Church—The Session
and Deacons—The Beadle, Walter Dalgleish—The
Precentorship—Psalms and Hymns—Mr. Barrie’s
New Life—Foreign Missions—The Assembly’s
Decision—The Living Child—Saxpence—“Gude Siller
gaun oot o’ the Country”—Reminiscences of Dr. Duff, 154
 CHAPTER IX.
BELL AT HOME IN KNOWE PARK.
The Three Ministers of Blinkbonny—Mr. Walker—The Ten
Virgins—The finest o’ the Wheat—Bell’s Fee—Alloa
Yarn—Bell’s Cooking—Sheep’s-head—Mr. Kirkwood
and the Potato-Soup—Dan in the Kitchen—Mr.
Gordon o’ the Granaries and the Smugglers—Dan at
Nellie’s Grave—Mr. Barrie’s Visit to Dan, 177

CHAPTER X.
INCIDENTS IN BLINKBONNY.
Miss Park on Dan—The Sweep’s dead—Mrs. Gray’s
Elegy on her Husband—The Coffin for naething—The
New School-master—The Roast Beef in the Lobby—
The Examination Committee—“Hoo’ to get there”—
George Brown’s Death—Scripture References—Mrs.
Barrie and Mr. Corbett—Dan and the Pictures—Dan’s
Bath—His Dream—Dan at Church—His Visit to
Babbie’s Mill—Colonel Gordon’s First Visit—Sir John
McLelland at the Soiree—“The Angel’s Whisper”
(Samuel Lover), 205

CHAPTER XI.
CHANGES AT KNOWE PARK.
The Dorcas Society—The Morisonian Controversy—
Colonel Gordon’s Second Visit—A Real Scotch
Dinner—Champagne—Dan an’ the Duke o’ Gordon—
The Smuggler’s Log-book—Colonel Gordon’s Will—
Dan’s Bank—The Call to Edinburgh—No-Popery
Agitation—David Tait o’ Blackbrae—The Sow and the
Corinthians—Bell woo’d—Mrs. Barrie breaks the Ice
—Bell won—Found out and congratulated, 230

CHAPTER XII.
ANOTHER MARRIAGE AND HOME-COMING.
The Forms of Procedure—Reception of the News of Bell’s 259
Marriage by Mr. Taylor, and by Sir John McLelland
—“Her Weight in Gold”—Bell’s Presents—“Hook ma
 Back”—Mr. Walker’s Violin—Bell’s Marriage and
Home-coming—The Infar Cake—Creeling—Dan,
“Burke,” and the Noisy Convoy—The Vexing Pig—
The “Kirkin’,”

CHAPTER XIII.
CONCLUSION.
The Packing at Knowe Park—The Bachelor Umbrella—
Nellie’s Box—Dan and Rosie—Dan on Evangelical
Effort—On “The Angel’s Whisper”—Bell in Edinburgh
—Home to Blackbrae—Andrew Taylor’s Criticisms, 284
 LIST OF ILLUSTRATIONS.
——◆——

The Artist’s Bit, Frontispiece.

Blinkbonny, Page 6
Bell and “Daisy,” ” 70
Babbie’s Mill, ” 152
Dumbarton Castle, ” 197
Bell’s “Hoose o’ her Ain”—Blackbrae, ” 250
BITS FROM BLINKBONNY.
BITS FROM BLINKBONNY.
——◆——