Chapter II: Front Matter (2)

It is to little or no purpose to be able to say that such offences do not originate in conscious malice, for, as has just been intimated, the same is true of a large proportion of acknowledged crimes. It is seldom, very seldom, that men injure one another from hatred, or for the sake of revenge—because they find, or expect to find, any pleasure in the mere consciousness of inflicting pain. Men injure one another from wantonness, or want of consideration; or, more commonly still, because the carrying out of their policy, or their prejudices, or their sport, happens to interfere with the interests and comfort of others, and, though really sorry for this, they are not prepared to give up either their policy or their prejudices, or their sport to spare another’s feelings. Wars are waged and conquests made, mourning and desolation spread through a whole country, in the wantonness of honor, or to gratify an insatiable ambition; but without anything which can properly be called malice, either in the first movers or immediate agents. Men opposed to each other in politics or religion will allow this opposition to go to very unjustifiable lengths, even to the disturbing of the peace of neighborhoods, and the breaking of friendships and family connections; and all this, to be sure, must give rise to a great deal of ill-will and hot blood; but it does not originate in malice, properly so called—in positive malice toward anybody. Likewise a rash and improvident man may bring incalculable mischief on all connected with him, involving them in pecuniary difficulties, or committing and paining them in other ways, and yet be able to allege with perfect truth that he did not mean to do them any harm; that, so far from being actuated by malice, he feels nothing and has felt nothing but the sincerest affection for the very persons whom he has injured, and most affection, perhaps, for those whom he has most injured. But why multiply illustrations? The whole catalogue of the vices of self-indulgence and excess—black and comprehensive as it is—has nothing to do with malicious intent; that is to say, these vices do not find any part of their temptation or gratification in ill-will to others, or in the consciousness of causing misery to others. And yet who, on this account, denies that they are vices, or that they are among the worst of vices?

The moral perplexity existing in some minds on this subject may be traced to two errors: making malice to be the _only_ bad motive by which we can be actuated, and confounding the mere _absence of malice_ with that active principle of benevolence, or love of our neighbor, which Christianity makes to be the foundation and substance of all true social virtue.

How unfounded the first of these assumptions is, appears generally from what has been said; but the same may also be shown on strictly ethical grounds. We must distinguish between what is simply _odious_, and what is immoral. The malignant passions when acted out by animals are odious, but they are not immoral, because they are not comprehended in that light by the agent. The reason why the malignant passions are immoral in man is that he knows them to be immoral; and accordingly any other passion, which he knows to be immoral, becomes for the same reason alike immoral to him as a principle of conduct. Hence it follows that, though not actuated by malice, we may be by some other motive equally reprehensible in a moral point of view, though not perhaps as odious—by the love of ease, by vanity or pride, by unjust partialities, by inordinate ambition, by avarice or lust—dispositions which have nothing to do with malice, but yet are felt and acknowledged by all to be bad and immoral.

[_February 10._]

Moreover, the tendencies of modern civilization are to be considered in this connection. Times of violence are gradually giving place to times of self-indulgence and fraud; and the consequence is that now, where one man is betrayed into vices of malevolence and outrage, twenty are betrayed into those of frivolity, licentiousness, or overreaching. I go further still. Suppose a man actuated by none of these positively bad motives; nay, suppose the injury done to be accidental and wholly unintentional, this will not in all cases justify the deed. The question still arises whether the injury done, supposing it to be wholly unintentional, might not have been foreseen, and ought not to have been foreseen; for, where the well-being of others is concerned, we are bound not only to mean no harm, but to take care to avoid everything which is likely to do harm; and negligence in this respect is itself a crime. So obviously just is this principle, so entirely does it approve itself to the reason and common sense of mankind, that we find it everywhere recognized, in some form or other, in the jurisprudence of civilized countries. “When a workman flings down a stone or piece of timber into the street, and kills a man, this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act is done. If it were in a country village, where a few passengers are, and he calls out to all people to have a care, it is misadventure only; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning; and murder, if he knows of their passing and gives no warning at all, for then it is malice against all mankind.”[A]

Equally groundless is the second of the above mentioned assumptions, to wit: that of confounding the mere _absence of malice_ with the active principle of benevolence itself or that love of our neighbor which Christianity makes to be the foundation and substance of all true social virtue. There is nothing, perhaps, which more essentially distinguishes worldly propriety and legal honesty from Christian virtue than this, that they stop with negatives. They are content with avoiding what is expressly forbidden, not reflecting that this, at the best, only makes men to be _not bad_; it does not make them to be good. Besides, if we take this ground, if we allege the absence of all anger and resentment, we bar the plea that we were hurried into the act by the impetuosity of our passions—a plea which the experience of a common infirmity has always led men to regard as the strongest extenuating circumstance of wrong-doing. If we have given pain to a fellow creature, it is stating an aggravation of the fault and not an excuse, to say that we did not do it in passion, but in cold blood; and worse still, if we say that we did it in sport. What! find sport in giving pain to others? This may consist, I suppose, with the absence of what is commonly understood by malice; but I utterly deny its compatibility with active Christian benevolence, or with what indeed amounts to the same thing, a kind, generous, and magnanimous nature. Were I in quest of facts to prove the total depravity of man, I should eagerly seize on such as the following: The shouts of heartless merriment sometimes heard to arise from a crowd of idlers collected around a miserable object in the streets; a propensity to turn into ridicule, not merely the faults and affectations of others, but their natural deformities or defects; jesting with sacred things, or practical jests, the consequences of which to one of the parties are of the most serious and painful character; and the pleasure with which men listen to sarcastic remarks though causeless and unprovoked, or to wit the whole point of which consists in its sting. Not that the doctrine of universal and total depravity is actually proved even by such conduct, for happily the conduct itself is not universal; to some it is repugnant from the beginning; and besides, even where it is fallen into, I suppose it is to be referred in a majority of cases to a love of excitement, rather than to a love of evil for its own sake. Still I maintain that the conduct in question, however explained, is incompatible, or at any rate utterly inconsistent, with thoughtful and generous natures.

[A] Blackstone.

[_February 17._]

Still, many who would not think entirely to excuse the conduct in question can find palliations for it and extenuating circumstances, some of which it will be well to examine.

In the first place it is said that the sport is not found in the sufferings of the victim, but in the awkward and ludicrous situations and embarrassments into which he is thrown. Now I admit, that, if these awkwardnesses and absurdities could be entirely disconnected with the idea of pain, they might amuse even a good mind; but as they can not be thus disconnected—as all this is known and seen to be the expression of anguish either of body or mind, or to be the consequence of some natural defect or misfortune, or some cruel imposition on weakness or good nature—I affirm as before, that he whose mirth is not checked by this single consideration betrays a want of true benevolence, and even of common humanity. Neither will it help the matter much to say that the pain and mortification are not known, are not seen, or at least _are not attended_ to; that this view of the subject is entirely overlooked, the mind being wholly taken up with its ludicrous aspects. For how comes it that we have so quick a sense to everything ludicrous in the situation and conduct of others, but no sense at all to their sufferings? Our hearts, it would seem, are not as yet steeled against all sympathy in the sufferings and misfortunes of our neighbors, provided we can be made to apprehend and realize them; and this is well; but why _so slow_ to apprehend and realize them? If, though directly before our eyes, the thought of them never occurs to our minds; if we can say, and say with truth, that while we enjoy the sport it never once occurred to us that it was at the expense of another’s feelings, though this fact was all the time staring us in the face—does it not at least betray a degree of indifference or carelessness about the feelings of others, which is only compatible with a cold and selfish temper? Put whatever construction you will, therefore, on this kind of sport, it argues a bad state of the affections; for either its connection with the pain and mortification of others is perceived, and then it is downright cruelty; or it is not perceived, and then it is downright insensibility.

Another ground is sometimes taken. There are those who will say, “We cannot help it. Persons of a constitution less susceptible to the ludicrous, or less quick to observe it, may do differently, but we cannot.” Obviously, however, reasonings of this sort, if intended as a valid excuse, betray a singular and almost hopeless confusion of moral ideas. They cannot help it? Of course they do not mean that they would be affected in the same way by the same thing, under all circumstances and in all states of feeling. Let the coarse jest be at the expense of a parent, or of a sister; or let its tendency be to bring derision on an office, a cause, or a doctrine which we have much at heart; or let it offend beyond a certain point against the conventional usages of what is called good society—and, instead of provoking mirth, it provokes indignation or contempt. All they can mean, therefore, is simply this: Their sense of the ludicrous is so keen, that, when not restrained by some present feeling of justice, humanity, or decorum, it becomes irrepressible. Undoubtedly it does; but this is no more than what might be said of the worst crimes of sensuality and excess. What would you think if a sordid man should plead, that being sordid by nature, and not having any high principle or feeling to restrain him, he cannot help acting sordidly? Does he not know that it is this want of high principle and feeling which constitutes the very essence of his sin? We have shown that to find sport in what gives pain, argues a bad state of the principles and affections. Manifestly, therefore, it is to no purpose to urge as an excuse, that in the existing state of our principles and affections we can not help it; for the existing state of our principles and affections is the very thing which is complained of and condemned.

It may be contended, as a last resort, that this state of mind is consistent, to say the least, with amiable manners, companionable qualities, and good nature. But if herein is meant to be included real kindness of heart, or the highest forms of generosity and nobleness of soul, I deny that it can be. There is no necessity of trying to make it out that men of this stamp are worse than they really are. Unquestionably they can and often do make themselves agreeable and entertaining, especially to those who are not very scrupulous about the occasions of their mirth, and feel no repugnance to join in a laugh which perhaps they would hesitate to raise. Good-natured also they may be, if nothing more is meant by this than the absence of an unaccommodating, morose, and churlish disposition; for there are two sorts of good nature, the good nature of benevolence, and the good nature of ease and indifference. The first will not consist, as we have seen, with wrong-doing from wantonness or in sport; but the last may; yet even when it does, not much credit can accrue from this circumstance. Worthy of all honor is that good nature which springs from genuine kindness and sympathy, or a desire to make and to see everybody happy; but the same can hardly be said of what often passes for good-nature in the world, though it is nothing but the result of an easy temper and loose principles.

[_February 24._]

Still, I can not but think that a large majority of those who sometimes look for sport in wrong-doing have enough of humanity and of justice to restrain them, if they could only be made to understand and feel the extent of the injury thus occasioned. Take, for example, jesting with sacred things. Its influence on those who indulge in it is worse than that of infidelity, for it destroys our reverence, and it is harder to recover our reverence, after it has been lost, than our convictions. Nay, it is often worse than that of daring crime; the latter puts us in opposition to religion, but it does not necessarily undermine our respect for it, or the sentiment on which the whole rests. Consider, too, its effect on others. The multitude are apt to mistake what is laughed at by their superiors for what is ridiculous in itself. In France it was not the sober arguments of a knot of misguided atheists, but the scoffs and mockeries and ill-timed pleasantries in which the higher classes generally shared, which destroyed the popular sense of the sanctity of religion; and when this great regulative principle of society was gone, it was not long before the mischief came back, amidst scenes of popular license and desperation, “to plague the inventors.” And so of cruel sports. In reading the Sermon on the Mount, you must have been struck with the fact that, while he who is angry with his brother is only said to be in danger of the judgment, “whosoever shall say, thou fool, shall be in danger of hell fire.” But, on second thoughts, is this anything more than a simple recognition of what we all know to be true; that hatred does not inflict half so deep or bitter a feeling of wrong as scorn? Much is said about the disorganizing doctrines and theories of the day, but, bad as these are, they are not likely to do so much to exasperate the poor against the rich, and break down the bulwarks of order and law, as the conduct of some among the rich themselves. The time was when the few could trample with indifference on the interests and feelings of the many, and make sport of their complaints with impunity, but that time has passed away.

One word also on those cruel sports where animals, and not men, are the sufferers. Cruelty to animals is essentially the same feeling with cruelty to a fellow-creature, and in some respects it is even more unbecoming. Man is as a god to the inferior races. To abuse the power which this gives us over the helpless beings that Providence has placed at our mercy, is as mean as it is inhuman. If we would listen to the pleadings of what is noble and generous in our natures, it would be as impossible for us needlessly to harm an unoffending animal, as it would be to strike an infant or an idiot. Shame on the craven who quails before his equals, and then goes away and wreaks his unmanly resentments on a creature which he knows can neither retaliate nor speak! Besides, we may suppose that there are orders of beings above us, as well as below us. Look then at our treatment of the lower animals, and then ask yourselves what we should think, if a superior order of beings should mete out to us the same measure. What if in mere wantonness, or to pamper unnatural tastes, they should subject us to every imaginable hardship and wrong? What if they should make a show, a public recreation, of our foolish contests and dying agonies? Nay, more; what if it should come to this, that in their language a man-killer should be called a _sportsman_ by way of distinction?

But I must close. We have it on the authority of the Bible, and we read it in the constitution of man, that there is “a time to weep and a time to laugh.” There will also be ample scope for the legitimate action of caustic wit, so long as there are follies to be shown up, pretenders to be unmasked, and conceit and affectation to be taught to know themselves. But, in the serious strifes of the world, the ultimate advantages of this weapon, though wielded on the right side, are more than dubious. “The Spaniards have lamented,” it has been said, “and I believe truly, that Cervantes’ just and inimitable ridicule of knight-errantry rooted up, with that folly, a great deal of their real honor. And it was apparent that Butler’s fine satire on fanaticism contributed not a little, during the licentious times of Charles II., to bring sober piety into disrepute. The reason is evident; there are many lines of resemblance between truth and its counterfeits; and it is the province of wit only to find out the likenesses in things, and not the talent of the common admirers of it to discover the differences.” At any rate we can shun the rock of small wits who think to make up for poverty of invention by a scurrility and grimace, who think to gain from the venom of the shaft what is wanting in the vigor of the bow. We can imitate the example of those among the great masters of wit in all ages, who have ennobled it by purity of expression and a moral aim; so that, in the end, virtue may not have occasion to blush, or humanity to mourn, for anything we have said or done. Take any other course and we are reminded of the confession which experience wrung from the lips of the wise man: “I said in my heart, go to now, I will prove thee with mirth; therefore enjoy pleasure; and behold this also is vanity. I said of laughter, it is mad; and of mirth, what doeth it?” “Even in laughter the heart is sorrowful, and the end of that mirth is heaviness.”

COMMERCIAL LAW.

By EDWARD C. REYNOLDS, ESQ.

I.—LAW IN GENERAL.

It perhaps would be well for us to take a glance at the origin of the law which we are about to consider in its practical applications. In all our business relations, and in fact in our general conduct, so far as that term would apply to one as a member of a community and a citizen, we are controlled in our action by absolute, and in some instances possibly, by arbitrary regulations or laws, with which perhaps we may be wholly unfamiliar, but which are none the less binding and positive in their exactions because we have neglected to familiarize ourselves with their requirements.

It is a rule of law, that ignorance of it excuses no one. For this reason ignorance is never pleaded in court as an answer to civil or criminal allegations of any sort. This rule presupposes a knowledge of the law on the part of every citizen. While, strictly speaking, this is impossible and in reality but a fiction, any other provision would be fraught with danger. Although, through the observance of this rule, doubtless, hardships are occasioned—as in fact must result from the enforcement of any law, however wise—it is notwithstanding that, a very necessary and strictly proper presumption. Were it to be otherwise, any attempt to enforce obligations against dishonest parties or to punish crime would prove ineffectual, because recourse would always be had to this defense. Thus all law would be a nullity.

There is fortunately a safe rule to be adopted as a guide for our conduct, which in the main, if strictly obeyed, will obviate the seeming hardship. Notwithstanding the fact that all inhibitions do not involve an absolute wrong or right, that all enforcements of law are not with justice, yet if a strict standard of right and honorable dealings characterize individual action and conduct, for those who adopt such a course there is but slight possibility that there is any especial oppression in store.

But wrong doing exists. The remedy is existing law. What is it, which as such we are to obey, and which we may safely designate as the principle of personal protection?

The nucleus of the now voluminous laws of our country was the well established laws, customs and usages of the American colonies of Great Britain, when their independence was secured. At that time the laws of Great Britain had become so generally interwoven into our judicature as well as into our business customs and relations, that the introduction of a wholly new system of laws would have proved disastrous, even if it could have been accomplished.

Since, in part, law is the outgrowth of customs and ways, as we shall see, to have attempted the engrafting of a wholly new system would have been equivalent to an attempt to change at once the habits and characteristics of a people.

The familiarity of the colonists with the then existing law, and its adaptability to the then commercial transactions, made it a desirable nucleus—already for our people, with which they might inaugurate a system of their own.

This, then, was accepted as the common law of the country at that time. But however well adapted the then existing laws may have been to the wants of the people and commerce, ever changing conditions of life and ever increasing business complications rendered additions and new provisions necessary. These changes were made necessary and were fostered by statute law.

Statute law is the result of the deliberations of legislative assemblies. Each state has its own legislature and statute law, as has the national government. The general government being the superior power, its laws must be recognized as superior to state laws, that is, there can be no state law inconsistent with the laws of the national government. The state legislatures and national congress have power to make laws, and whatever is declared by these bodies to be the supreme law of the land, for the government of the individual and the protection of property, providing it does not conflict with the provisions of the national and state constitutions respectively, must be obeyed as such.

This then is statute law: An enactment regarding the rights of persons or property, passed by representatives of the people in legislature assembled.

When a question has arisen concerning which statute law has no provisions, or some regular enactment is so worded that its meaning is doubtful and extremely liable to be misunderstood, to compensate for the lack in the one instance and to interpret properly the intention of the law makers in the other, we resort to the common law, fairly said to be “the accumulated wisdom of centuries.” Analogy will lead us to conclude, and correctly, that this is the conservative element of the system—the origin of which we have previously alluded to in part—to which we would add the customs and usages which have, since our recognition as an independent people, received the sanction of our courts, and to become acquainted with which reference must be made to the published reports of the courts, known as the “U. S. Reports,” “Maine Reports,” etc.

That the common law may remain to a great extent unchangeable, much respect is paid to the decisions of the courts, by others than those by which they were enunciated, for it has ever been deemed better that a precedent be respected, even if it be not the soundest law, than to have what might seem to be better logic at the expense of a varying precedent. Then we conclude, that though legislatures be radical in the change of existing laws, yet in the task of applying or interpreting such laws, so changed, courts are generally very conservative. It will thus be seen that the rights of the people are not liable to be unwarrantably abridged or destroyed by any uncertain movement of a day.

By referring to our national and state constitutions, our readers will see that the powers of both national and state governments are divided into three departments, known as the executive, legislative and judicial, each of which is distinct from the others, although they work in harmony in the enactment and enforcement of the laws. The courts come under the head of that last named, and their duties have been demonstrated to be “to define, declare and apply the laws.”

Of this common and statute law a very essential part is that which is applicable to business, or commercial law, or, as it is generally denominated in the books, the “Law-Merchant.” Much of the law bearing upon this subject is the old common law, with the enlargements consequent upon an increased commercial activity. Here it is that we find many of the customs and usages of merchants gradually merging into recognized law. The three “days of grace” allowed on all commercial paper is but a common illustration of this, similar in origin to many customs in all departments of trade, which might easily be cited, and which were in their inception of very limited significance, but which have continually been receiving a more extended recognition, until we find them clothed with all the insignia of authority.

These customs and usages we shall have occasion to give more extended explanations as we touch upon the several sub-divisions of our topic. There are a few technical words which we shall find it convenient to use. Prof. Greenleaf clearly expresses the reason for this, as follows:

“A great deal of the language of every art or science or profession is technical (indeed, technical means belonging to some art), and is peculiar to it, and may not be understood by those who do not pursue the business to which it belongs. This is as true of the law as of everything else.… A good instance of this is in those words which end in _er_ (or _or_) and in _ee_. As for example, promisor or promisee, vendor and vendee, indorser and indorsee. These terminations are derived from the Norman-French, which was for a long time the language of the courts and of the law of England. And it might seem that we had just as good terminations in English, in _er_ and _ed_, which mean the same thing. But this is not so. Originally they meant the same thing, but they do not now, for both _er_ and _ee_ are applied, in law, to persons, and _ed_ to things, so that we want all three terminations. For example, indorser means the man who indorses; indorsee the man to whom the indorsement is made; but the note itself we say is indorsed. So vendor means the man who sells, vendee the man to whom something is sold, and the thing sold is vended.”

In regard to the phrase “presumption of law,” to which we may have occasion to refer. The significance of this phrase is this: Under certain conditions, without absolute proof of the matter concerning which some conclusion is sought, the law will presume to interpret the intention or acts of persons. For instance, regarding criminal procedure, one is presumed to be innocent until he is proved to be guilty. Presumptions prevail only when proof is lacking.

CONTRACTS.

A contract has been aptly defined to be “an agreement to do or not to do some particular thing.” It may be verbal or in writing. If the conditions of a contract, whether verbal or written, be expressly stated and agreed upon, it is then termed an expressed contract. If on the other hand there are no well defined and specific agreements regarding the undertaking or the consideration to be paid for its accomplishment, it is called an implied contract.

The conditions of an expressed contract must be strictly complied with, and the parties to it are bound to faithfully observe the same, however onerous may be the burden, while the conditions of an implied contract not being agreed upon specifically, are such as custom may dictate. As an illustration of this: A agrees to pay B two dollars per day for labor. This is expressed, so far as the rate of wages is concerned; but the number of hours that shall be taken to constitute a day’s work is not agreed upon, and must be determined by implication. As a result, the question would be settled by the custom in such matters which obtained in the place where the contract was made. Or, if A engages B to undertake the building of a cottage, with no stipulations regarding the wages to be paid, B when the work is completed can recover for his compensation whatever is proved to be the usual and customary remuneration paid men in the same business and possessed of equal skill. The enforcement of obligations is no less strict when the standing of the contract is implied than when expressed, after determining what the obligations of the parties are.

The elements of a contract are parties, consideration, subject matter, mutual assent and time.

PARTIES.—Two or more competent persons may make a legal contract. Competent persons, it will be observed. What constitutes competency? Generally, legal age and sound mind; while minority, insanity, idiocy, intoxication and coverture are said to be the conditions of incompetency. With the exception of a few states where females become of age at eighteen, the legal age is twenty-one years. A consideration of the conditions of incompetency will sufficiently explain the requisites of competency negatively. Minors, or those who have not attained legal age, or infants as the law denominates them, are considered incompetent because of inexperience, and a fair presumption that unprincipled parties might take unfair advantage of them, and lead them into business complications which a riper experience would disapprove. The contracts of a minor approved by him when he becomes of age are binding, however; so that it will be observed, such contracts are not absolutely void, only voidable at the discretion of the minor. If an infant makes a transfer of real estate he may, on reaching his majority, compel the purchaser to reconvey the property, by returning to him the purchase money. The law would not permit him to retain the purchase price and compel the re-transfer, because it is not the policy of the law to assist the minor in his fraudulent purposes, but only to protect him from the impositions of those skilled in wicked devices. There are some contracts which an infant can not disclaim, viz.: such as are for necessaries. It is something of a question to determine what are necessaries; but the minor’s fortune and social position must be the guide, for where sufficient food and clothes might be all that would be termed necessaries for one, for another by fortune more favored, “equipage, dress and entertainments” would be considered just as essential.

UNSOUND MIND.—Insanity, or a mind deranged; idiocy, or the lack of a mind; intoxication, or a mind so beclouded as to be incapable of understandingly judging of the merits of an ordinary business transaction; a mind in any one of these conditions is unsound, and its possessor an incompetent.

Coverture, or marriage, by the common law made woman an incompetent party, and she was thus precluded from legally contracting. By statutory enactments nearly all of the states have changed this, so that a married woman may now do business, contract debts as though unmarried, and also hold property in her own right. The ancient barbarous theory that marriage ought to annul a woman’s right to property in her own name and almost deny her individual existence is nearly a relic, an error almost of the past.

CONSIDERATION.—Any consideration is sufficient to sustain a contract, provided it be not illegal, or that which is prohibited by law; immoral, or that which contravenes the moral law; and provided the contract was born of good faith, and not tainted by fraud. A contract into which any element of fraud has entered receives no countenance at the law. However favorable stipulations may seem, a fraudulent intent, proved, will nullify the contract.

THE SUBJECT MATTER, or that concerning which the contract is made must not be illegal, immoral or impossible. The reasons for this are apparent, since it would controvert the very object of legal rights and public policy if an illegal or immoral undertaking were permitted to enter into a contract as a thing to be done and as a recognized right to be enforced; or, if a stipulation were permitted to stand, which called for the doing of that which is impossible.

Mutual assent is an essential element. “It takes two to make a trade.” There must be an agreement of minds between contracting parties as to what is to be done, and how, and in consideration of what; and this agreement must be at the same time, or to state it in a legal fashion, “minds must meet.”

The time stated for the performance of a contract should be agreed upon. In case it is not, then it must be accomplished within a reasonable time.

What is a reasonable time must be determined by the special circumstances of each individual case. It is with this as with other elements of a contract if not fully understood and agreed upon, the assistance of customs and usages must be invoked to settle the disputed point.

STATUTE OF FRAUDS.—This is an old English statute, adopted, slightly modified, by the several states. It requires the following contracts to be in writing: For the conveyance of real estate; lease of land for more than one year; in consideration of marriage; to answer for the debt, default or wrongful act of another; not to be performed within one year; for the sale of personal property of a certain value (by most states placed at fifty dollars), unless the sale be by auction, or part of the purchase money be paid, or part of the goods delivered at the time of sale.

* * * * *

It is well that every man should be in a state of moral union with others; he must have one or more men to whom he can communicate the inmost feelings of his being, heart, and the reasons of his conduct; there should be nothing in him which is not known to some one else. That is the true meaning of the divine saying, “It is not good that man should be alone.”—_Schleiermacher._

READINGS IN ART.

GREEK ARCHITECTURE.

Greek architecture seems to have emerged from a state of archaic simplicity in the sixth century before the Christian era. All its finest creations were between that date and the death of Alexander the Great in 333 B. C.

In the days of their greatest refinement the Greeks sought rather to adorn their country than their homes. If there were palatial residences, they were more perishable, and have decayed or been destroyed, leaving few remains to tell of their former grandeur. We know their architecture almost exclusively from the ruins of their public buildings, and mostly from temples and mausoleums. The Greek temple was peculiar, and made little or no provision for a congregation of worshipers. The design was largely for external effect. A comparatively small room or cell received the image of the divinity, and another room behind it seems to have served as a treasury for votive offerings. But there were no surrounding chambers, halls or court yards. The temple, though within some precinct, was accessible to all, and, being open to the sun and air, invited the admiration of the passer-by. Its most telling features and best sculpture were on the exterior. The columns and the superstructure which rested on them must have played a very important part in their temple architecture.

There were in Greece three distinct manners, differing mostly in the manner in which the column was treated. These are called “orders;” and are named Doric, Ionic and Corinthian. Each of these presents a different series of proportions, mouldings and ornamentations in the column used, though the main form of the structure is the same in all. The column and its entablature being the most prominent features of the building, have come to be regarded as the index or characteristic, from an inspection of which the order can be recognized, just as a botanist recognizes plants by their flowers.

From a study of the column all the principal characteristics of the different orders are ascertained. The column belonging to any order is, of course, always accompanied by the use throughout the building of the appropriate proportions, mouldings and ornaments belonging to that order.

The Doric temple at Corinth is attributed to the seventh century B. C. This was a massive structure, with short, stumpy columns, and strong mouldings, but presenting the main features of the Doric style in its earliest, rudest form. The most complete Greek Doric temple was the Parthenon—the work of the architect Ictinus. It is selected for our purpose of illustration, because on many accounts the best, and many of our readers have seen the plate representing it. The Parthenon stood on the summit of a lofty rock, within an irregularly shaped enclosure, entered through a noble gateway. The temple itself was of perfectly regular plan, and stood quite free from all dependencies of any sort. It consisted of the _cella_, or sacred cell, in which stood the statue of the goddess, and behind it the treasury chamber. In both these there were symmetrical columns. A series of columns surrounded the building, and at either end was a portico eight columns wide and two deep. There were two pediments of flat pitch, one at each end. The whole rested on a basement of steps. The building, exclusive of the steps, was 228 feet long by 101 feet wide, and 64 feet high. The columns were 34 feet 3 inches high, and more than 6 feet in diameter at the base. The marble of which this temple was constructed was of the most solid and durable kind, and the workmanship in all the parts that remain shows great skill and care in the execution. The roof was probably of timbers covered with marble tiles; but all traces of the frame work have entirely disappeared, and hence the mode of construction is not known. Nor do authorities agree as to what provision was made for the admission of light. It seems probable that something like the clere-story of a Gothic church was used to light the Parthenon.

This wonderful structure was Doric, and the leading proportions were as follows: The column was 5.56 diameters high. The whole height, including the stylobate or steps, might be divided into nine parts, of which two go to the stylobate, six to the column, and one to the entablature.

The Greek Doric order is without a base; the shaft of the column springs from the top step, and is tapering, not in a straight line, but with a subtle curve, known technically as the entasis of the column. This shaft is channeled usually with twenty shallow channels, the ridges separating one from another being very fine lines.

The Parthenon, like many, if not all Greek buildings, was profusely decorated with colored ornaments, of which nearly every trace has now disappeared, but which must have contributed largely to the beauty of the building as a whole, and must have emphasized and set off its parts.

The most famous Greek building in the Ionic style was the temple of Diana, at Ephesus. This magnificent temple was almost totally destroyed, and the very site was, for centuries, unknown, till the energy and sagacity of an English architect enabled him to discover and dig out the vestiges of the building. Fortunately sufficient traces of the foundation remained to render it possible to make out the plan of the temple completely. From the fragments he was able to restore on paper the general appearance of the famous temple, which must be very nearly, if not absolutely correct. The walls of this temple were entirely surrounded by a double series of columns with a pediment at each end. The whole was of marble and based on a spacious platform of steps.

The Corinthian order, the last to make its appearance, was almost as much Roman as Greek. It resembles the Ionic, but the capitals are different, the columns more slender, and the enrichments more florid.

The plan or floor disposition of a Greek building, always simple, was well arranged for effect, and capable of being understood at once. All confusion, uncertainty or complications were scrupulously avoided. Refined precision, order, symmetry and exactness mark the plan as well as every part of the work.

The construction of the walls of Greek temples rivaled that of the Egyptians in accuracy and beauty of workmanship; though the wall was evidently not the principal thing for effect with the Greek architect, as much of it was overshadowed by lines of columns, which form the main feature of the building.

The Corinthian order is the natural sequel to the Ionic. Had Greek architecture continued till it fell into decadence, this order would have been its badge. As it was, the decadence of Greek art was Roman art, and the Corinthian order was the favorite order of the Romans.

ETRUSCAN AND ROMAN ARCHITECTURE.

The Etruscans, at an early day, inhabited the west coast of Italy, between the rivers Arno and Tiber. At the time of the founding of Rome as a city, they were a civilized people and showed considerable architectural skill, and their arts had a very great influence on Roman art. The remains of several Etruscan towns show that their masonry was of what has been called a Cyclopean character—that is, the stones were of an enormous size. The massive blocks being fitted together with consummate accuracy, much of the masonry endures to the present day. The temples, palaces and dwelling houses which made up the cities so fortified, have all disappeared, and the only structural remains of Etruscan art are tombs—some cut in live rock, and some detached structures. These built of heavy stones and arched securely, still exist as monuments of the science and skill of those early builders. They were acquainted with and extensively used the true radiating arch, composed of wedge-shaped stones. From them the Romans learned to construct arches, and combined the arch with the trabeated or lintel mode which they copied from the Greeks. Hence arose a style distinctively Roman.

The largest Etruscan temple of which any record remains was that of Jupiter Capitolinus, at Rome, one of the most splendid temples of antiquity.

The last of the classical styles of antiquity is the Roman. This seems rather an amalgamation of several other styles than an original, independent creation. It was formed slowly, and is harmonious, though uniting elements widely dissimilar.

The Grecian artist was imaginative and idealistic in the highest degree. He seemed to have an innate genius for art and beauty, and was eager to perpetuate in marble his brightest conceptions of excellence. The stern, practical Roman, realistic in every pore, eager for conquest, was dominated by the idea of bringing all nations under his sway, and of making his city the capital of the world. At first he looked with disdain on the fine arts, in all their forms, and regarded a love for the beautiful, whether in literature or art, as an evidence of effeminacy.

For nearly five hundred years there was very little architectural taste displayed in the buildings at Rome. All public works, as the Appian Way, bridges and aqueducts bore the utilitarian stamp. Their best buildings were of brick or the local stone, and there is little evidence that architecture was studied as a fine art until about 150 B. C.

After the fall of Carthage, and the destruction of Corinth, when Greece became a Roman province—both which events occurred in the year 146 B. C.—Rome became desirous of emulating the older civilization which she had destroyed. She had, by her conquests, immense wealth, and expended much, both privately and publicly, in erecting monuments, many of which, more or less altered, remain to the present day.

The first marble temple in Rome was built by the consul Q. Metellus Macedonicus, who died 115 B. C. From that period Roman architecture showed a wonderful diversity in the objects to which it was applied. Not only tombs, temples, and palaces, but baths, theaters, and amphitheaters, basilicas, aqueducts and triumphal arches were planned and built as elaborately as the temples of the gods.

Under the emperors the architectural display reached its full magnificence. The boast of Augustus, that he found Rome of brick, and left her of marble, expresses in a few words the great feature of his reign, and of that of several of the succeeding emperors.

Though the most destructive of all agencies—hostile invasions, conflagrations, and long ages of neglect—have done their utmost to destroy all vestiges of Imperial Rome, there still remain relics enough to make the city of the Cæsars, after Athens, the richest store of classical architectural antiquities in the world.

BUILDINGS OF THE ROMANS.

The temples in Rome were not, as in Greece and Egypt, the structures on which the architect lavished all the resources of his art and his science. They were, in a general way, copies of Greek originals, and did not equal the models after which they were fashioned, nor greatly honor the metropolis of the world. Few remains of them exist. The Church of Santa Maria Ezizica was once a heathen temple, and after some necessary changes, used for Christian worship. This was tetrastyle, with half columns around it, and of the kind called by Vitruvius pseudo-peripteral. A few fragmentary remains of other temples are found in Rome, but there are much finer specimens in some of the provinces. The best is the Maison Carrée at Nêmes. This was probably erected during the reign of Hadrian. There is a portico in front, while the sides and rear have columns attached. The details of the capitals and entablature are almost pure Greek.

At Baalbec, the ancient Heliopolis in Syria, not far from Damascus, are the ruins of another magnificent, provincial Roman temple. It was built in the time of the Antonines, and must have been of very extensive dimensions. At the western end of an immense court, on an artificial elevation, stand the remains of what is called the Great Temple. This was 290 feet long by 160 feet wide, and had 54 columns supporting its roof, only six of which now remain erect. Their height, including base and capital, is 75 feet, and their diameter at the base 7 feet. They are of the Corinthian order, and above them rises an elaborately moulded entablature, 14 feet in height. The most striking feature of these buildings is the colossal size of the stones used in their construction.

Among the most remarkable public buildings, whether in the mother city, or in the provinces, were the Basilicas, or halls of justice, used also as commercial exchanges. These were generally oblong, covered halls, divided into three or five aisles by rows of columns. At one end was a semi-circular recess, the floor of which was raised considerably above the level of the rest of the floor, and here the presiding magistrate had his seat.

Although the Romans were not particularly interested in dramatic representations, they were passionately fond of shows and games of all kinds. Hence they built many theatres and amphitheatres in all their cities and large towns. The most stupendous fabric of the kind that was ever erected was the Flavian amphitheater or Colosseum, whose ruins attest its pristine magnificence.

“Arches on arches, as if it were that Rome, collecting the chief trophies of her line, would build up all the triumphs in one dome.” It was oblong, 620 feet in length, and 513 feet wide. It was favorably situated between the Esquiline and the Cœlian hills, and admirably planned for the convenience of the vast audiences, estimated at from 50,000 to 80,000. Recent excavations have revealed the communications that existed between the arena and the dens, where the wild animals, slaves, and prisoners were confined. The external façade is composed of four stories, separated by entablatures that run completely round the building, without a break. The three lower stories consist of a series of semi-circular arched openings, eighty in number, separated by piers with attached columns in front of them, the Doric order being used in the lowest story, the Ionic in the second, and the Corinthian in the third.

From these meager facts the reader must imagine the magnificence and grandeur of the Colosseum, or seek for fuller information in works of ancient art. Nothing can give us a more impressive idea of the grandeur and lavish display of Imperial Rome, than the remains of the huge Thermæ or bathing establishments. These belong mostly to the Christian era.

Agrippa built the first, A. D. 10, and thence to 324 A. D., no less than twelve of these vast establishments were erected by different emperors, including Constantine, and bequeathed to the people. The baths of Caracalla and Diocletian are the only ones that remain in any state of preservation, and were probably the finest and most extensive of them all.

There is one ancient building in Rome more impressive than any other—not only because of its better state of preservation, but because of the dignity with which it was designed, the perfection of execution, and the effectiveness of the mode in which the interior is lighted—the Pantheon. It is the finest example of a domed hall that is left. It has the circular form with a diameter of 145 feet, and a height to the top of the dome of 147 feet. The magnificent dome is enriched with boldly recessed panels, and these covered with bronze ornaments.

The domestic architecture of the Romans at an early day was rich, but few traces of it remain. The buildings were of two kinds; the _insula_, or block of buildings, containing a number of buildings, and the _domus_, or detached mansion.

Their buildings, in the first centuries rude, came, in time, to have a very decided architectural character. We gather from them that daring, energy, readiness, structural skill, and a not too fastidious taste were characteristics of Roman architects and their works.

BYZANTINE ARCHITECTURE.

Constantine the Great, who had encouraged the erection of houses of Christian worship in Rome and other parts of Italy, exerted a marked influence on architecture when he removed the seat of empire from Rome to Byzantium, and called the new capital Constantinople. He rebuilt the city that was almost in ruins, though not deserted. The people were largely of the Greek race, and had Greek ideas of architecture. Hence a new development of the church building differing somewhat from the style of the basilicas soon showed itself.

In Byzantium buildings of most original design sprang up, founded, it is true, on Roman originals, but by no means exact copies of them. The most difficult problems of construction, particularly of roofs, were successfully met and solved.

What course the art ran during the two centuries between the refounding of Byzantium and the building of Santa Sophia, we can only infer from its outcome. But it is certain that to attain the power of designing and erecting so great a work as Santa Sophia, the architects of Constantinople must have greatly modified and improved the Roman practice of building vaults and domes.