FOOTNOTE:

[1] See Springbok case, 1866, 5 Wallace I.; on _Doelwijk_ case see

Brusa, _Rev. gen. de droit international public_ (1897); Fauchille

_id._ (1897), p. 291, also _The Times_, April 15, May 25, June 1,

1897.

CONTRACT (Lat. _contractus_, from _contrahere_, to draw together, to

bind), the legal term for a bargain or agreement; some writers,

following the Indian Contract Act, confine the term to agreements

enforceable by law: this, though not yet universally adopted, seems an

improvement. Enforcement of good faith in matters of bargain and promise

is among the most important functions of legal justice. It might not be

too much to say that, next after keeping the peace and securing property

against violence and fraud so that business may be possible, it is the

most important. Yet we shall find that the importance of contract is

developed comparatively late in the history of law. The commonwealth

needs elaborate rules about contracts only when it is advanced enough in

civilization and trade to have an elaborate system of credit. The Roman

law of the empire dealt with contract, indeed, in a fairly adequate

manner, though it never had a complete or uniform theory; and the Roman

law, as settled by Justinian, appears to have satisfied the Eastern

empire long after the Western nations had begun to recast their

institutions, and the traders of the Mediterranean had struck out a

cosmopolitan body of rules and custom known as the Law Merchant, which

claimed acceptance in the name neither of Justinian nor of the Church,

but of universal reason. It was amply proved afterwards that the

foundations of the Roman system were strong enough to carry the fabric

of modern legislation. But the collapse of the Roman power in western

Christendom threw society back into chaos, and reduced men's ideas of

ordered justice and law to a condition compared with which the earliest

Roman law known to us is modern.

In this condition of legal ideas, which it would be absurd to call

jurisprudence, the general duty of keeping faith is not recognized

except as a matter of religious or social observance. Those who desire

to be assured of anything that lies in promise must exact an oath, or a

pledge, or personal sureties; and even then the court of their

people--in England the Hundred Court in the first instance--will do

nothing for them in the first case, and not much in the two latter.

Probably the settlement of a blood-feud, with provisions for the payment

of the fine by instalments, was the nearest approach to a continuing

contract, as we now understand the term, which the experience of

Germanic antiquity could furnish. It is also probable that the

performance of such undertakings, as it concerned the general peace, was

at an early time regarded as material to the commonweal; and that these

covenants of peace, rather than the rudimentary selling and bartering of

their day, first caused our Germanic ancestors to realize the importance

of putting some promises at any rate under public sanction. We have not

now to attempt any reconstruction of archaic judgment and justice, or

the lack of either, at any period of the darkness and twilight which

precede the history of the middle ages. But the history of the law, and

even the present form of much law still common to almost all the

English-speaking world, can be understood only when we bear in mind that

our forefathers did not start from any general conception of the state's

duty to enforce private agreements, but, on the contrary, the state's

powers and functions in this regard were extended gradually,

unsystematically, and by shifts and devices of ingenious suitors and

counsel, aided by judges, rather than by any direct provisions of

princes and rulers. Money debts, it is true, were recoverable from an

early time. But this was not because the debtor had promised to repay

the loan; it was because the money was deemed still to belong to the

creditor, as if the identical coins were merely in the debtor's custody.

The creditor sued to recover money, for centuries after the Norman

Conquest, in exactly the same form which he would have used to demand

possession of land; the action of debt closely resembled the "real

actions," and, like them, might be finally determined by a judicial

combat; and down to Blackstone's time the creditor was said to have a

property in the debt--property which the debtor had "granted" him.

Giving credit, in this way of thinking, is not reliance on the right to

call hereafter for an act, the payment of so much current money or its

equivalent, to be performed by the debtor, but merely suspension of the

immediate right to possess one's own particular money, as the owner of a

house let for a term suspends his right to occupy it. This was no road

to the modern doctrine of contract, and the passage had to be made

another way.

Action for debt.

In fact the old action of debt covered part of the ground of contract

only by accident. It was really an action to recover any property that

was not land; for the remedy of a dispossessed owner of chattels,

afterwards known as detinue, was only a slightly varying form of it. If

the property claimed was a certain sum of money, it might be due because

the defendant had received money on loan, or because he had received

goods of which the agreed price remained unpaid; or, in later times at

any rate, because he had become liable in some way by judgment, statute

or other authority of law, to pay a fine or fixed penalty to the

plaintiff. Here the person recovering might be as considerable as the

lord of a manor, or as mean as a "common informer"; the principle was

the same. In every case outside this last class, that is to say,

whenever there was a debt in the popular sense of the word, it had to be

shown that the defendant had actually received the money or goods; this

value received came to be called _quid pro quo_--a term unknown, to all

appearance, out of England. Nevertheless the foundation of the

plaintiff's right was not bargain or promise, but the unjust detention

by the defendant of the plaintiff's money or goods.

Modes of proof.

We are not concerned here to trace the change from the ancient method of

proof--oath backed by "good suit," _i.e._ the oaths of an adequate

number of friends and neighbours--through the earlier form of jury

trial, in which the jury were supposed to know the truth of their own

knowledge, to the modern establishment of facts by testimony brought

before a jury who are bound to give their verdict according to the

evidence. But there was one mode of proof which, after the Norman

Conquest, made a material addition to the substantive law. This was the

proof by writing, which means writing authenticated by seal. Proof by

writing was admitted under Roman influence, but, once admitted, it

acquired the character of being conclusive which belonged to all proof

in early Germanic procedure. Oath, ordeal and battle were all final in

their results. When the process was started there was no room for

discussion. So the sealed writing was final too, and a man could not

deny his own deed. We still say that he cannot, but with modern

refinements. Thus the deed, being allowed as a solemn and probative

document, furnished a means by which a man could bind himself, or rather

effectually declare himself bound, to anything not positively forbidden

by law. Whoever could afford parchment and the services of a clerk might

have the benefit of a "formal contract" in the Roman sense of the term.

At this day the form of deed called a bond or "obligation" is, as it

stands settled after various experiments, extremely artificial; but it

is essentially a solemn admission of liability, though its conclusive

stringency has been relaxed by modern legislation and practice in the

interest of substantial justice. By this means the performance of all

sorts of undertakings, pecuniary and otherwise, could be and was legally

secured. Bonds were well known in the 13th century, and from the 14th

century onwards were freely used for commercial and other purposes; as

for certain limited purposes they still are. The "covenant" of modern

draftsmen is a direct promise made by deed; it occurs mainly as incident

to conveyances of land. The medieval "covenant," _conventio_, was, when

we first hear of it, practically equivalent to a lease, and never became

a common instrument of miscellaneous contracting, though the old books

recognize the possibility of turning it to various uses of which there

are examples; nor had it any sensible influence on the later development

of the law. On the whole, in the old common law one could do a great

deal by deed, but very little without deed. The minor bargains of daily

life, so far as they involved mutual credit, were left to the

jurisdiction of inferior courts, of the Law Merchant, and--last, not

least--of the Church.

Fidel laesio.

Popular custom, in all European countries, recognized simpler ways of

pledging faith than parchment and seal. A handshake was enough to bind a

bargain. Whatever secular law might say, the Church said it was an open

sin to break plighted faith; a matter, therefore, for spiritual

correction, in other words, for compulsion exercised on the defaulter by

the bishop's or the archdeacon's court, armed with the power of

excommunication. In this way the ecclesiastical courts acquired much

business which was, in fact, as secular as that of a modern county

court, with the incident profits. Medieval courts lived by the suitors'

fees. What were the king's judges to do? However high they put their

claims in the course of the rivalry between Church and Crown, they could

not effectually prohibit the bishop or his official from dealing with

matters for which the king's court provided no remedy. Continental

jurists had seen their way, starting from the Roman system as it was

left by Justinian, to reduce its formalities to a vanishing quantity,

and expand their jurisdiction to the full breadth of current usage.

English judges could not do this in the 15th century, if they could ever

have done so. Nor would simplification of the requisites of a deed, such

as has now been introduced in many jurisdictions, have been of much use

at a time when only a minority even of well-to-do laymen could write

with any facility.

There was no principle and no form of action in English law which

recognized any general duty of keeping promises. But could not breach of

faith by which a party had suffered be treated as some kind of legal

wrong? There was a known action of trespass and a known action of

deceit, this last of a special kind, mostly for what would now be called

abuse of the process of the court; but in the later middle ages it was

an admitted remedy for giving a false warranty on a sale of goods. Also

there was room for actions "on the case," on facts analogous to those

covered by the old writs, though not precisely within their terms. If

the king's judges were to capture this important branch of business from

the clerical hands which threatened to engross it, the only way was to

devise some new form of action on the case. There were signs, moreover,

that the court of chancery would not neglect so promising a field if the

common law judges left it open.

Assumpsit.

The mere fact of unfulfilled promise was not enough, in the eyes of

medieval English lawyers, to give a handle to the law. But injury caused

by reliance on another man's undertaking was different. The special

undertaking or "assumption" creates a duty which is broken by fraudulent

or incompetent miscarriage in the performance. I profess to be a skilled

farrier, and lame your horse. It is no trespass, because you trusted the

horse to me; but it is something like a trespass, and very like a

deceit. I profess to be a competent builder; you employ me to build a

house, and I scamp the work so that the house is not fit to live in. An

action on the case was allowed without much difficulty for such

defaults. The next step, and a long one, was to provide for total

failure to perform. The builder, instead of doing bad work, does nothing

at all within the time agreed upon for completing the house. Can it be

said that he has done a wrong? At first the judges felt bound to hold

that this was going too far; but suitors anxious to have the benefit of

the king's justice persevered, and in the course of the 15th century the

new form of action, called _assumpsit_ from the statement of the

defendant's undertaking on which it was founded, was allowed as a remedy

for non-performance as well as for faulty performance. Being an action

for damages, and not for a certain amount, it escaped the strict rules

of proof which applied to the old action of debt; being in form for a

kind of trespass, and thus a privileged appeal to the king to do right

for a breach of his peace, it escaped likewise the risk of the defendant

clearing himself by oath according to the ancient popular procedure.

Hence, as time went on, suitors were emboldened to use "assumpsit" as an

alternative for debt, though it had been introduced only for cases where

there was no other remedy. By the end of the 16th century they got their

way; and it became a settled doctrine that the existence of a debt was

enough for the court to presume an undertaking to pay it. The new form

of action was made to cover the whole ground of informal contracts, and,

by extremely ingenious devices of pleading, developed from the

presumption or fiction that a man had promised to pay what he ought, it

was extended in time to a great variety of cases where there was in fact

no contract at all.

Consideration.

The new system gave no new force to gratuitous promises. For it was

assumed, as the foundation of the jurisdiction, that the plaintiff had

been induced by the defendant's undertaking, and with the defendant's

consent, to alter his position for the worse in some way. He had paid or

bound himself to pay money, he had parted with goods, he had spent time

in labour, or he had foregone some profit or legal right. If he had not

committed himself to anything on the strength of the defendant's

promise, he had suffered no damage and had no cause of action.

Disappointment of expectations is unpleasant, but it is not of itself

_damnum_ in a legal sense. To sum up the effect of this in modern

language, the plaintiff must have given value of some kind, more or

less, for the defendant's undertaking. This something given by the

promisee and accepted by the promisor in return for his undertaking is

what we now call the _consideration_ for the promise. In cases where

debt would also lie, it coincides with the old requirement of value

received (_quid pro quo_) as a condition of the action of debt being

available. But the conception is far wider, for the consideration for a

promise need not be anything capable of delivery or possession. It may

be money or goods; but it may also be an act or series of acts; further

(and this is of the first importance for our modern law), it may itself

be a promise to pay money or deliver goods, or to do work, or otherwise

to act or not to act in some specified way. Again, it need not be

anything which is obviously for the promisor's benefit. His acceptance

shows that he set some value on it; but in truth the promisee's burden,

and not the promisor's benefit, is material. The last refinement of

holding that, when mutual promises are exchanged between parties, each

promise is a consideration for the other and makes it binding, was

conclusively accepted only in the 17th century. The result was that

promises of mere bounty could no more be enforced than before, but any

kind of lawful bargain could; and there is no reason to doubt that this

was in substance what most men wanted. Ancient popular usage and feeling

show little more encouragement than ancient law itself to merely

gratuitous alienation or obligations. Also (subject, till quite modern

times, to the general rule of common-law procedure that parties could

not be their own witnesses, and subject to various modern statutory

requirements in various classes of cases) no particular kind of proof

was necessary. The necessity of consideration for the validity of simple

contracts was unfortunately confused by commentators, almost from the

beginning of its history, with the perfectly different rules of the

Roman law about _nudum pactum_, which very few English lawyers took the

pains to understand. Hasty comparison of misunderstood Roman law,

sometimes in its civil and sometimes in its ecclesiastical form, is

answerable for a large proportion of the worst faults in old-fashioned

text-books. Doubtless many canonists, probably some common lawyers, and

possibly some of the judges of the Renaissance time, supposed that _ex

nudo pacio non oritur actio_ was in some way a proposition of universal

reason; but it is a long way from this to concluding that the Roman law

had any substantial influence on the English.

The doctrine of consideration is in fact peculiar to those jurisdictions

where the common law of England is in force, or is the foundation of the

received law, or, as in South Africa, has made large encroachments upon

it in practice. Substantially similar results are obtained in other

modern systems by professing to enforce all deliberate promises, but

imposing stricter conditions of proof where the promise is gratuitous.

Deeds.

As obligations embodied in the solemn form of a deed were thereby made

enforceable before the doctrine of consideration was known, so they

still remain. When a man has by deed declared himself bound, there is no

need to look for any bargain, or even to ask whether the other party has

assented. This rugged fragment of ancient law remains embedded in our

elaborate modern structure. Nevertheless gratuitous promises, even by

deed, get only their strict and bare rights. There may be an action upon

them, but the powerful remedy of specific performance--often the only

one worth having--is denied them. For this is derived from the

extraordinary jurisdiction of the chancellor, and the equity

administered by the chancellor was not for plaintiffs who could not show

substantial merit as well as legal claims. The singular position of

promises made by deed is best left out of account in considering the

general doctrine of the formation of contracts; and as to interpretation

there is no difference. In what follows, therefore, it will be needless,

as a rule, to distinguish between "parol" or "simple" contracts, that

is, contracts not made by deed, and obligations undertaken by deed.

Promise and offer.

From the conception of a promise being valid only when given in return

for something accepted in consideration of the promise, it follows that

the giving of the promise and of the consideration must be simultaneous.

Words of promise uttered before there is a consideration for them can be

no more than an offer; and, on the other hand, the obligation declared

in words, or inferred from acts and conduct, on the acceptance of a

consideration, is fixed at that time, and cannot be varied by subsequent

declaration, though such declarations may be material as admissions. It

was a long while, however, before this consequence was clearly

perceived. In the 18th century it was attempted, and for a time with

considerable success, to extend the range of enforceable promises

without regard to what the principles of the law would bear, in order to

satisfy a sense of natural justice. This movement was checked only

within living memory, and traces of it remain in certain apparently

anomalous rules which are indeed of little practical importance, but

which private writers, at any rate, cannot safely treat as obsolete.

However, the question of "past consideration" is too minute and

technical to be pursued here. The general result is that a binding

contract is regularly constituted by the acceptance of an offer, and at

the moment when it is accepted; and, however complicated the transaction

may be, there must always, in the theory of English law, be such a

moment in every case where a contract is formed. It also follows that

an offer before acceptance creates no duty of any kind ("A revocable

promise is unknown to our law"--Anson); which is by no means necessarily

the case in systems where the English rule of consideration is unknown.

The question what amounts to final acceptance of an offer is, on the

other hand, a question ultimately depending on common sense, and must be

treated on similar lines in all civilized countries where the business

of life is carried on in a generally similar way. The rules that an

offer is understood to be made only for a reasonable time, according to

the nature of the case, and lapses if not accepted in due time; that an

expressed revocation of an offer can take effect only if communicated to

the other party before he has accepted; that acceptance of an offer must

be according to its terms, and a conditional or qualified acceptance is

only a new proposal, and the like, may be regarded as standing on

general convenience as much as on any technical ground.

Correspondence.

Great difficulties have arisen, and in other systems as well as in the

English, as to the completion of contracts between persons at a

distance. There must be some rule, and yet any rule that can be framed

must seem arbitrary in some cases. On the whole the modern doctrine is

to some such effect as the following:--

The proposer of a contract can prescribe or authorize any mode, or at

least any reasonable mode, of acceptance, and if he specifies none he is

deemed to authorize the use of any reasonable mode in common use, and

especially the post. Acceptance in words is not always required; an

offer may be well accepted by an act clearly referable to the proposed

agreement, and constituting the whole or part of the performance asked

for--say the despatch of goods in answer to an order by post, or the

doing of work bespoken; and it seems that in such cases further

communication--unless expressly requested--is not necessary as matter of

law, however prudent and desirable it may be. Where a promise and not an

act is sought (as where a tradesman writes a letter offering goods for

sale on credit), it must be communicated; in the absence of special

direction letter post or telegraph may be used; and, further, the

acceptor having done his part when his answer is committed to the post.

English courts now hold (after much discussion and doubt) that any delay

or miscarriage in course of post is at the proposer's risk, so that a

man may be bound by an acceptance he never received. It is generally

thought--though there is no English decision--that, in conformity with

this last rule, a revocation by telegraph of an acceptance already

posted would be inoperative. Much more elaborate rules are laid down in

some continental codes. It seems doubtful whether their complication

achieves any gain of substantial justice worth the price. At first sight

it looks easy to solve some of the difficulties by admitting an interval

during which one party is bound and the other not. But, apart from the

risk of starting fresh problems as hard as the old ones, English

principles, as above said, require a contract to be concluded between

the parties at one point of time, and any exception to this would have

to be justified by very strong grounds of expediency. We have already

assumed, but it should be specifically stated, that neither offers nor

acceptances are confined to communications made in spoken or written

words. Acts or signs may and constantly do signify proposal and assent.

One does not in terms request a ferryman to put one across the river.

Stepping into the boat is an offer to pay the usual fare for being

ferried over, and the ferryman accepts it by putting off. This is a very

simple case, but the principle is the same in all cases. Acts fitted to

convey to a reasonable man the proposal of an agreement, or the

acceptance of a proposal he has made, are as good in law as equivalent

express words. The term "implied contract" is current in this connexion,

but it is unfortunately ambiguous. It sometimes means a contract

concluded by acts, not words, of one or both parties, but still a real

agreement; sometimes an obligation imposed by law where there is not any

agreement in fact, for which the name "quasi-contract" is more

appropriate and now usual.

Interpretation.

The obligation of contract is an obligation created and determined by

the will of the parties. Herein is the characteristic difference of

contract from all other branches of law. The business of the law,

therefore, is to give effect so far as possible to the intention of the

parties, and all the rules for interpreting contracts go back to this

fundamental principle and are controlled by it. Every one knows that its

application is not always obvious. Parties often express themselves

obscurely; still oftener they leave large parts of their intention

unexpressed, or (which for the law is the same thing) have not formed

any intention at all as to what is to be done in certain events. But

even where the law has to fill up gaps by judicial conjecture, the

guiding principle still is, or ought to be, the consideration of what

either party has given the other reasonable cause to expect of him. The

court aims not at imposing terms on the parties, but at fixing the terms

left blank as the parties would or reasonably might have fixed them if

all the possibilities had been clearly before their minds. For this

purpose resort must be had to various tests: the court may look to the

analogy of what the parties have expressly provided in case of other

specified events, to the constant or general usage of persons engaged in

like business, and, at need, ultimately to the court's own sense of what

is just and expedient. All auxiliary rules of this kind are subject to

the actual will of the parties, and are applied only for want of

sufficient declaration of it by the parties themselves. A rule which can

take effect against the judicially known will of the parties is not a

rule of construction or interpretation, but a positive rule of law.

However artificial some rules of construction may seem, this test will

always hold. In modern times the courts have avoided laying down new

rules of construction, preferring to keep a free hand and deal with each

case on its merits as a whole. It should be observed that the fulfilment

of a contract may create a relation between the parties which, once

established, is governed by fixed rules of law not variable by the

preceding agreement. Marriage is the most conspicuous example of this,

and perhaps the only complete one in our modern law.

Evidence.

There are certain rules of evidence which to some extent guide or

restrain interpretation. In particular, oral testimony is not allowed to

vary the terms of an agreement reduced to writing. This is really in aid

of the parties' deliberate intention, for the object of reducing terms

to writing is to make them certain. There are apparent exceptions to the

rule, of which the most conspicuous is the admission of evidence to show

that words were used in a special meaning current in the place or trade

in question. But they are reducible, it will be found, to applications

(perhaps over-subtle in some cases) of the still more general principles

that, before giving legal force to a document, we must know that it is

really what it purports to be, and that when we do give effect to it

according to its terms we must be sure of what its terms really say. The

rules of evidence here spoken of are modern, and have nothing to do with

the archaic rule already mentioned as to the effect of a deed.

Performance.

Every contracting party is bound to perform his promise according to its

terms, and in case of any doubt in the sense in which the other party

would reasonably understand the promise. Where the performance on one or

both sides extends over an appreciable time, continuously or by

instalments, questions may arise as to the right of either party to

refuse or suspend further performance on the ground of some default on

the other side. Attempts to lay down hard and fast rules on such

questions are now discouraged, the aim of the courts being to give

effect to the true substance and intent of the contract in every case.

Nor will the court hold one part of the terms deliberately agreed to

more or less material than another in modern business dealings. "In the

contracts of merchants time is of the essence," as the Supreme Court of

the United States has said in our own day. Certain ancient rules

restraining the apparent literal effect of common provisions in

mortgages and other instruments were in truth controlling rules of

policy. New rules of this kind can be made only by legislation. Whether

the parties did or did not in fact intend the obligation of a contract

to be subject to unexpressed conditions is, however, a possible and not

uncommon question of interpretation. One class of cases giving rise to

such questions is that in which performance becomes impossible by some

external cause not due to the promisor's own fault; a similar but not

identical one is that in which the agreement could be literally

performed, and yet the performance would not give the promisor the

substance of what he bargained for; as happened in the "coronation

cases" arising out of the postponement of the king's coronation in 1902.

As to promises obviously absurd or impossible from the first, they are

unenforceable only on the ground that the parties cannot have seriously

meant to create a liability. For precisely the same reason, supported by

the general usage and understanding of mankind, common social

engagements, though they often fulfil all other requisites of a

contract, have never been treated as binding in law.

Illegality.

In all matters of contract, as we have said, the ascertained will of the

parties prevails. But this means a will both lawful and free. Hence

there are limits to the force of the general rule, fixed partly by the

law of the land, which is above individual will and interests, partly by

the need of securing good faith and justice between the parties

themselves against fraud or misadventure. Agreements cannot be enforced

when their performance would involve an offence against the law. There

may be legal offence, it must be remembered, not only in acts commonly

recognized as criminal, disloyal or immoral, but in the breach or

non-observance of positive regulations made by the legislature, or

persons having statutory authority, for a great variety of purposes. It

would be useless to give details on the subject here. Again, there are

cases where an agreement may be made and performed without offending the

law, but on grounds of "public policy" it is not thought right that the

performance should be a matter of legal obligation, even if the ordinary

conditions of an enforceable contract are satisfied. A man may bet, in

private at any rate, if he likes, and pay or receive as the event may

be; but for many years the winner has had no right of action against the

loser. Unfortunate timidity on the part of the judges, who attempted to

draw distinctions instead of saying boldly that they would not entertain

actions on wagers of any kind, threw this topic into the domain of

legislation; and the laudable desire of parliament to discourage

gambling, so far as might be, without attempting impossible

prohibitions, has brought the law to a state of ludicrous complexity in

both civil and criminal jurisdiction. But what is really important under

this doctrine of public policy is the confinement of "contracts in

restraint of trade" within special limits. In the middle ages and down

to modern times there was a strong feeling--not merely an artificial

legal doctrine--against monopolies and everything tending to monopoly.

Agreements to keep up prices or not to compete were regarded as

criminal. Gradually it was found that some kind of limited security

against competition must be allowed if such transactions as the sale of

a going concern with its goodwill, or the retirement of partners from a

continuing firm, or the employment of confidential servants in matters

involving trade secrets, were to be carried on to the satisfaction of

the parties. Attempts to lay down fixed rules in these matters were made

from time to time, but they were finally discredited by the decision of

the House of Lords in the Maxim-Nordenfelt Company's case in 1894.

Contracts "in restraint of trade" will now be held valid, provided that

they are made for valuable consideration (this even if they are made by

deed), and do not go beyond what can be thought reasonable for the

protection of the interests concerned, and are not injurious to the

public. (The Indian Contract Act, passed in 1872, has unfortunately

embodied views now obsolete, and remains unamended.) All that remains of

the old rules in England is the necessity of valuable consideration,

whatever be the form of the contract, and a strong presumption--but not

an absolute rule of law--that an unqualified agreement not to carry on a

particular business is not reasonable.

Fraud.

Where there is no reason in the nature of the contract for not

enforcing it, the consent of a contracting party may still not be

binding on him because not given with due knowledge, or, if he is in a

relation of dependence to the other party, with independent judgment.

Inducing a man by deceit to enter into a contract may always be treated

by the deceived party as a ground for avoiding his obligation, if he

does so within a reasonable time after discovering the truth, and, in

particular, before any innocent third person has acquired rights for

value on the faith of the contract (see FRAUD). Coercion would be

treated on principle in the same way as fraud, but such cases hardly

occur in modern times. There is a kind of moral domination, however,

which our courts watch with the utmost jealousy, and repress under the

name of "undue influence" when it is used to obtain pecuniary advantage.

Persons in a position of legal or practical authority--guardians,

confidential advisers, spiritual directors, and the like--must not abuse

their authority for selfish ends. They are not forbidden to take

benefits from those who depend on them or put their trust in them; but

if they do, and the givers repent of their bounty, the whole burden of

proof is on the takers to show that the gift was in the first instance

made freely and with understanding. Large voluntary gifts or beneficial

contracts, outside the limits within which natural affection and common

practice justify them, are indeed not encouraged in any system of

civilized law. Professional money lenders were formerly checked by the

usury law: since those laws were repealed in 1854, courts and juries

have shown a certain astuteness in applying the rules of law as to fraud

and undue influence--the latter with certain special features--to

transactions with needy "expectant heirs" and other improvident persons

which seem on the whole unconscionable. The Money Lenders Act of 1900

has fixed and (as finally interpreted by the House of Lords) also

sharpened these developments. In the case of both fraud and undue

influence, the person entitled to avoid a contract may, if so advised,

ratify it afterwards; and ratification, if made with full knowledge and

free judgment, is irrevocable. A contract made with a person deprived by

unsound mind or intoxication of the capacity to form a rational judgment

is on the same footing as a contract obtained by fraud, if the want of

capacity is apparent to the other party.

Misrepresentation.

There are many cases in which a statement made by one party to the other

about a material fact will enable the other to avoid the contract if he

has relied on it, and it was in fact untrue, though it may have been made

at the time with honest belief in its truth. This is so wherever,

according to the common course of business, it is one party's business to

know the facts, and the other practically must, or reasonably may, take

the facts from him. In some classes of cases even inadvertent omission to

disclose any material fact is treated as a misrepresentation. Contracts

of insurance are the most important; here the insurer very seldom has the

means of making any effective inquiry of his own. Misdescription of real

property on a sale, without fraud, may according to its importance be a

matter for compensation or for setting aside the contract. Promoters of

companies are under special duties as to good faith and disclosure which

have been worked out at great length in the modern decisions. But company

law has become so complex within the present generation that, so far from

throwing much light on larger principles, it is hardly intelligible

without some previous grasp of them. Sometimes it is said that

misrepresentation (apart from fraud) of any material fact will serve to

avoid any and every kind of contract. It is submitted that this is

certainly not the law as to the sale of goods or as to the contract to

marry, and therefore the alleged rule cannot be laid down as universal.

But it must be remembered that parties can, if they please, and not

necessarily by the express terms of the contract itself, make the

validity of their contract conditional on the existence of any matter of

fact whatever, including the correctness of any particular statement. If

they have done this, and the fact is not so, the contract has no force;

not because there has been a misrepresentation, but because the parties

agreed to be bound if the fact was so and not otherwise. It is a

question of interpretation whether in a given case there was any such

condition.

Mistake.

Mistake is said to be a ground for avoiding contracts, and there are

cases which it is practically convenient to group under this head. On

principle they seem to be mostly reducible to failure of the acceptance

to correspond with the offer, or absence of any real consideration for

the promise. In such cases, whether there be fraud or not, no contract

is ever formed, and therefore there is nothing which can be ratified--a

distinction which may have important effects. Relief against mistake is

given where parties who have really agreed, or rather their advisers,

fail to express their intention correctly. Here, if the original true

intention is fully proved--as to which the court is rightly

cautious--the faulty document can be judicially rectified.

Disability.

By the common law an infant (_i.e._ a person less than twenty-one years

old) was bound by contracts made for "necessaries," _i.e._ such

commodities as a jury holds, and the court thinks they may reasonably

hold, suitable and required for the person's condition; also by

contracts otherwise clearly for his benefit; all other contracts he

might confirm or avoid after coming of age. An extremely ill-drawn act

of 1874 absolutely deprived infants of the power of contracting loans,

contracting for the supply of goods other than necessaries, and stating

an account so as to bind themselves; it also disabled them from binding

themselves by ratification. The liability for necessaries is now

declared by legislative authority in the Sale of Goods Act 1893; the

modern doctrine is that it is in no case a true liability on contract.

There is an obligation imposed by law to pay, not the agreed price, but

a reasonable price. Practically, people who give credit to an infant do

so at their peril, except in cases of obvious urgency.

Married women were incapable by the common law of contracting in their

own names. At this day they can hold separate property and bind

themselves to the extent of that property--not personally--by contract.

The law before the Married Women's Property Acts (1882 and 1893, and

earlier acts now superseded and repealed) was a very peculiar creature

of the court of chancery; the number of cases in which it is necessary

to go back to it is of course decreasing year by year. But a married

woman can still be restrained from anticipating the income of her

separate property, and the restriction is still commonly inserted in

marriage settlements.

There is a great deal of philosophical interest about the nature and

capacities of corporations, but for modern practical purposes it may be

said that the legal powers of British corporations are directly or

indirectly determined by acts of parliament. For companies under the

Companies Acts the controlling instrument or written constitution is the

memorandum of association. Company draftsmen, taught by experience,

nowadays frame this in the most comprehensive terms. Questions of either

personal or corporate disability are less frequent than they were. In

any case they stand apart from the general principles which characterize

our law of contract.

Contract and property.

The rights created by contract are personal rights against the promisors

and their legal representatives, and therefore different in kind from

the rights of ownership and the like which are available against all the

world. Nevertheless they may be and very commonly are capable of

pecuniary estimation and estimated as part of a man's assets. Book debts

are the most obvious example. Such rights are property in the larger

sense: they are in modern law transmissible and alienable, unless the

contract is of a kind implying personal confidence, or a contrary

intention is otherwise shown. The rights created by negotiable

instruments are an important and unique species of property, being not

only exchangeable but the very staple of commercial currency. Contract

and conveyance, again, are distinct in their nature, and sharply

distinguished in the classical Roman law. But in the common law property

in goods is transferred by a complete contract of sale without any

further act, and under the French civil code and systems which have

followed it a like rule applies not only to movables but to immovables.

In English law procuring a man to break his contract is a civil wrong

against the other contracting party, subject to exceptions which are

still not clearly defined.

AUTHORITIES.--History: Ames, "The History of Assumpsit," _Harvard Law

Rev._ ii. 1, 53 (Cambridge, Mass. 1889); Pollock and Maitland,

_History of English Law_, 2nd ed., ii. 184-239 (Cambridge, 1898).

Modern: Pollock, article "Contract" in _Encyclopaedia of the Laws of

England_ (2nd ed., London, 1907), a technical summary of the modern

law; the same writer's edition of the Indian Contract Act (assisted

by D. F. Mulla, London and Bombay, 1905) restates and discusses the

principles of the common law besides commenting on the provisions of

the Act in detail. Of the text-books, Anson, _English Law of

Contract_, reached an eleventh edition in 1906; Harriman, _Law of

Contracts_ (second edition, 1901); Leake, _Principles of the Law of

Contract_ (fifth edition by Randall, 1906); Pollock, _Principles of

Contract_ (eighth edition, 1910, third American edition, Wald's

completed by Williston, New York, 1906). O. W. Holmes's (justice of

the Supreme Court of the United States) _The Common Law_ (Boston,

Mass. 1881) is illuminating on contract as on other legal topics,

though the present writer cannot accept all the learned judge's

historical conjectures. (F. PO.)

CONTRACTILE VACUOLE, in biology, a spherical space filled with liquid,

which at intervals discharges into the medium; it is found in all

fresh-water groups of Protozoa, and some marine forms, also in the naked

aquatic reproductive cells of Algae and Fungi. It is absent in states

with a distinct cell-wall to resist excessive turgescence, such as would

lead to the rupture of a naked cell, and we conclude that its chief

function is to prevent such turgescence in unprotected naked cells. It

fulfils also respiratory and renal functions, and is comparable,

physiologically, to the contractile vesicle or bladder of Rotifers and

Turbellarians. In many species it is part of a complex of canals or

spaces in the protoplasm.

See M. Hartog, British Association _Reports_, and Degen, _Botanische

Zeitung_, vol. lxiii. Abt. 1 (1905) (see also PROTOZOA; PROTOPLASM).

CONTRADICTION, PRINCIPLE OF (_principium contradictionis_), in logic,

the term applied to the second of the three primary "laws of thought."

The oldest statement of the law is that contradictory statements cannot

both at the same time be true, _e.g._ the two propositions "A is B" and

"A is not B" are mutually exclusive. A may be B at one time, and not at

another; A may be partly B and partly not B at the same time; but it is

impossible to predicate of the same thing, at the same time, and in the

same sense, the absence and the presence of the same quality. This is

the statement of the law given by Aristotle ([Greek: to gar auto

huparchein te kai me huparchein adunaton to auto kai kata to auto],

_Metaph._ [Gamma] 3, 1005 b 19). It takes no account of the truth of

either proposition; if one is true, the other is not; one of the two

must be true.

Modern logicians, following Leibnitz and Kant, have generally adopted a

different statement, by which the law assumes an essentially different

meaning. Their formula is "A is not not-A"; in other words it is

impossible to predicate of a thing a quality which is its contradictory.

Unlike Aristotle's law this law deals with the necessary relation

between subject and predicate in a single judgment. Whereas Aristotle

states that _one or other_ of two contradictory propositions must be

false, the Kantian law states that a particular kind of proposition is

_in itself_ necessarily false. On the other hand there is a real

connexion between the two laws. The denial of the statement "A is not-A"

presupposes some knowledge of what A is, _i.e._ the statement A is A. In

other words a judgment about A is implied. Kant's analytical

propositions depend on presupposed concepts which are the same for all

people. His statement, regarded as a logical principle purely and apart

from material facts, does not therefore amount to more than that of

Aristotle, which deals simply with the significance of negation.

See text-books of Logic, _e.g._ C. Sigwart's _Logic_ (trans. Helen

Dendy, London, 1895), vol. i. pp. 142 foll.; for the various

expressions of the law see Ueberweg's _Logik_, Sec. 77; also J. S. Mill,

_Examination of Hamilton_, 471; Venn, _Empirical Logic_.

CONTRAFAGOTTO, DOUBLE BASSOON or _Contrabassoon_ (Fr. _contrebasson_;

Ger. _Kontrafagott_), a wood-wind instrument of the double reed family,

which it completes as grand bass, the other members being the oboe, cor

anglais, and bassoon. The contrafagotto corresponds to the double bass

in strings, to the contrabass tuba in the brass wind, and to the pedal

clarinet in the single reed wood wind.

[Illustration: FIG. 1.--Contrafagotto, German model (Wilhelm Heckel).

From Capt. C. R. Day's _Cat. of Mus. Inst._ by permission of Fyre &

Spottiswoode.]

[Illustration: FIG. 2.--Contrafagotto, Haseneier-Morton model.]

There are at the present day three distinct makes of contrafagotto. (1)

The modern German (fig. 1) is founded on the older models, resembling

the bassoon, the best-known being Heckel's of Biebrich-am-Rhein, used at

Bayreuth and in many German orchestras. In this model the

characteristics of the bassoon are preserved, and the tone is of true

fagotto quality extended in its lower register. The Heckel contrafagotto

consists of a wooden tube 16 ft. 4 in. long with a conical bore, and

doubled back four times upon itself to make it less unwieldy. It is thus

about the same length as the bassoon and terminates in a bell 4 in. in

diameter pointing downwards. The crook consists of a small brass tube

about 2 ft. long, having a very narrow bore, to which is bound the

double-reed mouthpiece. (2) The modern English double bassoon is one

designed by Dr W. H. Stone, and made under his superintendence by

Haseneier of Coblenz. It is stated that instruments of this pattern are

less fatiguing to blow than those resembling the bassoon. The bore is

truly conical, starting with a diameter of 1/4 in. at the reed and ending

in a diameter of 4 in. at the open end of the tube which points upwards

and has no defined bell, being merely finished with a rim. Alfred

Morton, in England, has constructed double bassoons on Dr Stone's design

(fig. 2). (3) The third model is of brass and consists of a conical tube

of wide calibre some 15 or 16 ft. long, curved round four times upon

itself and having a brass tuba or euphonium bell which points upwards.

This brass model, usually known as the Belgian or French (fig. 3), was

really of Austrian origin, having been first introduced by Schoellnast of

Presburg about 1839. B. F. Czerveny of Koeniggraetz and Victor Mahillon of

Brussels both appear to have followed up this idea independently; the

former producing a metal contrafagotto in E[flat] in 1856 and one in

B[flat] which he called sub-contrafagotto in 1867, while Mahillon's was

ready in 1868. In the brass contrafagotto the lateral holes are pierced

at theoretically correct intervals along the bore, and have a diameter

almost equal to the section of the bore at the point where the hole is

pierced. The octave harmonic only is obtainable on this instrument owing

to the great length of the bore and its large calibre. There are

therefore two octave keys which give a chromatic compass [Illustration:

8va. bassa.]

The modern wooden contrafagotto has a pitch one octave below that of the

bassoon and three below that of the oboe; its compass extending from 16

ft. C. to middle C. The harmonics of the octave in the middle register

and of the 12th in the upper register are obtained by skilful

manipulation of the reed with the lips and increased pressure of the

breath. The notes of both extremes are difficult to produce.

[Illustration: FIG. 3.--The French or Belgian Contrafagotto.]

Although the double bassoon is not a transposing instrument the music

for it is written an octave higher than the real sounds in order to

avoid the ledger lines. The quality of tone is somewhat rough and

rattling in the lowest register, the volume of sound not being quite

adequate considering the depth of the pitch. In the middle and upper

registers the tone of the wooden contrafagotto possesses all the

characteristics of the bassoon. The contrafagotto has a complete

chromatic compass, and it may therefore be played in any key. Quick

passages are avoided since they would be neither easy nor effective, the

instrument being essentially a slow-speaking one. The lowest notes are

only possible to a good player, and cannot be obtained _piano_;

nevertheless, the instrument forms a fine bass to the reed family, and

supplies in the orchestra the notes missing in the double bass in order

to reach 16 ft. C.

The origin of the contrafagotto, like that of the oboe (_q.v._) must

be sought in the highest antiquity (see AULOS). Its immediate

forerunner was the double bombard or bombardino or the great double

quintpommer whose compass extended downwards to E [Illustration] It

is not known precisely when the change took place, though it was

probably soon after the transformation of the bassoon, but Handel

scored for the instrument and it was used in military bands before

being adopted in the orchestra. The original instrument made for

Handel by T. Stanesby, junior, and played by J. F. Lampe at the

Marylebone Gardens in 1739, was exhibited at the Royal Military

Exhibition, London, in 1890. Owing to its faulty construction and

weak rattling tone the double bassoon fell into disuse, in spite of

the fact that the great composers Haydn, Mozart and Beethoven scored

for it abundantly; the last used it in the C minor and choral

symphonies and wrote an _obbligato_ for it in _Fidelio_. It was

restored to favour in England by Dr W. H. Stone. (K. S.)

CONTRALTO (from Ital. _contra-alto_, _i.e._ next above the alto), the

term for the lowest variety of the female voice, as distinguished from

the soprano and mezzo-soprano. Originally it signified, in choral music,

the part next higher than the alto, given to the falsetto counter-tenor.

CONTRAPUNTAL FORMS, in Music. The forms of music may be considered in

two aspects, the texture of the music from moment to moment, and the

shape of the musical design as a whole. Historically the texture of

music became definitely organized long before the shape could be

determined by any but external or mechanical conceptions. The laws of

musical texture were known as the laws of "counterpoint" (see

COUNTERPOINT and HARMONY). The "contrapuntal" forms, then, are

historically the earliest and aesthetically the simplest in music; the

simplest, that is to say, in principle, but not necessarily the easiest

to appreciate or to execute. Their simplicity is like that of

mathematics, the simplicity of the elements involved; but the intricacy

of their details and the subtlety of their expression may easily pass

the limits of popularity, while art of a much more complex nature may

masquerade in popular guise; just as mathematical science is seldom

popularized, while biology masquerades in infant schools as "natural

history." Here, however, the resemblance between counterpoint and

mathematics ends, for the simplicity of genuine contrapuntal style is a

simplicity of emotion as well as of principle; and if the style has a

popular reputation of being severe and abstruse, this is largely because

the popular conception of emotion is conventional and dependent upon an

excessive amount of external nervous stimulus.

_1. Canonic Forms and Devices._

In the _canonic_ forms, the earliest known in music as an independent

art, the laws of texture also determine the shape of the whole, so that

it is impossible, except in the light of historical knowledge, to say

which is prior to the other. The principle of canon being that one voice

shall reproduce the material of another note for note, it follows that

in a composition where all parts are canonic and where the material of

the leading part consists of a pre-determined melody, such as a

Gregorian chant or a popular song there remains no room for further

consideration of the shape of the work. Hence, quite apart from their

expressive power and their value in teaching composers to attain

harmonic fluency under difficulties, the canonic forms played the

leading part in the music of the 15th and 16th centuries; nor indeed

have they since fallen into neglect without grave injury to the art. But

strict canon soon proved inadequate, and even dangerous, as the sole

regulating principle in music; and its rival and cognate principle, the

basing of polyphonic designs upon a given melody to which one part

(generally the tenor) was confined, proved scarcely less so. Nor were

these two principles, the canon and the _canto fermo_, likely, by

combination in their strictest forms, to produce better artistic results

than separately. Both were rigid and mechanical principles; and their

development into real artistic devices was due, not to a mere increase

in the facility of their use, but to the fact that, just as the

researches of alchemists led to the foundations of chemistry, so did the

early musical puzzles lead to the discovery of innumerable harmonic and

melodic resources which have that variety and freedom of interaction

which can be organized into true works of art and can give the ancient

mechanical devices themselves a genuine artistic character attainable by

no other means.

The earliest canonic form is the _rondel_ or _rota_ as practised in the

12th century. It is, however, canonic by accident rather than in its

original intention. It consists of a combination of short melodies in

several voices, each melody being sung by each voice in turn. Now it is

obvious that if one voice began alone, instead of all together, and if

when it went on to the second melody the second voice entered with the

first, and so on, the result would be a canon in the unison. Thus the

difference between the crude counterpoint of the rondel and a strict

canon in the unison is a mere question of the point at which the

composition begins, and a 12th century rondel is simply a canon at the

unison begun at the point where all the voices have already entered.

There is some reason to believe that one kind of rondeau practised by

Adam de la Hale was intended to be sung in the true canonic manner of

the modern round; and the wonderful English rota, "Sumer is icumen in,"

shows in the upper four parts the true canonic method, and in its

two-part _pes_ the method in which the parts began together. In these

archaic works the canonic form gives the whole a consistency and

stability contrasting oddly with the dismal warfare between nascent

harmonic principles and ancient anti-harmonic criteria which hopelessly

wrecks them as regards euphony. As soon as harmony became established on

a true artistic basis, the unaccompanied round took the position of a

trivial but refined art-form, with hardly more expressive possibilities

than the triolet in poetry, a form to which its brevity and lightness

renders it fairly comparable. Orlando di Lasso's _Celebrons sans cesse_

is a beautiful example of the 16th century round, which was at that time

little cultivated by serious musicians. In more modern times the

possibilities of the round in its purest form have enormously increased;

and with the aid of elaborate instrumental accompaniments it plays an

important feature in such portions of classical operatic _ensemble_ as

can with dramatic propriety be devoted to expressions of feeling

uninterrupted by dramatic action. In the modern round the first voice

can execute a long and complete melody before the second voice joins in.

Even if this melody be not instrumentally accompanied, it will imply a

certain harmony, or at all events arouse curiosity as to what the

harmony is to be. And the sequel may shed a new light upon the harmony,

and thus by degrees the whole character of the melody may be

transformed. The power of the modern round for humorous and subtle, or

even profound, expression was first fully revealed by Mozart, whose

astounding unaccompanied canons would be better known if he had not

unfortunately set many of them to extemporized texts unfit for

publication. The round or the _catch_ (which is simply a specially

jocose round) is a favourite English art-form, and the English specimens

of it are probably more numerous and uniformly successful than those of

any other nation. Still they cannot honestly be said to realize the full

possibilities of the form. It is so easy to write a good piece of free

and fairly contrapuntal harmony in three or more parts, and so arrange

it that it remains correct when the parts are brought in one by one,

that very few composers seem to have realized that any further artistic

device was possible within such limits. Even Cherubini gives hardly more

than a valuable hint that the round may be more than a _jeu d'esprit_;

and, unless he be an adequate exception, the unaccompanied rounds of

Mozart and Brahms stand alone as works that raise the round to the

dignity of a serious art-form. With the addition of an orchestral

accompaniment the round obviously becomes a larger thing; and when we

consider such specimens as that in the finale of Mozart's _Cosi fan

tutte_, the quartet in the last act of Cherubim's _Faniska_, the

wonderfully subtle quartet "Mir ist so wunderbar" in Beethoven's

_Fidelio_, and the very beautiful numbers in Schubert's masses where

Schubert finds expression for his genuine contrapuntal feeling without

incurring the risks resulting from his lack of training in fugue-form,

we find that the length of the initial melody, the growing variety of

the orchestral accompaniment and the finality and climax of the free

coda, combine to give the whole a character closely analogous to that of

a set of contrapuntal variations, such as the slow movement of Haydn's

"Emperor" string quartet, or the opening of the finale of Beethoven's

9th Symphony. Berlioz is fond of beginning his largest movements like a

kind of round; _e.g._ his _Dies Irae_, and _Scene aux Champs_.

A moment's reflection will show that three conditions are necessary to

make a canon into a round. First, the voices must imitate each other in

the unison; secondly, they must enter at equal intervals of time; and

thirdly, the whole melodic material must be as many times longer than

the interval of time as the number of voices; otherwise, when the last

voice has finished the first phrase, the first voice will not be ready

to return to the beginning. Strict canon is, however, possible under

innumerable other conditions, and even a round is possible with some of

the voices at the interval of an octave, as is of course inevitable in

writing for unequal voices. And in a round for unequal voices there is

obviously a new means of effect in the fact that, as the melody rotates,

its different parts change their pitch in relation to each other. The

art by which this is possible without incorrectness is that of double,

triple and multiple counterpoint (see COUNTERPOINT). Its difficulty is

variable, and with an instrumental accompaniment there is none. In

fugues, multiple counterpoint is one of the normal resources of music;

and few devices are more self-explanatory to the ear than the process by

which the subject and counter-subjects of a fugue change their

positions, revealing fresh melodic and acoustic aspects of identical

harmonic structure at every turn. This, however, is rendered possible

and interesting by the fact that the passages in such counterpoint are

separated by episodes and are free to appear in different keys. Many

fugues of Bach are written throughout in multiple counterpoint; but the

possibility of this, even to composers such as Bach and Mozart, to whom

difficulties seem unknown, depends upon the freedom of the musical

design which allows the composer to select the most effective

permutations and combinations of his counterpoint, and also to put them

into whatever key he chooses. An unaccompanied round for unequal voices

would bring about the permutations and combinations in a mechanical

order; and unless the melody were restricted to a compass common to

soprano and alto each alternate revolution would carry it beyond the

bounds of one or the other group of voices. The technical difficulties

of such a problem are destructive to artistic invention. But they do not

appear in the above-mentioned operatic rounds, though these are for

unequal voices, because here the length of the initial melody is so

great that the composition is quite long enough before the last voice

has got farther than the first or second phrase, and, moreover, the free

instrumental accompaniment is capable of furnishing a bass to a mass of

harmony otherwise incomplete.

The resources of canon, when emancipated from the principles of the

round, are considerable when the canonic form is strictly maintained,

and are inexhaustible when it is treated freely. A canon need not be in

the unison; and when it is in some other interval the imitating voice

alters the expression of the melody by transferring it to another part

of the scale. Again, the imitating voice may follow the leader at any

distance of time; and thus we have obviously a definite means of

expression in the difference of closeness with which various canonic

parts may enter, as, for instance, in the stretto of a fugue. Again, if

the answering part enters on an unaccented beat where the leader began

on the accent, there will be artistic value in the resulting difference

of rhythmic expression. This is the device known as _per arsin et

thesin_. All these devices are, in skilful hands, quite definite in

their effect upon the ear, and their expressive power is undoubtedly due

to their special canonic nature. The beauty of the pleading, rising

sequences in crossing parts that we find in the canon in the 2nd at the

opening of the _Recordare_ in Mozart's _Requiem_ is attainable by no

other technical means. The close canon in the 6th at the distance of one

minim in reversed accent in Bach's eighteenth _Goldberg_ variation owes

all its smooth harmonic expression to the fact that the two canonic

parts move in sixths which would be simultaneous but for the pause of

the minim which reverses the accents of the upper part while it creates

that chain of suspended discords which give harmonic variety to the

whole.

Two other canonic devices have important artistic value, namely,

_augmentation_ and _diminution_ (two different aspects of the same

thing) and _inversion_. In augmentation the imitating part sings twice

as slow as the leader, or sometimes still slower. This obviously should

impart a new dignity to the melody, and in diminution the expression is

generally that of an accession of liveliness.[1] Neither of these

devices, however, continues to appeal to the ear if carried on for long.

In augmentation the answering part lags so far behind the leader that

the ear cannot long follow the connexion, while a diminished answer will

obviously soon overtake the leader, and can proceed on the same plan

only by itself becoming the leader of a canon in augmentation.

Beethoven, in the fugues in his sonatas _op._ 106 and 110, adapted

augmentation and diminution to modern varieties of thematic expression,

by employing them in triple time, so that, by _doubling_ the length of

the original notes across this triple rhythm, they produce an entirely

new rhythmic expression. This does not seem to have been applied by any

earlier composer with the same consistency or intention.

The device of _inversion_ consists in the imitating part reversing every

interval of the leader, ascending where the leader descends and vice

versa. Its expressive power depends upon such subtle matters of the

harmonic expression of melody that its artistic use is one of the surest

signs of the difference between classical and merely academic music.

There are many melodies of which the inversion is as natural as the

original form, and does not strikingly alter its character. Such are,

for instance, the theme of Bach's _Kunst der Fuge_, most of Purcell's

contrapuntal themes, the theme in the fugue of Beethoven's sonata, _op._

110, and the eighth of Brahms's variations on a theme by Haydn. In such

cases inversion sometimes produces harmonic variety as well as a sense

of melodic identity in difference. But where a melody has marked

features of rise and fall, such as long scale passages or bold skips,

the inversion, if productive of good harmonic structure and expression,

may be a powerful method of transformation. This is admirably shown in

the twelfth of Bach's _Goldberg Variations_, in the fifteenth fugue of

the first book of his _Forty-eight Preludes and Fugues_, in the finale

of Beethoven's sonata, _op._ 106, and in the second subjects of the

first and last movements of Brahms's clarinet trio.

The only remaining canonic device which figures in classical music is

that known as _cancrizans_, in which the imitating part reproduces the

leader backwards. It is of extreme rarity in serious music; and, though

it sometimes happens by accident that a melody or figure of uniform

rhythm will produce something equally natural when read backwards, there

is only one example of its use that appeals to the ear as well as the

eye. This is to be found in the finale of Beethoven's sonata, _op._ 106,

where it is applied to a theme with such sharply contrasted rhythmic and

melodic features that with long familiarity a listener would probably

feel not only the wayward humour of the passage in itself, but also its

connexion with the main theme. Nevertheless, the prominence given to the

device in technical treatises, and the fact that this is the one

illustration which hardly any of them cite, show too clearly the way in

which music is treated not only as a dead language but as if it had

never been alive.

All these devices are also independent of the canonic idea, since they

are so many methods of transforming themes in themselves and need not

always be used in contrapuntal combination.

_2. Fugue._

As the composers of the 16th century made progress in harmonic and

contrapuntal expression through the discipline of strict canonic forms,

it became increasingly evident that there was no necessity for the

maintenance of strict canon throughout a composition. On the contrary,

the very variety of canonic possibilities, apart from the artistic

necessity of breaking up the uniform fulness of harmony, suggested the

desirability of changing one kind of canon for another, and even of

contrasting canonic texture with that of plain masses of non-polyphonic

harmony. The result is best known in the polyphonic 16th-century motets.

In these the essentials of canonic effect are embodied in the entry of

one voice after another with a definite theme stated by each voice in

that part of the scale which best suits its compass, thus producing a

free canon for as many parts as there are voices, in alternate intervals

of the 4th, 5th and octave, and at such distances of time as are

conducive to clearness and variety of proportion. It is not necessary

for the later voices to imitate more than the opening phrase of the

earlier, or, if they do imitate its continuation, to keep to the same

interval.

Such a texture differs in no way from that of the fugue of more modern

times. But the form is not what is now understood as fugue, inasmuch as

16th-century composers did not normally think of writing long movements

on one theme or of making a point of the return of a theme after

episodes. With the appearance of new words in the text, the 16th-century

composer naturally took up a new theme without troubling to design it

for contrapuntal combination with the opening; and the form resulting

from this treatment of words was faithfully reproduced in the

instrumental _ricercari_ of the time. Occasionally, however, breadth of

treatment and terseness of design combined to produce a short movement

on one idea indistinguishable in form from a _fughetta_ of Bach; as in

the _Kyrie_ of Palestrina's Mass, _Salve Regina_.

But in Bach's art the preservation of a main theme is more necessary the

longer the composition; and Bach has an incalculable number of methods

of giving his fugues a symmetry of form and balance of climax so subtle

and perfect that we are apt to forget that the only technical rules of a

fugue are those which refer to its texture. In the _Kunst der Fuge_ Bach

has shown with the utmost clearness how in his opinion the various types

of fugue may be classified. That extraordinary work is a series of

fugues, all on the same subject. The earlier fugues show how an artistic

design may be made by simply passing the subject from one voice to

another in orderly succession (in the first example without any change

of key except from tonic to dominant). The next stage of organization is

that in which the subject is combined with inversions, augmentations and

diminutions of itself. Fugues of this kind can be conveniently called

stretto-fugues.[2] The third and highest stage is that in which the

fugue combines its subject with contrasted counter-subjects, and thus

depends upon the resources of double, triple and quadruple counterpoint.

But of the art by which the episodes are contrasted, connected climaxes

attained, and keys and subtle rhythmic proportions so balanced as to

give the true fugue-forms a beauty and stability second only to those of

the true sonata forms, Bach's classification gives us no direct hint. A

comparison of the fugues in the _Kunst der Fuge_ with those elsewhere in

his works reveals a necessary relation between the nature of the

fugue-subject and the type of fugue. In _Kunst der Fuge_ Bach has

obvious didactic reasons for taking the same subject throughout; and, as

he wishes to show the extremes of technical possibility, that subject

must necessarily be plastic rather than characteristic. Elsewhere Bach

prefers very lively or highly characteristic themes as subjects for the

simplest kind of instrumental fugue. On the other hand, there comes a

point when the mechanical strictness of treatment crowds out the proper

development of musical ideas; and the 7th fugue (which is one solid mass

of stretto in augmentation, diminution and inversion) and the 12th and

13th (which are invertible bodily) are academic exercises outside the

range of free artistic work. On the other hand, the less complicated

stretto-fugues and the fugues in double and triple counterpoint are

perfect works of art and as beautiful as any that Bach wrote without

didactic purpose.

Fugue is still, as in the 16th century, a texture rather than a form;

and the rules given in most technical treatises for its general shape

are based, not on the practice of the great composers, but on the

necessities of beginners, whom it would be as absurd to ask to write a

fugue without giving them a form as to ask a schoolboy to write so many

pages of Latin verses without a subject. But this standard form,

whatever its merits may be in combining progressive technique with

musical sense, has no connexion with the true classical types of fugue,

though it played an interesting part in the renaissance of polyphony

during the growth of the sonata style, and even gave rise to valuable

works of art (_e.g._ the fugues in Haydn's quartets, _op._ 20). One of

its rules was that every fugue should have a stretto. This rule, like

most of the others, is absolutely without classical warrant; for in Bach

the ideas of stretto and of counter-subject almost exclude one another

except in the very largest fugues, such as the 22nd in the second book

of the Forty-eight; while Handel's fugue-writing is a masterly method,

adopted as occasion requires, and with a lordly disdain for recognized

devices. But the pedagogic rule proved to be not without artistic point

in more modern music; for fugue became, since the rise of the

sonata-form, for some generations a contrast with the normal means of

expression instead of being itself normal. And while this was so, there

was considerable point in using every possible means to enhance the

rhetorical force of its peculiar devices, as is shown by the astonishing

modern fugues in Beethoven's last works. Nowadays, however, polyphony is

universally recognized as a permanent type of musical texture, and there

is no longer any reason why if it crystallizes into the fugue-form at

all it should not adopt the classical rather than the pedagogic type.

It is still an unsatisfied wish of accurate musicians that the term

fugue should be used to imply rather a certain type of polyphonic

texture than the whole form of a composition. At present one runs the

risk of grotesque misconceptions when one quite rightly describes as

"written in fugue" such passages as the first subjects in Mozart's

_Zauberfloete_ overture, the andantes of Beethoven's first symphony and C

minor quartet, or the first and second subjects of the finale of

Mozart's G major quartet, the second subject of the finale of his D

major quintet, and the exposition of quintuple counterpoint in the coda

of the finale of the _Jupiter Symphony_, and countless other passages in

the developments and main subjects of classical and modern works in

sonata form. The ordinary use of the term implies an adherence to a

definite set of rules quite incompatible with the sonata style, and

therefore inapplicable to these passages, and at the same time equally

devoid of real connexion with the idea of fugue as understood by the

great masters of the 16th century who matured it. In the musical

articles in this Encyclopaedia we shall therefore speak of writing "in

fugue" as we would speak of a poet writing in verse, rather than weaken

our descriptions by the orthodox epithet of "loose _fugato_."

_3. Counterpoint on a Canto Fermo._

The early practice of building polyphonic designs on a voice-part

confined to a given plain-song or popular melody furnishes the origin

for every contrapuntal principle that is not canonic, and soon develops

into a canonic principle in itself. When the _canto fermo_ is in notes

of equal length and is sung without intermission, it is of course as

rigid a mechanical device as an acrostic. Yet it may have artistic value

in furnishing a steady rhythm in contrast to suitable free motion in the

other parts. When it is in the bass, as in Orlando di Lasso's six-part

_Regina Coeli_, it is apt to cramp the harmony; but when it is in the

tenor (its normal place in 16th-century music), or any other part, it

determines little but the length of the composition. It may or may not

appeal to the ear; if not, it at least does no harm, for its restricting

influence on the harmony is small if its pace is slower than that of its

surroundings. If, on the other hand, its melody is characteristic, or

can be enforced by repetition, it may become a powerful means of effect,

as in the splendid close of Fayrfax's Mass _Albanus_ quoted by Professor

Wooldridge on page 320 in the second volume of the _Oxford History of

Music_. Here the tenor part ought to be sung by a body of voices that

can be distinctly heard through the glowing superincumbent harmony; and

then the effect of its five steps of sequence in a melodious figure of

nine semibreves will reveal itself as the principle which gives the

passage consistency of drift and finality of climax.

When the rhythm of the _canto fermo_ is not uniform, or when pauses

intervene between its phrases, whether these are different figures or

repetitions of one figure in different parts of the scale, the device

passes into the region of free art, and an early example of its simplest

use is described in the article MUSIC as it appears in Josquin's

wonderful _Miserere_. Orlando di Lasso's work is full of instances of

it, one of the most dramatic of which is the motet _Fremuit spiritu

Jesus_ (_Magnum Opus_ No. 553 [378]), in which, while the other voices

sing the scripture narrative of the death and raising of Lazarus, the

tenor is heard singing to an admirably appropriate theme the words,

_Lazare, veni foras_. When the end of the narrative is reached, these

words fall into their place and are of course taken up in a magnificent

climax by the whole chorus.

The free use of phrases of _canto fermo_ in contrapuntal texture,

whether confined to one part or taken up in fugue by all, constitutes

the whole fabric of 16th-century music; except where polyphonic device

is dispensed with altogether, as in Palestrina's two settings of the

_Stabat Mater_, his _Litanies_, and all of his later _Lamentations_

except the initials. A 16th-century mass, when it is not derived in this

way from those secular melodies to which the council of Trent objected,

is so closely connected with Gregorian tones, or at least with the

themes of some motet appropriate to the holy day for which it was

written, that in a Roman Catholic cathedral service the polyphonic music

of the best period co-operates with the Gregorian intonations to produce

a consistent musical whole with a thematic coherence almost suggestive

of Wagnerian _Leitmotif_. In later times the Protestant music of Germany

attained a similar consistency, under more complicated musical

conditions, by the use of chorale-tunes; and in Bach's hands the fugal

and other treatment of chorale-melody is one of the most varied and

expressive of artistic resources. It seems to be less generally known

that the chorale plays a considerable though not systematic part in

Handel's English works. The passage "the kingdoms of the world" in the

"Hallelujah Chorus" (down to "and He shall live for ever and ever") is a

magnificent development of the second part of the chorale _Wachet auf_

("Christians wake, a voice is calling"); and it would be easy to trace a

German or Roman origin for many of the solemn phrases in long notes

which in Handel's choruses so often accompany quicker themes.

From the use of an old _canto fermo_ to the invention of an original one

is obviously a small step; and as there is no limit to the possibilities

of varying the _canto fermo_, both in the part which most emphatically

propounds it and in the imitating or contrasted parts, so there is no

line of demarcation between the free development of counterpoint on a

_canto fermo_ and the general art of combining melodies which gives

harmony its deepest expression and musical texture its liveliest action.

Nor is there any such line to separate polyphonic from non-polyphonic

methods of accompanying melody; and Bach's _Orgelbuechlein_ and Brahms's

posthumous organ-chorales show every conceivable gradation between plain

harmony or arpeggio and the most complex canon.

In Wagnerian polyphony canonic devices are rare except in such simple

moments of anticipation or of communion with nature as we have before

the rise of the curtain in the _Rheingold_ and at the daybreak in the

second act of the _Goetterdaemmerung_. On the other hand, the art of

combining contrasted themes crowds almost every other kind of musical

texture (except tremolos and similar simple means of emotional

expression) into the background, and is itself so transformed by new

harmonic resources, many of which are Wagner's own discovery, that it

may almost be said to constitute a new form of art. The influence of

this upon instrumental music is as yet helpful only in those new forms

which are breaking away from the limits of the sonata style; and it is

impossible at present to sift the essential from the unessential in that

marvellous compound of canonic device, Wagnerian harmony, original

technique and total disregard of every known principle of musical

grammar, which renders the work of Richard Strauss the most remarkable

musical phenomenon of recent years. All that is certain is that the two

elements in which the music of the future will finally place its main

organizing principles are not those of instrumentation and external

expression, on which popular interest and controversy are at present

centred, but rhythmic flow and counterpoint. These have always been the

elements which suffered from neglect or anarchy in earlier

transition-periods, and they have always been the elements that gave

rationality to the new art to which the transitions led. (D. F. T.)