Analogues of contraband.

The carriage of belligerent despatches connected with the conduct of a war or of persons in the service of a belligerent state falls within the prohibition of contraband traffic, but to distinguish such traffic from that of contraband, properly so called, the term applied to it in international law is "analogues of contraband." The penalty attaching to such carriage necessarily varies according to the degree of the analogy.

Continuous voyages.

Trade between neutrals has a prima facie right to go on, in spite of war, without molestation. But if the ultimate destination of goods, though shipped first to a neutral port, is enemy's territory, then, according to the doctrine of "continuous voyages," the goods may be treated as if they had been shipped to the enemy's territory direct. The doctrine is entirely Anglo-Saxon in its origin[1] and development. Only in one case does it seem ever to have been actually put in force by a foreign prize court, namely, in the case of the "Doelwijk," a Dutch vessel which was adjudged good prize by an Italian court on the ground that, although bound for Djibouti, a French port, it was laden with a provision of arms of a model which had gone out of use in Europe, and could only be destined for the Abyssinians, with whom Italy was at war.

The Institute of International Law in 1896 adopted the following rule on the subject:—

"Destination to the enemy is presumed, where the shipment is to one of the enemy ports, or to a neutral port, if it is unquestionably proved by the facts that the neutral port was only a state (etape) towards the enemy as the final destination of a single commercial operation."

During the South African War (1899-1902) Great Britain was involved in controversy with Germany, who at first declined to recognize the existence of any rule which could interfere with trade between neutrals, the German vessels in question having been stopped on their way to a neutral port.

As stated above, the Second Hague Conference failed to come to any understanding on contraband, but the subject was exhaustively dealt with by the Conference of London (1908-1909) on the laws and customs of naval war, in the following articles:—

ART. 22.—The following articles may, without notice, be treated as contraband of war, under the name of absolute contraband: (1) Arms of all kinds, including arms for sporting purposes, and their distinctive component parts; (2) projectiles, charges and cartridges of all kinds, and their distinctive component parts; (3) powder and explosives specially prepared for use in war; (4) gun-mountings, limber boxes, limbers, military wagons, field forges and their distinctive component parts; (5) clothing and equipment of a distinctively military character; (6) all kinds of harness of a distinctively military character; (7) saddle, draught and pack animals suitable for use in war; (8) articles of camp equipment and their distinctive component parts; (9) armour plates; (10) warships, including boats, and their distinctive component parts of such a nature that they can only be used on a vessel of war; (11) implements and apparatus designed exclusively for the manufacture of munitions of war, for the manufacture or repair of arms, or war material for use on land or sea.

ART. 23.—Articles exclusively used for war may be added to the list of absolute contraband by a declaration, which must be notified. Such notification must be addressed to the governments of other powers, or to their representatives accredited to the power making the declaration. A notification made after the outbreak of hostilities is addressed only to neutral powers.

ART. 24.—The following articles, susceptible of use in war as well as for purposes of peace, may, without notice, be treated as contraband of war, under the name of conditional contraband: (1) Foodstuffs; (2) forage and grain, suitable for feeding animals; (3) clothing, fabrics for clothing, and boots and shoes, suitable for use in war; (4) gold and silver in coin or bullion; paper money; (5) vehicles of all kinds available for use in war, and their component parts; (6) vessels, craft and boats of all kinds; floating docks, parts of docks and their component parts; (7) railway material, both fixed and rolling-stock, and material for telegraphs, wireless telegraphs and telephones; (8) balloons and flying machines and their distinctive component parts, together with accessories and articles recognizable as intended for use in connexion with balloons and flying machines; (9) fuel; lubricants; (10) powder and explosives not specially prepared for use in war; (11) barbed wire and implements for fixing and cutting the same; (12) horseshoes and shoeing materials; (13) harness and saddlery; (14) field glasses, telescopes, chronometers and all kinds of nautical instruments.

ART. 25.—Articles susceptible of use in war as well as for purposes of peace, other than those enumerated in Articles 22 and 24, may be added to the list of conditional contraband by a declaration, which must be notified in the manner provided for in the second paragraph of Article 23.

ART. 26.—If a power waives, so far as it is concerned, the right to treat as contraband of war an article comprised in any of the classes enumerated in Articles 22 and 24, such intention shall be announced by a declaration, which must be notified in the manner provided for in the second paragraph of Article 23.

ART. 27.—Articles which are not susceptible of use in war may not be declared contraband of war.

ART. 28.—The following may not be declared contraband of war: (1) Raw cotton, wool, silk, jute, flax, hemp and other raw materials of the textile industries, and yarns of the same; (2) oil seeds and nuts; copra; (3) rubber, resins, gums and lacs; hops; (4) raw hides and horns, bones and ivory; (5) natural and artificial manures, including nitrates and phosphates for agricultural purposes; (6) metallic ores; (7) earths, clays, lime, chalk, stone, including marble, bricks, slates and tiles; (8) Chinaware and glass; (9) paper and paper-making materials; (10) soap, paint and colours, including articles exclusively used in their manufacture, and varnish; (11) bleaching powder, soda ash, caustic soda, salt cake, ammonia, sulphate of ammonia and sulphate of copper; (12) agricultural, mining, textile and printing machinery; (13) precious and semiprecious stones, pearls, mother-of-pearl and coral; (14) clocks and watches, other than chronometers; (15) fashion and fancy goods; (16) feathers of all kinds, hairs and bristles; (17) articles of household furniture and decoration; office furniture and requisites.

ART. 29.—Likewise the following may not be treated as contraband of war: (1) Articles serving exclusively to aid the sick and wounded. They can, however, in case of urgent military necessity and subject to the payment of compensation, be requisitioned, if their destination is that specified in Article 30; (2) articles intended for the use of the vessel in which they are found, as well as those intended for the use of her crew and passengers during the voyage.

ART. 30.—Absolute contraband is liable to capture if it is shown to be destined to territory belonging to or occupied by the enemy, or to the armed forces of the enemy. It is immaterial whether the carriage of the goods is direct or entails transhipment or a subsequent transport by land.

ART. 31.—Proof of the destination specified in Article 30 is complete in the following cases: (1) When the goods are documented for discharge in an enemy port, or for delivery to the armed forces of the enemy; (2) when the vessel is to call at enemy ports only, or when she is to touch at an enemy port or meet the armed forces of the enemy before reaching the neutral port for which the goods in question are documented.

ART. 32.—Where a vessel is carrying absolute contraband, her papers are conclusive proof as to the voyage on which she is engaged, unless she is found clearly out of the course indicated by her papers and unable to give adequate reasons to justify such deviation.

ART. 33.—Conditional contraband is liable to capture if it is shown to be destined for the use of the armed forces or of a government department of the enemy state, unless in this latter case the circumstances show that the goods cannot in fact be used for the purposes of the war in progress. This latter exception does not apply to a consignment coming under Article 24 (4).

ART. 34.—-The destination referred to in Article 33 is presumed to exist if the goods are consigned to enemy authorities, or to a contractor established in the enemy country who, as a matter of common knowledge, supplies articles of this kind to the enemy. A similar presumption arises if the goods are consigned to a fortified place belonging to the enemy, or other place serving as a base for the armed forces of the enemy. No such presumption, however, arises in the case of a merchant vessel bound for one of these places if it is sought to prove that she herself is contraband. In cases where the above presumptions do not arise, the destination is presumed to be innocent. The presumptions set up by this article may be rebutted.

ART. 35.—Conditional contraband is not liable to capture, except when found on board a vessel bound for territory belonging to or occupied by the enemy, or for the armed forces of the enemy, and when it is not to be discharged in an intervening neutral port. The ship's papers are conclusive proof both as to the voyage on which the vessel is engaged and as to the port of discharge of the goods, unless she is found clearly out of the course indicated by her papers, and unable to give adequate reasons to justify such deviation.

ART. 36.—Notwithstanding the provisions of Article 35, conditional contraband, if shown to have the destination referred to in Article 33, is liable to capture in cases where the enemy country has no seaboard.

ART. 37.—A vessel carrying goods liable to capture as absolute or conditional contraband may be captured on the high seas or in the territorial waters of the belligerents throughout the whole of her voyage, even if she is to touch at a port of call before reaching the hostile destination.

ART. 38.—A vessel may not be captured on the ground that she has carried contraband on a previous occasion if such carriage is in point of fact at an end.

ART. 39.—Contraband goods are liable to condemnation.

ART. 40.—A vessel carrying contraband may be condemned if the contraband, reckoned either by value, weight, volume or freight, forms more than half the cargo.

ART. 41.—If a vessel carrying contraband is released, she may be condemned to pay the costs and expenses incurred by the captor in respect of the proceedings in the national prize court and the custody of the ship and cargo during the proceedings.

ART. 42.—Goods which belong to the owner of the contraband and are on board the same vessel are liable to condemnation.

ART. 43.—If a vessel is encountered at sea while unaware of the outbreak of hostilities or of the declaration of contraband which applies to her cargo, the contraband cannot be condemned except on payment of compensation; the vessel herself and the remainder of the cargo are not liable to condemnation or to the costs and expenses referred to in Article 41. The same rule applies if the master, after becoming aware of the outbreak of hostilities, or of the declaration of contraband, has had no opportunity of discharging the contraband. A vessel is deemed to be aware of the existence of a state of war, or of a declaration of contraband, if she left a neutral port subsequently to the notification to the power to which such port belongs of the outbreak of hostilities or of the declaration of contraband respectively, provided that such notification was made in sufficient time. A vessel is also deemed to be aware of the existence of a state of war if she left an enemy port after the outbreak of hostilities.

ART. 44.—A vessel which has been stopped on the ground that she is carrying contraband, and which is not liable to condemnation on account of the proportion of contraband on board, may, when the circumstances permit, be allowed to continue her voyage if the master is willing to hand over the contraband to the belligerent warship. The delivery of the contraband must be entered by the captor on the log-book of the vessel stopped, and the master must give the captor duly certified copies of all relevant papers. The captor is at liberty to destroy the contraband that has been handed over to him under these conditions.

See Hautefeuille, Des droits et devoirs des nations neutres (2nd ed., 1858); Perels, Droit maritime international, traduit par Arendt (Paris, 1884); Moore, Digest of International Law (1906); L. Oppenheim, International Law (1907); Barclay, Problems of International Practice and Diplomacy (1907). See also Hall, International Law on Analogues of Contraband; Smith and Sibley, International Law as interpreted during the Russo-Japanese War, 1905, on "Malacca" and "Prinz Heinrich" cases (mails). (T. BA.)

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.



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

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.



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 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.