Abridged from Professor Geikie’s Primer of Physical Geography.
The sea is full of life, both of plants and animals. These organisms die, and their remains necessarily get mixed up with the different materials laid down upon the sea floor. So that, beside the mere sand and mud, great numbers of shells, corals, and the harder parts of other sea creatures must be buried there, as generation after generation comes and goes.
It often happens that on parts of the sea bed the remains of some of these animals are so abundant that they themselves form thick and wide-spread deposits. Oysters, for example, grow thickly together; and their shells, mingled with those of other similar creatures, form what are called shell banks. In the Pacific and the Indian Oceans a little animal, called the coral-polyp, secretes a hard limy skeleton from the sea water; and as millions of these polyps grow together, they form great reefs of solid rock, which are sometimes, as in the Great Barrier Reef of Australia, hundreds of feet thick and a thousand miles long. It is by means of the growth of these animals that those wonderful rings of coral rock or coral islands are formed in the middle of the ocean. Again, a great part of the bed of the Atlantic Ocean is covered with fine mud, which on examination is found to consist almost wholly of the remains of very minute animals called foraminifera.
Over the bottom of the sea, therefore, great beds of sand and mud, mingled with the remains of plants and animals, are always accumulating. If now this bottom could be raised up above the sea level, even though the sand and mud should get as dry and hard as any rock among the hills, you would be able to say with certainty that they had once been under the sea, because you would find in them the shells and other remains of marine animals. This raising of the sea bottom has often taken place in ancient times. You will find most of the rocks of our hills and valleys to have been originally laid down in the sea, where they were formed out of sand and mud dropped on the sea floor, just as sand and mud are carried out to sea and laid down there now. And in these rocks, not merely near the shore, but far inland, in quarries or ravines, or the sides and even the tops of the hills, you will be able to pick out the skeletons and fragments of the various sea creatures which were living in the old seas.
Since the bottom of the sea forms the great receptacle into which the mouldered remains of the surface of the land are continually carried, it is plain that if this state of things were to go on without modification or hindrance, in the end the whole of the solid land would be worn away, and its remains would be spread out on the sea floor, leaving one vast ocean to roll round the globe.
But there is in nature another force which here comes into play to retard the destruction of the land.
It may seem at first as if it were hopeless that man should ever know anything about the earth’s interior. Just think what a huge ball this globe of ours is, and you will see that after all, in living and moving over its surface, we are merely like flies walking over a great hill. All that can be seen from the top of the highest mountain to the bottom of the deepest mine is not more in comparison than the mere varnish on the outside of a school globe. And yet a good deal can be learnt as to what takes place within the earth. Here and there, in different countries, there are places where communication exists between the interior and the surface; and it is from such places that much of our information on this subject is derived. Volcanoes are among the most important of the channels of communication with the interior.
Let us suppose that you were to visit one of these volcanoes just before what is called “an eruption.” As you approach it, you see a conical mountain, seemingly with its top cut off. From this truncated summit a white cloud rises. But it is not quite such a cloud as you would see on a hill top in this country. For as you watch it you notice that it rises out of the top of the mountain, even though there are no clouds to be seen anywhere else. Ascending from the vegetation of the lower grounds, you find the slopes to consist partly of loose stones and ashes, partly of rough black sheets of rock, like the slags of an iron furnace. As you get nearer the top the ground feels hot, and puffs of steam, together with stifling vapors, come out of it here and there. At last you reach the summit, and there what seemed a level top is seen to be in reality a great basin, with steep walls descending into the depths of the mountain. Screening your face as well as possible from the hot gases which almost choke you, you creep to the top of this basin, and look down into it. Far below, at the base of the rough red and yellow cliffs which form its sides, lies a pool of some liquid, glowing with a white heat, though covered for the most part with a black crust like that seen on the outside of the mountain during the ascent. From this fiery pool jets of the red hot liquid are jerked out every now and then, stones and dust are cast up into the air, and fall back again, and clouds of steam ascend from the same source and form the uprising cloud which is seen from a great distance hanging over the mountain.
This caldron-shaped hollow on the summit of the mountain is the crater. The intensely heated liquid in the sputtering boiling pool at its bottom is melted rock or lava. And the fragmentary materials—ashes, dust, cinders, and stones—thrown out, are torn from the hardened sides and bottom of the crater by the violence of the explosions with which the gases and steam escape.
The hot air and steam, and the melted mass at the bottom of the crater, show that there must be some source of intense heat underneath. And as the heat has been coming out for hundreds, or even thousands of years, it must exist there in great abundance.
But it is when the volcano appears in active eruption that the power of this underground heat shows itself most markedly. For a day or two beforehand, the ground around the mountain trembles. At length, in a series of violent explosions, the heart of the volcano is torn open, and perhaps its upper part is blown into the air. Huge clouds of steam roll away up into the air, mingled with fine dust and red hot stones. The heavier stones fall back again into the crater or on the outer slopes of the mountain, but the finer ashes come out in such quantity, as sometimes to darken the sky for many miles round, and to settle down over the surrounding country as a thick covering. Streams of white hot molten lava run down the outside of the mountain, and descend even to the gardens and houses at the base, burning up or overflowing whatever lies in their path. This state of matters continues for days or weeks, until the volcano exhausts itself, and then a time of comparative quiet comes, when only steam, hot vapors, and gases are given off.
About 1800 years ago, there was a mountain near Naples shaped like a volcano, and with a large crater covered with brushwood. No one had ever seen any steam, or ashes, or lava come from it, and the people did not imagine it to be a volcano, like some other mountains in that part of Europe. They had built villages and towns around its base, and their district, from its beauty and soft climate, used to attract wealthy Romans to build villas there. But at last, after hardly any warning, the whole of the higher part of the mountain was blown into the air with terrific explosions. Such showers of fine ashes fell for miles around, that the sky was as dark as midnight. Day and night the ashes and stones descended on the surrounding country; many of the inhabitants were killed, either by stones falling on them, or from suffocation by the dust. When at last the eruption ceased, the district, which had before drawn visitors from all parts of the old world, was found to be a mere desert of grey dust and stone. Towns and villages, vineyards and gardens, were all buried. Of the towns, the two most noted were called Herculaneum and Pompeii. So completely did they disappear, that, although important places at the time, their very sites were forgotten, and only by accident, after the lapse of some fifteen hundred years, were they discovered. Excavations have since that time been carried on, the hardened volcanic accumulations have been removed from the old city, and you can now walk through the streets of Pompeii again, with their roofless dwelling houses and shops, theaters and temples, and mark on the causeway the deep ruts worn by the carriage wheels of the Pompeians eighteen centuries ago. Beyond the walls of the now silent city rises Mount Vesuvius, with its smoking crater, covering one half of the old mountain which was blown up when Pompeii disappeared.
Volcanoes, then, mark the position of some of the holes or orifices, whereby heated materials from the inside of the earth are thrown up to the surface. They occur in all quarters of the globe. In Europe, beside Mount Vesuvius, which has been more or less active since it was formed, Etna, Stromboli, and other smaller volcanoes, occur in the basin of the Mediterranean, while far to the northwest some volcanoes rise amid the snows and glaciers of Iceland. In America a chain of huge volcanoes stretches down the range of mountains which rises from the western margin of the continent. In Asia they are thickly grouped together in Java and some of the surrounding islands, and stretch thence through Japan and the Aleutian Isles, to the extremity of North America. If you trace this distribution upon the map, you will see that the Pacific Ocean is girded all round with volcanoes.
Since these openings into the interior of the earth are so numerous over the surface, we may conclude that this interior is intensely hot. But we have other proofs of this internal heat. In many countries hot springs rise to the surface. Even in England, which is a long way from any active volcano, the water of the wells of Bath is quite warm (120° Fahr.). It is known, too, that in all countries the heat increases as we descend into the earth. The deeper a mine the warmer are the rocks and air at its bottom. If the heat continues to increase in the same proportion, the rocks must be red hot at no great distance beneath us.
It is not merely by volcanoes and hot springs, however, that the internal heat of the earth affects the surface. The solid ground is made to tremble, or is rent asunder, or is upheaved or let down. You have probably heard or read of earthquakes; those shakings of the ground, which, when they are at their worst, crack the ground open, throw down trees and buildings, and bury hundreds or thousands of people in the ruins. Earthquakes are most common in or near those countries where active volcanoes exist. They frequently take place just before a volcanic eruption.
Some parts of the land are slowly rising out of the sea; rocks, which used always to be covered by the tides, come to be wholly beyond their limits; while others, which used never to be seen at all, begin one by one to show their heads above water. On the other hand some tracts are slowly sinking; piers, sea walls, and other old landmarks on the beach, are one after another enveloped by the sea as it encroaches further and higher on the land. These movements, whether in an upward or downward direction, are likewise due in some way to the internal heat.
Now when you reflect upon these various changes you will see that through the agency of this same internal heat land is preserved upon the face of the earth. If rain and frost, rivers, glaciers, and the sea were to go on wearing down the surface of the land continually, without any counterbalancing kind of action, the land would necessarily in the end disappear, and indeed would have disappeared long ago. But owing to the pushing out of some parts of the earth’s surface by the movements of the heated materials inside, portions of the land are raised to a higher level, while parts of the bed of the sea are actually upheaved so as to form land.
This kind of elevation has happened many times in all quarters of the globe. As already mentioned most of our hills and valleys are formed of rocks, which were originally laid down on the bottom of the sea, and have been subsequently raised into land.
This earth of ours is the scene of continual movement and change. The atmosphere which encircles it is continually in motion, diffusing heat, light, and vapor. From the sea and from the waters of the land, vapor is constantly passing into the air, whence, condensed into clouds, rain and snow, it descends again to the earth. All over the surface of the land the water which falls from the sky courses seaward in brooks and rivers, bearing into the great deep the materials which are worn away from the land. Water is thus ceaselessly circulating between the air, the land, and the sea. The sea, too, is never at rest. Its waves gnaw the edges of the land, and its currents sweep round the globe. Into its depths the spoils of the land are borne, there to gather into rocks, out of which new islands and continents will eventually be formed. Lastly, inside the earth is lodged a vast store of heat by which the surface is shaken, rent open, upraised or depressed. Thus, while old land is submerged beneath the sea, new tracts are upheaved, to be clothed with vegetation and peopled with animals, and to form a fitting abode for man himself.
This world is not a living being, like a plant or an animal, and yet you must now see that there is a sense in which we may speak of it as such. The circulation of air and water, the interchange of sea and land; in short the system of endless and continual movement by which the face of the globe is day by day altered and renewed, may well be called the Life of the Earth.
SELECTED BY THE REV. J. H. VINCENT, D.D.
“As a madman who casteth firebrands, arrows, and death, so is the man who deceiveth his neighbor, and saith, ‘Am I not in sport?’” Proverbs xxvi, 18:19.
It is incalculable how much pain is inflicted, and how much injury is done, without anything which can properly be called malicious intent, or deliberate wrong. Thus there are those who, like the madman mentioned in Scripture, will cast firebrands, arrows, and death, and then think it a sufficient excuse to say, “Are we not in sport?” Let it be that they are; I think it will not be difficult to show that this will not excuse, or do much to palliate, the conduct in question. I think it will not be difficult to show that men are answerable for the mischiefs they do from mere wantonness or in sport, and that it is wrong-doing of this description which makes up no inconsiderable part of every one’s guilt.
It is to little or no purpose to be able to say that such offences do not originate in conscious malice, for, as has just been intimated, the same is true of a large proportion of acknowledged crimes. It is seldom, very seldom, that men injure one another from hatred, or for the sake of revenge—because they find, or expect to find, any pleasure in the mere consciousness of inflicting pain. Men injure one another from wantonness, or want of consideration; or, more commonly still, because the carrying out of their policy, or their prejudices, or their sport, happens to interfere with the interests and comfort of others, and, though really sorry for this, they are not prepared to give up either their policy or their prejudices, or their sport to spare another’s feelings. Wars are waged and conquests made, mourning and desolation spread through a whole country, in the wantonness of honor, or to gratify an insatiable ambition; but without anything which can properly be called malice, either in the first movers or immediate agents. Men opposed to each other in politics or religion will allow this opposition to go to very unjustifiable lengths, even to the disturbing of the peace of neighborhoods, and the breaking of friendships and family connections; and all this, to be sure, must give rise to a great deal of ill-will and hot blood; but it does not originate in malice, properly so called—in positive malice toward anybody. Likewise a rash and improvident man may bring incalculable mischief on all connected with him, involving them in pecuniary difficulties, or committing and paining them in other ways, and yet be able to allege with perfect truth that he did not mean to do them any harm; that, so far from being actuated by malice, he feels nothing and has felt nothing but the sincerest affection for the very persons whom he has injured, and most affection, perhaps, for those whom he has most injured. But why multiply illustrations? The whole catalogue of the vices of self-indulgence and excess—black and comprehensive as it is—has nothing to do with malicious intent; that is to say, these vices do not find any part of their temptation or gratification in ill-will to others, or in the consciousness of causing misery to others. And yet who, on this account, denies that they are vices, or that they are among the worst of vices?
The moral perplexity existing in some minds on this subject may be traced to two errors: making malice to be the only bad motive by which we can be actuated, and confounding the mere absence of malice with that active principle of benevolence, or love of our neighbor, which Christianity makes to be the foundation and substance of all true social virtue.
How unfounded the first of these assumptions is, appears generally from what has been said; but the same may also be shown on strictly ethical grounds. We must distinguish between what is simply odious, and what is immoral. The malignant passions when acted out by animals are odious, but they are not immoral, because they are not comprehended in that light by the agent. The reason why the malignant passions are immoral in man is that he knows them to be immoral; and accordingly any other passion, which he knows to be immoral, becomes for the same reason alike immoral to him as a principle of conduct. Hence it follows that, though not actuated by malice, we may be by some other motive equally reprehensible in a moral point of view, though not perhaps as odious—by the love of ease, by vanity or pride, by unjust partialities, by inordinate ambition, by avarice or lust—dispositions which have nothing to do with malice, but yet are felt and acknowledged by all to be bad and immoral.
Moreover, the tendencies of modern civilization are to be considered in this connection. Times of violence are gradually giving place to times of self-indulgence and fraud; and the consequence is that now, where one man is betrayed into vices of malevolence and outrage, twenty are betrayed into those of frivolity, licentiousness, or overreaching. I go further still. Suppose a man actuated by none of these positively bad motives; nay, suppose the injury done to be accidental and wholly unintentional, this will not in all cases justify the deed. The question still arises whether the injury done, supposing it to be wholly unintentional, might not have been foreseen, and ought not to have been foreseen; for, where the well-being of others is concerned, we are bound not only to mean no harm, but to take care to avoid everything which is likely to do harm; and negligence in this respect is itself a crime. So obviously just is this principle, so entirely does it approve itself to the reason and common sense of mankind, that we find it everywhere recognized, in some form or other, in the jurisprudence of civilized countries. “When a workman flings down a stone or piece of timber into the street, and kills a man, this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act is done. If it were in a country village, where a few passengers are, and he calls out to all people to have a care, it is misadventure only; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning; and murder, if he knows of their passing and gives no warning at all, for then it is malice against all mankind.”[A]
Equally groundless is the second of the above mentioned assumptions, to wit: that of confounding the mere absence of malice with the active principle of benevolence itself or that love of our neighbor which Christianity makes to be the foundation and substance of all true social virtue. There is nothing, perhaps, which more essentially distinguishes worldly propriety and legal honesty from Christian virtue than this, that they stop with negatives. They are content with avoiding what is expressly forbidden, not reflecting that this, at the best, only makes men to be not bad; it does not make them to be good. Besides, if we take this ground, if we allege the absence of all anger and resentment, we bar the plea that we were hurried into the act by the impetuosity of our passions—a plea which the experience of a common infirmity has always led men to regard as the strongest extenuating circumstance of wrong-doing. If we have given pain to a fellow creature, it is stating an aggravation of the fault and not an excuse, to say that we did not do it in passion, but in cold blood; and worse still, if we say that we did it in sport. What! find sport in giving pain to others? This may consist, I suppose, with the absence of what is commonly understood by malice; but I utterly deny its compatibility with active Christian benevolence, or with what indeed amounts to the same thing, a kind, generous, and magnanimous nature. Were I in quest of facts to prove the total depravity of man, I should eagerly seize on such as the following: The shouts of heartless merriment sometimes heard to arise from a crowd of idlers collected around a miserable object in the streets; a propensity to turn into ridicule, not merely the faults and affectations of others, but their natural deformities or defects; jesting with sacred things, or practical jests, the consequences of which to one of the parties are of the most serious and painful character; and the pleasure with which men listen to sarcastic remarks though causeless and unprovoked, or to wit the whole point of which consists in its sting. Not that the doctrine of universal and total depravity is actually proved even by such conduct, for happily the conduct itself is not universal; to some it is repugnant from the beginning; and besides, even where it is fallen into, I suppose it is to be referred in a majority of cases to a love of excitement, rather than to a love of evil for its own sake. Still I maintain that the conduct in question, however explained, is incompatible, or at any rate utterly inconsistent, with thoughtful and generous natures.
[A] Blackstone.
Still, many who would not think entirely to excuse the conduct in question can find palliations for it and extenuating circumstances, some of which it will be well to examine.
In the first place it is said that the sport is not found in the sufferings of the victim, but in the awkward and ludicrous situations and embarrassments into which he is thrown. Now I admit, that, if these awkwardnesses and absurdities could be entirely disconnected with the idea of pain, they might amuse even a good mind; but as they can not be thus disconnected—as all this is known and seen to be the expression of anguish either of body or mind, or to be the consequence of some natural defect or misfortune, or some cruel imposition on weakness or good nature—I affirm as before, that he whose mirth is not checked by this single consideration betrays a want of true benevolence, and even of common humanity. Neither will it help the matter much to say that the pain and mortification are not known, are not seen, or at least are not attended to; that this view of the subject is entirely overlooked, the mind being wholly taken up with its ludicrous aspects. For how comes it that we have so quick a sense to everything ludicrous in the situation and conduct of others, but no sense at all to their sufferings? Our hearts, it would seem, are not as yet steeled against all sympathy in the sufferings and misfortunes of our neighbors, provided we can be made to apprehend and realize them; and this is well; but why so slow to apprehend and realize them? If, though directly before our eyes, the thought of them never occurs to our minds; if we can say, and say with truth, that while we enjoy the sport it never once occurred to us that it was at the expense of another’s feelings, though this fact was all the time staring us in the face—does it not at least betray a degree of indifference or carelessness about the feelings of others, which is only compatible with a cold and selfish temper? Put whatever construction you will, therefore, on this kind of sport, it argues a bad state of the affections; for either its connection with the pain and mortification of others is perceived, and then it is downright cruelty; or it is not perceived, and then it is downright insensibility.
Another ground is sometimes taken. There are those who will say, “We cannot help it. Persons of a constitution less susceptible to the ludicrous, or less quick to observe it, may do differently, but we cannot.” Obviously, however, reasonings of this sort, if intended as a valid excuse, betray a singular and almost hopeless confusion of moral ideas. They cannot help it? Of course they do not mean that they would be affected in the same way by the same thing, under all circumstances and in all states of feeling. Let the coarse jest be at the expense of a parent, or of a sister; or let its tendency be to bring derision on an office, a cause, or a doctrine which we have much at heart; or let it offend beyond a certain point against the conventional usages of what is called good society—and, instead of provoking mirth, it provokes indignation or contempt. All they can mean, therefore, is simply this: Their sense of the ludicrous is so keen, that, when not restrained by some present feeling of justice, humanity, or decorum, it becomes irrepressible. Undoubtedly it does; but this is no more than what might be said of the worst crimes of sensuality and excess. What would you think if a sordid man should plead, that being sordid by nature, and not having any high principle or feeling to restrain him, he cannot help acting sordidly? Does he not know that it is this want of high principle and feeling which constitutes the very essence of his sin? We have shown that to find sport in what gives pain, argues a bad state of the principles and affections. Manifestly, therefore, it is to no purpose to urge as an excuse, that in the existing state of our principles and affections we can not help it; for the existing state of our principles and affections is the very thing which is complained of and condemned.
It may be contended, as a last resort, that this state of mind is consistent, to say the least, with amiable manners, companionable qualities, and good nature. But if herein is meant to be included real kindness of heart, or the highest forms of generosity and nobleness of soul, I deny that it can be. There is no necessity of trying to make it out that men of this stamp are worse than they really are. Unquestionably they can and often do make themselves agreeable and entertaining, especially to those who are not very scrupulous about the occasions of their mirth, and feel no repugnance to join in a laugh which perhaps they would hesitate to raise. Good-natured also they may be, if nothing more is meant by this than the absence of an unaccommodating, morose, and churlish disposition; for there are two sorts of good nature, the good nature of benevolence, and the good nature of ease and indifference. The first will not consist, as we have seen, with wrong-doing from wantonness or in sport; but the last may; yet even when it does, not much credit can accrue from this circumstance. Worthy of all honor is that good nature which springs from genuine kindness and sympathy, or a desire to make and to see everybody happy; but the same can hardly be said of what often passes for good-nature in the world, though it is nothing but the result of an easy temper and loose principles.
Still, I can not but think that a large majority of those who sometimes look for sport in wrong-doing have enough of humanity and of justice to restrain them, if they could only be made to understand and feel the extent of the injury thus occasioned. Take, for example, jesting with sacred things. Its influence on those who indulge in it is worse than that of infidelity, for it destroys our reverence, and it is harder to recover our reverence, after it has been lost, than our convictions. Nay, it is often worse than that of daring crime; the latter puts us in opposition to religion, but it does not necessarily undermine our respect for it, or the sentiment on which the whole rests. Consider, too, its effect on others. The multitude are apt to mistake what is laughed at by their superiors for what is ridiculous in itself. In France it was not the sober arguments of a knot of misguided atheists, but the scoffs and mockeries and ill-timed pleasantries in which the higher classes generally shared, which destroyed the popular sense of the sanctity of religion; and when this great regulative principle of society was gone, it was not long before the mischief came back, amidst scenes of popular license and desperation, “to plague the inventors.” And so of cruel sports. In reading the Sermon on the Mount, you must have been struck with the fact that, while he who is angry with his brother is only said to be in danger of the judgment, “whosoever shall say, thou fool, shall be in danger of hell fire.” But, on second thoughts, is this anything more than a simple recognition of what we all know to be true; that hatred does not inflict half so deep or bitter a feeling of wrong as scorn? Much is said about the disorganizing doctrines and theories of the day, but, bad as these are, they are not likely to do so much to exasperate the poor against the rich, and break down the bulwarks of order and law, as the conduct of some among the rich themselves. The time was when the few could trample with indifference on the interests and feelings of the many, and make sport of their complaints with impunity, but that time has passed away.
One word also on those cruel sports where animals, and not men, are the sufferers. Cruelty to animals is essentially the same feeling with cruelty to a fellow-creature, and in some respects it is even more unbecoming. Man is as a god to the inferior races. To abuse the power which this gives us over the helpless beings that Providence has placed at our mercy, is as mean as it is inhuman. If we would listen to the pleadings of what is noble and generous in our natures, it would be as impossible for us needlessly to harm an unoffending animal, as it would be to strike an infant or an idiot. Shame on the craven who quails before his equals, and then goes away and wreaks his unmanly resentments on a creature which he knows can neither retaliate nor speak! Besides, we may suppose that there are orders of beings above us, as well as below us. Look then at our treatment of the lower animals, and then ask yourselves what we should think, if a superior order of beings should mete out to us the same measure. What if in mere wantonness, or to pamper unnatural tastes, they should subject us to every imaginable hardship and wrong? What if they should make a show, a public recreation, of our foolish contests and dying agonies? Nay, more; what if it should come to this, that in their language a man-killer should be called a sportsman by way of distinction?
But I must close. We have it on the authority of the Bible, and we read it in the constitution of man, that there is “a time to weep and a time to laugh.” There will also be ample scope for the legitimate action of caustic wit, so long as there are follies to be shown up, pretenders to be unmasked, and conceit and affectation to be taught to know themselves. But, in the serious strifes of the world, the ultimate advantages of this weapon, though wielded on the right side, are more than dubious. “The Spaniards have lamented,” it has been said, “and I believe truly, that Cervantes’ just and inimitable ridicule of knight-errantry rooted up, with that folly, a great deal of their real honor. And it was apparent that Butler’s fine satire on fanaticism contributed not a little, during the licentious times of Charles II., to bring sober piety into disrepute. The reason is evident; there are many lines of resemblance between truth and its counterfeits; and it is the province of wit only to find out the likenesses in things, and not the talent of the common admirers of it to discover the differences.” At any rate we can shun the rock of small wits who think to make up for poverty of invention by a scurrility and grimace, who think to gain from the venom of the shaft what is wanting in the vigor of the bow. We can imitate the example of those among the great masters of wit in all ages, who have ennobled it by purity of expression and a moral aim; so that, in the end, virtue may not have occasion to blush, or humanity to mourn, for anything we have said or done. Take any other course and we are reminded of the confession which experience wrung from the lips of the wise man: “I said in my heart, go to now, I will prove thee with mirth; therefore enjoy pleasure; and behold this also is vanity. I said of laughter, it is mad; and of mirth, what doeth it?” “Even in laughter the heart is sorrowful, and the end of that mirth is heaviness.”
By EDWARD C. REYNOLDS, Esq.
It perhaps would be well for us to take a glance at the origin of the law which we are about to consider in its practical applications. In all our business relations, and in fact in our general conduct, so far as that term would apply to one as a member of a community and a citizen, we are controlled in our action by absolute, and in some instances possibly, by arbitrary regulations or laws, with which perhaps we may be wholly unfamiliar, but which are none the less binding and positive in their exactions because we have neglected to familiarize ourselves with their requirements.
It is a rule of law, that ignorance of it excuses no one. For this reason ignorance is never pleaded in court as an answer to civil or criminal allegations of any sort. This rule presupposes a knowledge of the law on the part of every citizen. While, strictly speaking, this is impossible and in reality but a fiction, any other provision would be fraught with danger. Although, through the observance of this rule, doubtless, hardships are occasioned—as in fact must result from the enforcement of any law, however wise—it is notwithstanding that, a very necessary and strictly proper presumption. Were it to be otherwise, any attempt to enforce obligations against dishonest parties or to punish crime would prove ineffectual, because recourse would always be had to this defense. Thus all law would be a nullity.
There is fortunately a safe rule to be adopted as a guide for our conduct, which in the main, if strictly obeyed, will obviate the seeming hardship. Notwithstanding the fact that all inhibitions do not involve an absolute wrong or right, that all enforcements of law are not with justice, yet if a strict standard of right and honorable dealings characterize individual action and conduct, for those who adopt such a course there is but slight possibility that there is any especial oppression in store.
But wrong doing exists. The remedy is existing law. What is it, which as such we are to obey, and which we may safely designate as the principle of personal protection?
The nucleus of the now voluminous laws of our country was the well established laws, customs and usages of the American colonies of Great Britain, when their independence was secured. At that time the laws of Great Britain had become so generally interwoven into our judicature as well as into our business customs and relations, that the introduction of a wholly new system of laws would have proved disastrous, even if it could have been accomplished.
Since, in part, law is the outgrowth of customs and ways, as we shall see, to have attempted the engrafting of a wholly new system would have been equivalent to an attempt to change at once the habits and characteristics of a people.
The familiarity of the colonists with the then existing law, and its adaptability to the then commercial transactions, made it a desirable nucleus—already for our people, with which they might inaugurate a system of their own.
This, then, was accepted as the common law of the country at that time. But however well adapted the then existing laws may have been to the wants of the people and commerce, ever changing conditions of life and ever increasing business complications rendered additions and new provisions necessary. These changes were made necessary and were fostered by statute law.
Statute law is the result of the deliberations of legislative assemblies. Each state has its own legislature and statute law, as has the national government. The general government being the superior power, its laws must be recognized as superior to state laws, that is, there can be no state law inconsistent with the laws of the national government. The state legislatures and national congress have power to make laws, and whatever is declared by these bodies to be the supreme law of the land, for the government of the individual and the protection of property, providing it does not conflict with the provisions of the national and state constitutions respectively, must be obeyed as such.
This then is statute law: An enactment regarding the rights of persons or property, passed by representatives of the people in legislature assembled.
When a question has arisen concerning which statute law has no provisions, or some regular enactment is so worded that its meaning is doubtful and extremely liable to be misunderstood, to compensate for the lack in the one instance and to interpret properly the intention of the law makers in the other, we resort to the common law, fairly said to be “the accumulated wisdom of centuries.” Analogy will lead us to conclude, and correctly, that this is the conservative element of the system—the origin of which we have previously alluded to in part—to which we would add the customs and usages which have, since our recognition as an independent people, received the sanction of our courts, and to become acquainted with which reference must be made to the published reports of the courts, known as the “U. S. Reports,” “Maine Reports,” etc.
That the common law may remain to a great extent unchangeable, much respect is paid to the decisions of the courts, by others than those by which they were enunciated, for it has ever been deemed better that a precedent be respected, even if it be not the soundest law, than to have what might seem to be better logic at the expense of a varying precedent. Then we conclude, that though legislatures be radical in the change of existing laws, yet in the task of applying or interpreting such laws, so changed, courts are generally very conservative. It will thus be seen that the rights of the people are not liable to be unwarrantably abridged or destroyed by any uncertain movement of a day.
By referring to our national and state constitutions, our readers will see that the powers of both national and state governments are divided into three departments, known as the executive, legislative and judicial, each of which is distinct from the others, although they work in harmony in the enactment and enforcement of the laws. The courts come under the head of that last named, and their duties have been demonstrated to be “to define, declare and apply the laws.”
Of this common and statute law a very essential part is that which is applicable to business, or commercial law, or, as it is generally denominated in the books, the “Law-Merchant.” Much of the law bearing upon this subject is the old common law, with the enlargements consequent upon an increased commercial activity. Here it is that we find many of the customs and usages of merchants gradually merging into recognized law. The three “days of grace” allowed on all commercial paper is but a common illustration of this, similar in origin to many customs in all departments of trade, which might easily be cited, and which were in their inception of very limited significance, but which have continually been receiving a more extended recognition, until we find them clothed with all the insignia of authority.
These customs and usages we shall have occasion to give more extended explanations as we touch upon the several sub-divisions of our topic. There are a few technical words which we shall find it convenient to use. Prof. Greenleaf clearly expresses the reason for this, as follows:
“A great deal of the language of every art or science or profession is technical (indeed, technical means belonging to some art), and is peculiar to it, and may not be understood by those who do not pursue the business to which it belongs. This is as true of the law as of everything else.… A good instance of this is in those words which end in er (or or) and in ee. As for example, promisor or promisee, vendor and vendee, indorser and indorsee. These terminations are derived from the Norman-French, which was for a long time the language of the courts and of the law of England. And it might seem that we had just as good terminations in English, in er and ed, which mean the same thing. But this is not so. Originally they meant the same thing, but they do not now, for both er and ee are applied, in law, to persons, and ed to things, so that we want all three terminations. For example, indorser means the man who indorses; indorsee the man to whom the indorsement is made; but the note itself we say is indorsed. So vendor means the man who sells, vendee the man to whom something is sold, and the thing sold is vended.”
In regard to the phrase “presumption of law,” to which we may have occasion to refer. The significance of this phrase is this: Under certain conditions, without absolute proof of the matter concerning which some conclusion is sought, the law will presume to interpret the intention or acts of persons. For instance, regarding criminal procedure, one is presumed to be innocent until he is proved to be guilty. Presumptions prevail only when proof is lacking.
A contract has been aptly defined to be “an agreement to do or not to do some particular thing.” It may be verbal or in writing. If the conditions of a contract, whether verbal or written, be expressly stated and agreed upon, it is then termed an expressed contract. If on the other hand there are no well defined and specific agreements regarding the undertaking or the consideration to be paid for its accomplishment, it is called an implied contract.
The conditions of an expressed contract must be strictly complied with, and the parties to it are bound to faithfully observe the same, however onerous may be the burden, while the conditions of an implied contract not being agreed upon specifically, are such as custom may dictate. As an illustration of this: A agrees to pay B two dollars per day for labor. This is expressed, so far as the rate of wages is concerned; but the number of hours that shall be taken to constitute a day’s work is not agreed upon, and must be determined by implication. As a result, the question would be settled by the custom in such matters which obtained in the place where the contract was made. Or, if A engages B to undertake the building of a cottage, with no stipulations regarding the wages to be paid, B when the work is completed can recover for his compensation whatever is proved to be the usual and customary remuneration paid men in the same business and possessed of equal skill. The enforcement of obligations is no less strict when the standing of the contract is implied than when expressed, after determining what the obligations of the parties are.
The elements of a contract are parties, consideration, subject matter, mutual assent and time.
Parties.—Two or more competent persons may make a legal contract. Competent persons, it will be observed. What constitutes competency? Generally, legal age and sound mind; while minority, insanity, idiocy, intoxication and coverture are said to be the conditions of incompetency. With the exception of a few states where females become of age at eighteen, the legal age is twenty-one years. A consideration of the conditions of incompetency will sufficiently explain the requisites of competency negatively. Minors, or those who have not attained legal age, or infants as the law denominates them, are considered incompetent because of inexperience, and a fair presumption that unprincipled parties might take unfair advantage of them, and lead them into business complications which a riper experience would disapprove. The contracts of a minor approved by him when he becomes of age are binding, however; so that it will be observed, such contracts are not absolutely void, only voidable at the discretion of the minor. If an infant makes a transfer of real estate he may, on reaching his majority, compel the purchaser to reconvey the property, by returning to him the purchase money. The law would not permit him to retain the purchase price and compel the re-transfer, because it is not the policy of the law to assist the minor in his fraudulent purposes, but only to protect him from the impositions of those skilled in wicked devices. There are some contracts which an infant can not disclaim, viz.: such as are for necessaries. It is something of a question to determine what are necessaries; but the minor’s fortune and social position must be the guide, for where sufficient food and clothes might be all that would be termed necessaries for one, for another by fortune more favored, “equipage, dress and entertainments” would be considered just as essential.
Unsound Mind.—Insanity, or a mind deranged; idiocy, or the lack of a mind; intoxication, or a mind so beclouded as to be incapable of understandingly judging of the merits of an ordinary business transaction; a mind in any one of these conditions is unsound, and its possessor an incompetent.
Coverture, or marriage, by the common law made woman an incompetent party, and she was thus precluded from legally contracting. By statutory enactments nearly all of the states have changed this, so that a married woman may now do business, contract debts as though unmarried, and also hold property in her own right. The ancient barbarous theory that marriage ought to annul a woman’s right to property in her own name and almost deny her individual existence is nearly a relic, an error almost of the past.
Consideration.—Any consideration is sufficient to sustain a contract, provided it be not illegal, or that which is prohibited by law; immoral, or that which contravenes the moral law; and provided the contract was born of good faith, and not tainted by fraud. A contract into which any element of fraud has entered receives no countenance at the law. However favorable stipulations may seem, a fraudulent intent, proved, will nullify the contract.
The Subject Matter, or that concerning which the contract is made must not be illegal, immoral or impossible. The reasons for this are apparent, since it would controvert the very object of legal rights and public policy if an illegal or immoral undertaking were permitted to enter into a contract as a thing to be done and as a recognized right to be enforced; or, if a stipulation were permitted to stand, which called for the doing of that which is impossible.
Mutual assent is an essential element. “It takes two to make a trade.” There must be an agreement of minds between contracting parties as to what is to be done, and how, and in consideration of what; and this agreement must be at the same time, or to state it in a legal fashion, “minds must meet.”
The time stated for the performance of a contract should be agreed upon. In case it is not, then it must be accomplished within a reasonable time.
What is a reasonable time must be determined by the special circumstances of each individual case. It is with this as with other elements of a contract if not fully understood and agreed upon, the assistance of customs and usages must be invoked to settle the disputed point.
Statute of Frauds.—This is an old English statute, adopted, slightly modified, by the several states. It requires the following contracts to be in writing: For the conveyance of real estate; lease of land for more than one year; in consideration of marriage; to answer for the debt, default or wrongful act of another; not to be performed within one year; for the sale of personal property of a certain value (by most states placed at fifty dollars), unless the sale be by auction, or part of the purchase money be paid, or part of the goods delivered at the time of sale.