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Preface
Confirming Pages

We wrote this book because our primary sense of who we are as professionals is that we are
teachers. We play various roles in our careers, but we are especially dedicated to our students. We
want them
30 to listen, read, create, Partand
1 evaluate
The Legal more
Environmenteffectively as a result of their experience in a
of Business
business law class. Above all, we want them to sense the importance and excitement of the law.
We want them to be aware that business resides in an atmosphere of legal rights and responsibilities.
The morein personam
they have an understanding court system, a court’s
of relevant law, the more theirjurisdiction
in personam usuallywill
business activities extends to the state’s borders. In the fed-
flourish.
jurisdiction eral system, eachthe
court’s jurisdiction extends across itsnot
geographic district.
We The
triedpower
to construct
of a court to
a book that contains basics of business law but does get bogged
down inrequire
the kind of details
a party (usually that A court
would be acquires
more in personam
appropriate in jurisdiction
an upper-level overlawa person
class. (the plaintiff) when she files a law-
Thisthe4th editionorcontinues
defendant) a wit- suit with the court. The court acquires jurisdiction
and advances the pedagogical strengths of earlier editions. As dif- over the person the plaintiff is suing (the
ness to come before the
ficult ascourt.
it isThe
to court
recall defendant) when it gives him a copy of the
what it is like to know almost nothing about business law, we tried repeat- complaint and a summons. The complaint specifies
must
the factual and legal basis for the lawsuit and the relief the plaintiff seeks. The summons is a
edly tohave
force ourselves
personal jurisdic-to remember that the text is for students, not for us to reveal our previous
tion to enforce its judg- court order that notifies the defendant of the lawsuit and explains how and when to respond to
training. Toward that end, we have simplified and clarified as often as we could.
ments or orders against the complaint.
Ourapedagogical
party. In personam features that provide the distinctive value of this book. Each feature stands
Service of process is the procedure by which courts present these documents to defendants.
by itselfjurisdiction
as an aid to theonly
extends kind of learning we hope to encourage. Yet the features are also a cohe-
to the state’s borders in Traditionally, courts used personal service: An officer of the court handed the summons and
sive unit,
the contributing
state court system both to complaint
the liberal toeducation of the students
the defendant. Over time, whohowever,
read it and to their
courts beganskills
to employ other methods of
as decision makers
and across in a marketservice,
the court’s economy. including residential service, in which a court representative leaves the summons
Specifically,
geographic we provide
district in the what competing texts deliver, an examination of the basic questions,
and complaint with a responsible adult at the defendant’s home, and service by certified or
federal system.
concepts, and legal rules of business ordinary law. Our text must address the power and authority of
mail.
plaintiff
constitutions, statutes, case law, Increasingly,
The person or party who
and treaties courts
as sources of law. Together,
are authorizing service by thee-mail,
variousespecially
elementsin situations where it is dif-
of whatinitiates
we call “the law”
a lawsuit (also make up the foundation and structure of the market
ficult to find the defendant’s physical address. The reasons for exchange process.
recognizing this form of service
Decisions
known astoantrade action)and produce require trust—trust that consumers, firms, workers, finan-
are that (1) it is reasonably calculated to provide notice of the pending action, and (2) e-mail is
before a court by filing
cial institutions,
a complaint with andthe asset owners will do as they
not substantially less promise
likely to andprovidethat notice
violationsthan of thesuch promises
customary methods of providing notice.
will beclerk
unacceptable
of the court againstin the marketplace.
Recently, a Without guarantees
few jurisdictions havethatevenpromises will be
recognized kept, through
service market Facebook accounts when
the defendant(s).
exchanges would grind traditional methods of service did not work.1
Also to a halt. Business law provides these guarantees and the boundaries
known as claimant or
within complainant.
which certain promises can be made
If the and enforced.
defendant is a corporation, courts generally serve either the president of the corporation
Market decisions are madeor
defendant inan agent whompersistently
a context—a the corporation has appointed
changing context. to The receive
law, inservice.
turn, isMost states require corpora-
dynamic in response.
The person or party New tions to
technologies appoint
and an agent
business for service
practices when
bring they
new incorporate.
disputes over Corporations
rights are subject to in per-
and responsibilities
against whom a civil in aorbusiness sonam jurisdiction in three locations: the state of their incorporation, the location of their main
setting.
criminal lawsuit is filed in offices, and the geographic areas in which they conduct business.
We aknewcourt ofthat
law. the 4th edition needed to be different from the 3rd because law is evolving.
Certaincomplaint
areas of business law expereince Courts have in personam
recurring jurisdiction
re-examination andover persons
revision. Foronly withinwe
example, a specific geographic region.
createdAnew material for this In the emphasizing
edition, past, a state courtprivacy,could not and
cyber, acquire in personam
imigration law. In jurisdiction
addition, over out-of-state defen-
formal written docu-
each author
ment that begins ato refreshdants
pledged unless it with
our chapters served the defendants
recent developments within inthe court’slaw.
business home state. Thus, defendants who injured
civil lawsuit; contains
Future business leaders need plaintiffs
knowledge couldofevade
existing legalbusiness
action by lawleaving
as well theasstate
a setand of remaining
skills per- outside its borders.
the plaintiff’s list of To alleviate this problem, most states have enacted long-arm statutes that enable the court
mittingallegations
them to againstadjust the efficiently and effectively to new legal issues as they arise over the course
to serve defendants outside the state as long as the defendant has sufficient minimum contacts
of theirdefendant
careers.along with
the damages the plaintiff within the state. Each state has its own minimum-contact requirements, but most state statutes
We seeks.
are excited about the contents of our features and want to explain the function of each of
hold that acts such as committing a tort or doing business in the state are sufficient to allow the
them insummons
preparing students for leadership positions in business.
state to serve a defendant. In the Caterpillar case, the company sold products in Kentucky, and
WHAT IF . . .
A legal document issued
by a court and addressed
its products caused an injury in that state. These two facts were sufficient minimum contacts to
to a defendant that noti- allow the Kentucky court to serve Caterpillar, even though it was an out-of-state company.
Businessfies law
him or ishera set
of theoflaw-
rules and regulations that modern managers must obey, but those rules
and regulations
suit and how apply and when in specific situations to particular facts. Those facts create a special
to respond to the com-
setting,plaint.
oneA not exactly
summons may
like
any other
be used business
in both civil decision.
and BUT WHAT IF . . .
We addedcriminala But What If fea- WHAT IF THE FACTS OF THE CASE OPENER WERE DIFFERENT?
proceedings.

ture tolong-arm
highlight for readers
statute
Recall that in the Case Opener the company sold products in Kentucky and its products caused an
the need to thinkenables
A statute that about the
a court to obtain juris- injury in that state. Let’s say in the Case Opener that Caterpillar did not sell products in the state of
implications of specific
diction against an out- facts Kentucky, but its products did cause an injury in that state. Could a Kentucky court still exercise in
for theof-state
application
defendantof as busi-
personam jurisdiction over Caterpillar and serve the company? Why?
long as the defendant
ness laws.
has sufficient minimum
contacts within the state,
such as committing a tort vii
or doing business in the
state. Because of the increasing purchase of products over the Internet, it is sometimes difficult
to know whether the court will be able to obtain in personam jurisdiction over the seller of
a defective product. Case 3-1 illustrates how the courts are increasingly responding to this
viii Preface

In addition, this feature provides a reminder that applying the law is a complex activity, requir-
ing a thorough knowledge of the law. An alert business manager needs to consider how each of
the facts in the dilemma she or he faces may have legal implications that are not always clear
when simply reading the law for the first time. The facts of a case guide the application.
Those who have formal legal training know that a common form of teaching law is to pose
hypotheticals. The But What If feature mimics that approach.
In other words, at first glance the law seems First
to point
Pages in a certain direction, thereby giving business
decision makers confidence that they know what is legally permissible or required, but changing a
single fact can sometimes dramatically alter the eventual application of the law. An awareness of the
significance of facts in the law can greatly enhance legal compliance and save firms huge expenses.

GLOBAL Context Global Boxes

The Court Structure in the Criminal Division hears appeals on sentences and This feature highlights the emerging,
in England convictions.
Civil cases are first heard in the county courts (for
interconnected market. Where relevant,
Even though we trace the roots minor claims) or the high court, which is divided into three the chapters contain Global Context
of the U.S. legal system back to England, changes have divisions: Queen’s Bench, Family, and Chancery. First Pages
Cases
occurred in both countries’ court structures; as a result, may be appealed to the court of appeal (Civil Division). boxes. Because so many market deci-
the court structures in the United States and England Cases may also be appealed from the county court to the sions are made in an international
share similarities but also have distinct features. The low- high court.
est criminal courts in England are the magistrates courts, The House of Lords is the supreme court of appeal. Its context, learners need to familiarize
which
328 hear minor offenses.Part More serious
3 Domestic andcases are tried
International cases are heard by up to 13 senior judges known as law
Sales Law
before a judge and jury in the crown court, which also lords. In addition to the courts, there are specialized tri-
themselves with the likelihood that a
hears cases appealed from the magistrates courts on factual bunals, which hear appeals on decisions made by various
Consider Case 16-1, which provides an illustration of a situation in which the UCC’s version
particular legal principle essential to
points. The high court (in the Queen’s Branch Division) public bodies and government departments in areas such as
of the perfect tender rule was relevant when compared to the common law rule of material breach
hears appeals on points under
of law,theand the court of appeal employment, immigration, social
doing business in one country may not
doctrine of substantial performance. In the Case Opener, doessecurity, tax,
the tender of and land.
a puppy
that is unhealthy constitute substantial performance under common law and perfect tender under be appropriate in other countries. The
the UCC? What about under the CISG?
Global Context boxes illustrate how
unique the law in a certain country often
standing Threshold Requirements is. After reading these stories of differ-
ALASKA PACIFIC TRADING CO. v. EAGON FOREST PRODUCTS
The legal right of a party
CASE 16-1LO 3-3
or an individual to bring INC. WASHINGTON APPELLATE DIVISION 1
What are the threshold requirements that must be met before a ence, readers will certainly understand
better the need to discover relevant law
a lawsuit by demonstrat-
ing to the court sufficient court will hear a case?
933 P.2d 417 (1997)
connection to and harm
from the law or action Before a case makes it to court, it must meet three threshold requirements. These requirements in all jurisdictions where their market
challenged (i.e., the plain- ensure that Company
courts hear(ALPAC)
only cases
andthatREASONING:
genuinely require In adjudication. The three requirements are
FACTS:
tiff has Alaska Pacific
to demonstrate Trading the court’s own words: decisions have legal implications.
thatEagon Forest
he or she Productsstanding,
is harmed case ortocontroversy,
Inc. contracted buy and sell and
rawripeness (see Exhibit 3-5).
or will be ALPAC
logs. harmed). and Eagon engaged in months of communica- As a contract for the sale of goods, this contract is gov-
erned by the Uniform Commercial Code, Article II (UCC
We believe that students learn
Otherwise, the court will
tionsthe
dismiss about
case,aruling Standing
shipment of 15,000 cubic meters of logs from II) which replaced the common law of material breach, on innumerable valuable lessons about
thatArgentina
the plaintiff to Korea between the end of July and the end
“lacks which ALPAC relies, with the “perfect tender” rule. Under
A person who has the legalALPAC
right to bring an action in court has standing (or standing to sue).
standing”
suit.
to bring
of August 1993.the The delivery date passed without this rule, “If the goods or the tender of delivery fail in any
For a person to have standing, the outcome of a case must personally affect him or her. Thus, if American business law by contrast-
shipping the logs. Eagon canceled the contract, alleg- respect to conform to the contract, the buyer may . . . reject
ing that ALPAC had breached the agreement by failing to the whole.” . . . Both the plain language of the rule and the ing the concepts of our business law
official comments clearly state that, if the tender of the
Exhibit
deliver.3-5
ALPAC alleged that its failure to deliver was not a
material breach and that the parties had modified the deliv- goods differs
Threshold from the terms of the contract in any way,
Requirements
system with those of our primary trad-
Threshold
ery date. Alternatively, ALPAC argued that Eagon breached
Requirements
the seller breaches the contract and the buyer is released
from its duty to accept the goods. ing partners. We typically use Canada,
the contract by failing to provide adequate assurances or
Japan, China, Russia, Mexico, and the
repudiating the contract. The miscommunication between
the parties occurred after the market for logs began to
soften, making the contract less attractive to Eagon. ALPAC
1 2 3
DECISION AND REMEDY: The court applied the lit-
eral language of the UCC, holding that the perfect tender
rule applied and that ALPAC’s failure to deliver was a
European Union for our comparisons
was reluctant to ship the goods because it was concerned
Standing breach
Case orofControversy
contract. Ripeness
because modern business managers will
that Eagon might not accept the shipment. However, Eagon
never stated that it would not accept the cargo. SIGNIFICANCE OF THE CASE: Though difficult to more likely be interacting with the law
measure at times,
betweenthe Aperfect
in those particular jurisdictions.
Actual or imminent injury Adverse relationship decision istender rule
able to affect the is a departure
parties immediately
ISSUE: The question for the court is whether toinapply
fact
the from plaintiff and defendant
the common law rule of substantial performance. Any
Injury traceable to actions of Actions of one party give rise
common law doctrine of material breach or thedefendant
UCC doc- deviation to a legalfrom
disputethe contract may indeed constitute a breach
trine of perfect tender. Injury will be redressed by ofCourt
favorable decision
the decision
perfect tender
is able
resolve the dispute
to rule, materiality notwithstanding.
Critical Thinking
CRITICAL THINKING
Go After each case in the book, we have pro-
vided critical-thinking questions to high-
Here, Eagon got lucky. The company got out of a contract thatCase wascan
unfavorable
proceed totocourt
it, given the softening market for logs.
In what way did the judge simplify the case? Is it fair to say the judge oversimplified the case? light the need to think critically about the
40
reasoning the court used. In addition, we
ETHICAL DECISION MAKING
include in every chapter a Point/Counter-
What ethical norm or value underlies the judge’s decision? Explain. point problem that encourages the reader
to evaluate the conflicting reasoning sur-
rounding a key issue in the chapter.
Exceptions But to the wePerfect
do much Tender moreRule than just ask a lot of critical-thinking questions at particular locations
Untitled-4 40 09/20/17 03:20 PM

throughout
The perfect tender rule is not asthe chapters.
inflexible WeAlthough
as it appears. encourage the demands
the rule itself use ofperfec-
a step-by-step critical thinking approach that has been
tion, both courts and UCC drafters have created exceptions that reduce the rule’s rigidity. These
exceptions limit the seller’s obligation to deliver conforming goods and/or limit the buyer’s We do not just repeatedly urge students to think
developed and used in classrooms in many countries.
critically. Instead, we describe for them what is meant by that phrase in the context of business law.

kub1710x_ch16_324-343.indd 328 09/08/17 04:16 PM

 First Pages
Preface ix

We include this step-by-step approach

in Appendix 1A at the end of Chapter 1.
Instructors who wish to emphasize criti-
cal thinking can use that appendix as a
structured approach for learning how to
evaluate legal reasoning.
Ethical Reasoning
Our book emphasizes consideration of
all stakeholder interests in every market
decision. Business ethics should never be
an afterthought or something firms con-
sider only because they think they must.
In response to requests from our users,
we created a separate chapter, Chapter 2,
devoted entirely to business ethics. We
expanded the discussion of business eth-
ics while simplifying the framework for
applying ethical reasoning.
BUSINESS Ethics Flashpoint 2.5
Dofasco believes that its focus on a safe and healthy
The Dofasco Steel Company’s Approach
to Workers workplace has improved its business. Specifically, the
Dofasco is the second-largest steel producer in Canada and
company claims that its policies have reduced lost time
associated with work injuries and minimized Workers
sells a wide range of steel products. In the 1980s, Dofasco Safety Insurance Board payments.
experienced shrinking profits and decided to change its
approach to business.
In addition to focusing on worker safety and well-
being, Dofasco also has a history of being environmentally
One of the ways that Dofasco changed was in its approach responsible. For example, Dofasco was the first corpo-
to its workers. Specifically, Dofasco attempted to implement
a philosophy taking into account the whole person at work.
ration in Canada voluntarily to sign an Environmental
Management Agreement with Environment Canada and
In other words, this approach sought to include wellness as Ontario’s Ministry of the Environment. In this agreement,
an important characteristic of the employee experience.
In line with this new philosophy, the Dofasco manage-
Dofasco made commitments to abide by specific air and
water quality standards and sustainable energy use and
ment claimed it would abide by the following policy state- waste management. Through this agreement, Dofasco
ment issued in its 1996 guides of the company’s health,
safety, and lifestyle activities: “At Dofasco, there is nothing
expressed its commitment to the community.
In addition, Dofasco created a Sustainable Development
more important than the health and safety of our people.” Strategy Team and is a founding sponsor of the Sustainable
Consistent with this policy statement, Dofasco provided Enterprise Academy at York University’s Schulich School
training for employees in problem solving, manufacturing of Business. The mission of this academy is to provide
processes, and customer service. Dofasco also built on its
tradition of providing its workers with ergonomic and fit-
executives with training in how to manage businesses with
an eye for sustainability.
ness resources as well as preventive medical services. Dofasco’s organizational practices resulted in being
Yet another way that Dofasco sought to focus its ener- named one of the world’s most sustainable companies in
gies on employee needs was by encouraging healthy life- the Dow Jones Sustainability Group Index.
style practices at work. A healthy lifestyle at work would
be achieved by preventing workplace accidents and main-
Sources: Dan Corbett, “Excellence in Canada: Healthy Organizations—Achieve
Results by Acting Responsibly,” Journal of Business Ethics 55, no. 2 (December
taining a safe environment. In addition, Dofasco assessed
2004), pp. 124, 130; Joan Enric Ricart, et. al. “The Sustainable Enterprise: Learning
employee needs in response to worker suggestions.
from DJSI Leaders”, Fundacion BBVA (2005).

Instead, business ethics is what provides

the social legitimacy for markets, what distinguishes markets from the life of the jungle. Although
market decisions are calculating and purposeful,Point/Counterpoint
they must at the same time reflect awareness that the
good and the right provide social borders that elevate those
The Social decisions
Responsibility above simple greed and egoism.
of Corporations
Ethical discussion focuses on the basic observation that we are socially and globally interdepen-
dent as entrepreneurs, asset owners, workers, businesspeople,Do a Firm’s and consumers.
Ethical ResponsibilitiesOur inescapable
Extend Beyondcon- Maximization of Profits?

tact with one another requires our aspirations to be defined, at least NOin part, by their impact on others. YES
Our text has several ethical reasoning possibilities in each chapter. But for the reader
The basic purpose of a business firm is to provide a ser-
to use
Communities have dozens of needs that, when met,
this emphasis requires a practical step-by-step approach.
vice or product In other words,
to consumers that makesstudents
profits for its need
owners. Capitalist theory depends on the incentive of
more
assist citizensthanin flourishing. What sense does it make
to take an important sector like corporate America
just a discussion about values or ethics. the profit motive as a guarantee that firms will meet the and deny them the opportunity to assist in meet-
desires of consumers. Please those consumers, and the
They need to have some sense that the discussion
market is is headed institution.
an outstanding somewhere. Displease They
them, want to know,
ing these needs? When a computer firm decides to
enhance the educational mission of the town where
“How will my behavior be any more ethical after reliesIonhave read the chapter
will seek toand
and you go out of business. This sanitizing process
the assumption that firms participated
maximize they produce in their
the product by giving computers to
the school, they do so in an environment where
class discussions?” Our text answers their question.
profits. When firms decide for themselves that they will
have goals that conflict with profit maximization, they schools are often pinched for funds. Those students
undercut the meaning and the benefits of capitalism. need computers, and they would take them from
Chapter 2 provides a clear explanation of our approach—an
Democracies haveapproach
a process for that students
deciding which of can use who
anyone on isa kind enough to provide them.
regular basis. The language and organization ofthe countless potential good deeds a community will
our
pledge tomodel of ethical
do. Tax money reasoning
is never bountiful enough leans
to implicitly
on standard ethical theories, but it meets the challenge of a fast-paced business world. It pushes
stakeholders to the forefront of market decisions,
24 where they belong, and does so in a manner that

is both powerful and doable without becoming tedious.

Business ethics serve as the guidelines we use to shape the world we wish to create. As such,
they provide guidance for the kind of business behavior we want to reinforce. After each case
First Pages
discussion, we pause to think about the ethics of business law by asking a question derived from
Untitled-3 24 09/20/17 02:56 PM

the practical approach to business ethics developed in Chapter 2.

E-Commerce Boxes E-COMMERCE and the Law

A central feature of modern business The Sliding-Scale Standard for Internet
decisions is new technology, specifi- Transactions
cally the rapid spread of electronic com- Does a business that has Internet contact with a plaintiff
in a different state satisfy the minimum-contacts standard?
merce. This development has created A federal district court established the following
sliding-scale standard in a 1997 case:*
new challenges and opportunities that
[T]he likelihood that personal jurisdiction can be consti-
were unforeseeable until very recently. tutionally exercised is directly proportionate to the nature
and quality of commercial activity that an entity con-
By including boxes that call attention to ducts over the Internet. This sliding scale is consistent
these challenges, we think we can con- with well developed personal jurisdiction principles.
At one end of the spectrum are situations when a
vince students most effectively of the defendant clearly does business over the Internet. If the
transmission of computer files over the Internet, personal
jurisdiction is proper.
At the opposite end are situations when a defendant has
simply posted information on an Internet website that is
accessible to users in foreign jurisdictions. A passive web-
site that does little more than make information available
to those who are interested in it is not grounds for the exer-
cise of personal jurisdiction.
The middle ground is occupied by interactive websites
through which a user can exchange information with the
host computer. In these cases, the exercise of jurisdiction
is determined by examining the level of interactivity and
the commercial nature of the exchange of information that
occurs on the website.

pervasive influence of this new, compli- defendant enters into contracts with residents of a for-
eign jurisdiction that involve the knowing and repeated *
Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 at 1124 (1997).

cating aspect of business decisions.

If a defendant has property in a state, a plaintiff may file suit against the defendant’s property
instead of against the owner. For example, suppose a Utah resident had not paid property taxes
in rem jurisdiction on a piece of land she owned in Idaho. Idaho courts have in rem jurisdiction (Latin for “juris-
The power of a court diction over the thing”) over the property. Thus, an Idaho state court has the power to seize the
over the property or
property and sell it to pay the property taxes in an in rem proceeding.
status of an out-of-state
 Online Assignments and Resources

We have designed our features around the things we do in our classes to

encourage excitement about business law. We believe they provide Business
Law Plus. We also have a variety of supplementary material available for
instructors, to aid in course development, and for students, to provide
additional study.

McGraw-Hill Education has partnered with Roger CPA

Review, a global leader in CPA Exam preparation, to provide students a smooth transition from
the accounting classroom to successful completion of the CPA Exam. While many aspiring
accountants wait until they have completed their academic studies to begin preparing for the
CPA Exam, research shows that those who become familiar with exam content earlier in the pro-
cess have a stronger chance of successfully passing the CPA Exam. Accordingly, students using
these McGraw-Hill materials will have access to sample CPA Exam Multiple-Choice questions
and Task-based Simulations from Roger CPA Review, with expert-written explanations and solu-
tions. All questions are either directly from the AICPA or are modeled on AICPA questions that
appear in the exam. Task-based Simulations are delivered via the Roger CPA Review p­ latform,
which mirrors the look, feel and functionality of the actual exam. McGraw-Hill ­Education and
Roger CPA Review are dedicated to supporting every accounting student along their journey,
ultimately helping them achieve career success in the accounting profession. For more infor-
mation about the full Roger CPA Review program, exam requirements and exam content, visit
www.rogercpareview.com.

McGraw-Hill Connect’s SmartBook® makes study time as pro-

ductive and efficient as possible. SmartBook identifies and closes knowledge gaps through a
continually adapting reading experience that highlights portions of the content based on com-
prehension. Students have a visual representation of the areas in which they have demonstrated
understanding, as well as areas in which they need to focus. The result? More confidence, better
grades, and greater success.

Interactive Applications McGraw-Hill Connect’s Interactive Applications offer a vari-

ety of automatically graded exercises that require students to apply key ­concepts. Whether the
assignment includes a click and drag, video case, or decision generator, these applications pro-
vide instant feedback and progress tracking for students and detailed results for the instructor.

Instructor’s Manual Written by our co-author Neil Browne, this resource includes lecture
notes, case briefs, answers to all questions in each chapter, assignment ideas, teaching assistance
(emphasizing practical tips that new or part-time teachers can try right away), and suggested handouts.

Test Bank and Quizzes Our test bank and quizzes contain a variety of true/false, multiple-
choice, and essay questions as well as scenario-based questions, which are application-based and
use a situation described in a narrative, with three to five multiple-choice test questions based on
the situation.

PowerPoint Presentation Slides This edition’s revised PowerPoints contain an easy-to-

follow lecture outline summarizing key points for every chapter.

x
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xiv Preface

Important Changes in This Edition

Following are the updates that were made to the 4th edition. Note that we have multiple chapters
and cases where we integrated two new themes: privacy law and small business.

CHAPTER 1: An Introduction to the Fundamentals of Dynamic Business Law

∙ New example of civil damages in which Mississippi Valley Silica Co. was ordered to pay a
plaintiff $9 million because the court ruled that it sold sand to plaintiff’s employer with the
knowledge that using that sand on a regular basis would expose a worker to a form of cancer,
yet Mississippi Valley did not alert those who bought the sand about the risk.
∙ In the section about Global and Comparative Law, added a discussion of WTO to GATT, as
reviewers suggested. In 1995, the World Trade Organization was created to replace GATT.
The WTO stimulates negotiations among member nations to reduce barriers to international
trade. The WTO attempts to enforce trade agreements governing trade among its 160 mem-
ber nations. In this role, it serves as a world court adjudicating trade disagreements that
threaten to disrupt international trade.

CHAPTER 2: Business Ethics and Social Responsibility

∙ Added Exhibit 2-1: Business Ethics Issues Take Many Forms to provide a sense of the scope
of issues that stimulate ethical questions.
∙ Added a Point/Counterpoint to the chapter: The Social Responsibility of Corporations.

CHAPTER 3: The U.S. Legal System and Alternative Dispute Resolution

∙ To highlight how technology is changing service of process, this chapter contains a new sec-
tion about service by email, and followed that section with new Case 3-3: Atlantic Marine
Construction Company, Inc. V. United States District Court for the Western District of
Texas, et al, which focuses on the same topic.
∙ Added new Figure 3-6; Steps in a Civil Law Suit, to summarize the numerous steps in a civil
action.
∙ Added new Figure 3-7; Forms of ADR, to review the different ADR methods, at the sugges-
tion of reviewers.
∙ Added new Point/Counterpoint related to the updated material about service of process:
Should Courts Increase Their Use of Service of Process by Social Media?

CHAPTER 4: Administrative Law

∙ Added new Case Nugget in “How are Agencies Run” section:
∙ Perez v. Mortgage Bankers Association.
∙ Added new Case 4-1: Doe v. United States SEC, on privacy; this case demonstrates that
agencies have broad investigative powers, more so than parties in a typical civil case.
∙ Added new Case 4-4: Wilfredo Golez v. John E. Potter, Postmaster General, U.S. Postal Ser-
vice, on privacy; this case demonstrates that absent a compelling need, individuals do retain
a right to privacy in information related to their employment records.
∙ Added new Point/Counterpoint: Should Agencies Be Eliminated? (small business)

CHAPTER 5: Constitutional Law

∙ Updated discussion of freedom of religion and its clash with part of the Affordable Care Act
using the Hobby Lobby case.
∙ Added new Case 5-3: David Leon Riley v. California and United States v. Wurie, that
explains how the court addresses the privacy related issue of whether the warrantless seizure
of a cell phone violates the Fourth Amendment.
∙ Added new Case Nugget: Obergefell et al. v. Hodges, to update what has occurred with
respect to the constitutionality of same sex marriage.
 Preface xv

∙ Updated the Point/Counterpoint to Should Warrantless Wiretapping Be Allowed under the

Fourth Amendment? to reflect the increasing interest in privacy issues.

CHAPTER 6: Criminal Law and Business

∙ Updated Case Opener to: A Questionable Stock Investment.
∙ Added new Case 6-1:United States of America V. Thomas Tanke to illustrate how the courts
address the second element of mail fraud.

CHAPTER 7: Tort Law

∙ Added a new section about privacy torts to reflect the increasing interest in these types of torts.
∙ Added new Case 7-2: Swobota v. Fontanetta, to illustrate the doctrine of res ipsa loquitur.
∙ Added new Point/Counterpoint: Should the Creators of Violent Media Owe a Duty of Care
to Victims of Crimes Based on Violent Media? This issue may be more interesting to our
students because a lot of them play video games and watch movies containing violence.

CHAPTER 8: Real, Personal, and Intellectual Property

∙ Inserted a new Case 8-2: In Re Simon Shio Tam highlighting how trademark law has recently
changed to potentially allow more controversial trademarks to be issued.
∙ Added a new box E-Commerce and the Law: Copyright law has undergone multiple changes
as new ways to reproduce and distribute copyrighted content multiply alongside frequent
new developments in technology.

∙ Added a new Point/Counterpoint: Should Corporations be Allowed to Patent Genes? This

issue is becoming more important as pharmaceutical companies work to develop new treat-
ments based on genetic manipulations.

CHAPTER 9: Introduction to Contracts and Agreement

∙ Added new Exhibit 9-1: The Formation of A Contract, that illustrates how a contract is
formed, which may help those students who are more visual learners.
∙ Added new Case 9-2: Wrench, LLC. V. Taco Bell Corp., a case illustrating circumstance
under which a court may find an implied-in-fact contract.
∙ Inserted new Point/Counterpoint: Should Contract Law be Used to Enforce Surrogacy
Agreements? This controversy may lead to some interesting discussions because it forces
students to think about not just surrogacy contracts, but the general issue of whether there
are certain things that we should not be allowed to contract for.

CHAPTER 10: Consideration

∙ Added new Case Nugget in “Adequacy of Consideration” section: McClellan v. Charly.
∙ Added new Case 10-2: Bouton v. Byers.
∙ Added New Case 10-4 in “Rules of Consideration” section: Simmons v. Simmons Students
are often shocked to discover that a promise, even when made in writing and put into an
affidavit by a lawyer, may not be binding.
∙ Updated Point/Counterpoint to: Should Past Consideration Be Acceptable Consideration for
a Contract?

CHAPTER 11: Capacity and Legality

∙ Added new Case 11-1: Lopez v. K-Mart Corporation, that illustrates how the courts grapple
with the issue of whether to allow a minor to disaffirm a contract.
∙ Added new Exhibit 11-1: The Three I’s of Incapacity: General Rules
∙ Added new Point/Counterpoint: Should Employer-Employee Covenants Not to Compete be
Eliminated?
xvi Preface

CHAPTER 12: Reality of Assent

∙ Added new Case 12-2: Fantastic Sams Salons Corp. v Pstevo, LLC and Jeremy, Baker about
how to prove the elements of fraud.
∙ Added new Point/Counterpoint: Should Contracts Made through Tweets be Legally Binding?

CHAPTER 13: Contracts in Writing and Third-Party Contracts

∙ Added new Case 13-1: Heritage Constructors, Inc. v Chrietzberg Electric, Inc. and Richard
Marc Chrietzberg.
∙ Added Exhibit 13-1: Requirements of a Writing Sufficient to Satisfy the Statute of Frauds
under the Common Law
∙ Added new Point/Counterpoint: Should Obligors Have a Say in Who Becomes an Assignee?

CHAPTER 14: Discharge and Remedies

∙ Added new Exhibit 14-1: Methods of Discharging a Contract.
∙ Added new Case 14-1: Mind & Motion Utah Investments, LLC, Appellee v. Celtic Bank
Corporation.
∙ Added new Point/Counterpoint: Should Specific Performance Automatically be Granted in
Every Breach of Contract for the Sale of Real Property?

CHAPTER 15: Formation and Performance of Sales and Lease Contracts

∙ New exhibits 15-3 and 15-4 provides greater clarity in understanding in a table format dif-
ferences in the UCC, Common law, and CISG.

CHAPTER 16: Sales and Lease Contracts: Performance, Warranties, and Remedies
∙ New Case Nugget: Implied or Express Warranty in the “Warranty Disclaimers and Waivers”
section.
∙ New Point/Counterpoint at end of chapter to tie in with the new Case Nugget on warranty
disclaimer.

CHAPTER 17: Negotiable Instruments: Negotiability and Transferability

∙ Added new Case Nugget: Requirements for ATM Operators to Recover Use Fees.
∙ Added new Point/Counterpoint: Should the Consumer Financial Protection Board (CFPB)
Tighten Regulations on Payday Lenders?
∙ Added new Case 17-2: Jones v. Wells Fargo Bank.

CHAPTER 18: Holder in Due Course, Liability, and Defenses

∙ Added new Case 18-2: Creative Ventures, LLC v. Jim Ward and Associates, to reinforce the
importance of being a holder in due course.
∙ Created a new Point/Counterpoint: Does the Shelter Principle Violate Basic Rules of Fairness?

CHAPTER 19: Secured Transactions and Bankruptcy

∙ Updated Case Opener: M&T Bank v. Bolden.
∙ Added new Case 19-1: Price Auto Sales, Inc. v. Sanders, regarding peaceful repossession of
collateral entitled.
∙ Added new Case Nugget: Helms v. Certified Packaging Corp., presenting the problem of
what constitutes proceeds of collateral. The case addresses both topics in the chapter by
presenting conflicting claims of a secured creditor and a bankruptcy trustee to insurance
proceeds paid as a result of damage to the underlying collateral.
 Preface xvii

∙ Added new Case 19-2: In re Arkuszewski, which determined whether a debtor who began
mandatory credit counseling but did not complete it until after the filing of the petition was
still eligible for bankruptcy protection.
∙ Updated federal bankruptcy exemptions in Exhibit 19-4 and non-dischargeable debts under
the Bankruptcy Code in Exhibit 19-6.

CHAPTER 20: Agency and Liability to Third Parties

∙ Added 2016 material discussing Federal changes in the law affecting the rules governing
agency/employer responsibilities and liability.
∙ Added New Point/Counterpoint: Should the U.S. Adopt the European Union’s Post-Termination
Compensation Policies?
∙ Added new Case 20-1: Glenn v. Gibbs.

CHAPTER 21: Forms of Business Organization

∙ Added new Point/Counterpoint: Should Aspiring Business Owners Form an LLC Instead of
a Corporation?
∙ Added new Case 21-2: Patterson v. Domino’s Pizza.

CHAPTER 22: Corporations: Formation and Organization

∙ Clarified that ultra vires is uncommon, but important, in response to a reviewer’s suggestion.
∙ Clarified the extent of the requirements of the Uniform Partnership Act in response to a
reviewer’s suggestion.
∙ Added clarification as to why LLCs are now such a popular form of business in response to
a reviewer’s suggestion.
∙ Added additional description regarding franchises in response to a reviewer’s suggestion.
∙ Added new Case 22-2: KDW Restructuring & Liquidation v. Greenfield, which represents a
clear statement of the contemporary application of the business judgment rule.

CHAPTER 23: Securities Regulation

∙ Added new Case 23-2: Levista, Inc. v. Ranbaxy Pharmaceuticals, Inc.
∙ Added new Point/Counterpoint: Should Previous Dealings of the Parties Control the Con-
tractual Relationship?

CHAPTER 24: Employment and Discrimination Law

∙ Added two new learning objectives and sections:
∙ 24-7 May employers use social media in employment decisions?
Justification: Why add? The issue of the use of social media by employers in hiring and
firing decisions is a hot topic and one that is fraught with potential pitfalls. Savvy employ-
ers must be informed as to when and how using social media for such purposes is wise and
when it should be avoided (privacy issue).
∙ 24-8 What are the rights and responsibilities of employers when hiring foreign workers?
Justification: Why add? The recent executive orders related to immigration have made this
a hot topic. United States’ employers want to be able to access the best talent worldwide but
also avoid legal entanglements. All businesses need to be aware of the responsibilities they
undertake when hiring foreign workers (immigration issue).
∙ Sexual Orientation Discrimination: Added two major developments in the law regarding
sexual orientation discrimination – an agency case and a federal circuit court case extending
the definition of “sex” discrimination under Title VII to include discrimination based on
sexual orientation.
xviii Preface

∙ Added new Case 24-2: Donald Baldwin, Complainant v. Anthony Foxx, Secretary, Dept.
Of Transportation (FAA), Agency, First time the EEOC (as an agency) interprets “sex” dis-
crimination under Title VII as including discrimination based on sexual orientation.
∙ Discrimination Based on Marriage: Deleted section re: split among states. Added new sec-
tion re: U.S. Supreme Court’s 2015 decision granting marriage equality.
∙ Added new Case 24-3: Nickel v. Staples Contract and Commercial, an age discrimina-
tion case in which “substantial evidence” of discrimination prevailed over allegations of
employee theft, resulting in $16M verdict.
∙ Added new Case Nugget: Roe v. Teletech Customer Care Mgmt. (Colo.) LLC on whether an
employee may be fired for using medical marijuana.
∙ Added new Point/Counterpoint: Should Employers Be Permitted to Use Social Media in
Hiring and/or Firing Decisions?

CHAPTER 25: Consumer Law

∙ Clarified the rulemaking authority of the FTC in response to a reviewer’s comment that the
concept had not been introduced at the time it first appeared in the chapter.
∙ Added a section about data mining and privacy.
∙ Added a discussion of the reduced regulations placed on data mining by legislation during
President Trump’s first hundred days.
∙ Added new Point/Counterpoint: Should Prescription Drugs be Advertised Directly to
Consumers?
∙ Added new Case 25-2: Crawford v LVNV Funding
Acknowledgments

This final component of the Preface contains a palpable tone of gratitude and humility. Any proj-
ect the scope of Dynamic Business Law: The Essentials, Fourth Edition, is a collective activity;
the authors are but the visible component of a remarkably large joint effort. We want to thank
several contributors by name, but there are doubtlessly many other students, colleagues, and
friends who made essential contributions to these pages.
Our largest gratitude goes to the dozens of business law colleagues who saved us from many
embarrassing errors while tolerating our stubborn reluctance to adhere to certain of their sug-
gestions. In addition, the book could not have been written without the competent and dedicated
research assistance we received from Arata-Enrique Kaku, Alex Jacobs, and Caitlyn Reeder.
Their desire to improve our book is a compliment to their character.
We’d like to thank the following people for helping us with their comments and feedback on
various stages of our manuscript:

William H. Bradley, Azusa Pacific University Christine W. Lewis, Auburn

Carol Brady, Milwaukee Area Technical
College
Peter D. Churchill, Diablo Valley Community
College
Nanette Clinch, San Jose State University
Richard Alan Cooper, Lindenwood University
Patrick Creehan, Flagler College–Tallahassee
Branch
Peter Dawson, Collin College
Cheryl Davisson Gracie, Washtenaw Commu-
nity College
Laura Drake, Cincinnati State
Pamela Evers, University of North Carolina
Wilmington
Ronald Feinberg, Suffolk County Community
College
Armand Grunberger, American University–
Washington, D.C.
Marc Hall, Auburn University–Montgomery
Mark E. Handley, Delaware Technical &
Community College
Cheryl L. Head, Central Piedmont Commu-
nity College
Lynda Hodge, Guilford Technical Community
College
Sarah Holcomb, Northern Arizona University
Russell E. Holmes, Des Moines Area Com-
munity College
Catherine G. Jones-Rikkers, Grand Valley
State University
Steven C. Kaber, Baldwin-Wallace College
Raymond Keener, Marshall University
University–Montgomery
Darryll Lewis, University of Nebraska–Omaha
Jessica A. Magaldi, Pace University
Jason Bryan Malone, Virginia Tech
Lisa Mayer, Bergen Community College
Linda B. Meltzer, Queensborough Community
College
Christine Mooney, Queensborough Commu-
nity College
Sandra Mullings, Baruch College, CUNY
Tonia Murphy, University of Notre Dame
Michael J. O’Hara, University of
Nebraska–Omaha
Gary Patterson, California State University,
San Bernardino
James Alan Pilant, Northwest Arkansas Com-
munity College
Michael Rogers, Albany State University
Sean D. Scott, St. Petersburg College
Stanley Seat, University of Texas at Arlington
Bonnie S. Shane, Sinclair Community College
Harvey Slentz, Florida State
College–Jacksonville
Michael Spagnoli, American International
College
Jennifer Thor, Oakland University
Mary Tripp, Wisconsin Indianhead Technical
College
Dr. Robert J. Woods, Texas Woman’s
University
Stephen Yoder, University of Alabama at
Birmingham
xix
xx Acknowledgments

Finally, this content was but a raw, unsold manuscript until the skilled publishing team refined
it. Our manuscript benefited immeasurably from the guidance of the multiple levels of skill
provided to us by McGraw-Hill Education. We respect and honor our Managing Director, Tim
Vertovec; our Product Developer, Jaroslaw Szymanski; Executive Portfolio Manager, Kathleen
Klehr; Senior Marketing Manager, Michelle Williams; and Lead Content Project Manager, Pat
Frederickson.
Brief Contents

P A R T 1
The Legal Environment of Business
chapter 1 An Introduction to the Fundamentals of Dynamic
Business Law 1
chapter 2 Business Ethics and Social Responsibility 13
chapter 3 The U.S. Legal System and Alternative Dispute Resolution 28
chapter 4 Administrative Law 59
chapter 5 Constitutional Law 80
chapter 6 Criminal Law and Business 105
chapter 7 Tort Law 131
chapter 8 Real, Personal, and Intellectual Property 157

P A R T 2
Contract Law
chapter 9 Introduction to Contracts and Agreement 180
chapter 10 Consideration 200
chapter 11 Capacity and Legality 216
chapter 12 Reality of Assent 236
chapter 13 Contracts in Writing and Third-Party Contracts 252
chapter 14 Discharge and Remedies 281

P A R T 3
Domestic and International Sales Law
chapter 15 Formation and Performance of Sales and Lease
Contracts 303
chapter 16 Sales and Lease Contracts: Performance, Warranties, and
Remedies 324

P A R T 4
Negotiable Instruments and Banking
chapter 17 Negotiable Instruments: Negotiability and Transferability 344
chapter 18 Holder in Due Course, Liability, and Defenses 371

xxi
xxii Brief Contents

P A R T 5
Creditors’ Rights and Bankruptcy
chapter 19 Secured Transactions and Bankruptcy 395

P A R T 6
Agency
chapter 20 Agency and Liability to Third Parties 421

P A R T 7
Business Organizations
chapter 21 Forms of Business Organization 450
chapter 22 Corporations: Formation and Organization 472
chapter 23 Securities Regulation 503

P A R T 8
Government Regulation
chapter 24 Employment and Discrimination Law 525
chapter 25 Consumer Law 557

APPENDIXES
appendix A The Constitution of the United States of America A
appendix B Sarbanes-Oxley Act of 2002 B-1

Glossary G-1
Index I
Contents

Preface vii Venue 35

Forum Selection and Choice of Law 35
P A R T 1 Case 3-3: Atlantic Marine Construction Company, Inc. v.
United States District Court for the Western District of Texas
The Legal Environment of Business Et Al. 35
The Structure of the Court System 37
1 An Introduction to the Fundamentals of The Federal Court System 37
Dynamic Business Law 1 State Court Systems 38
Law and Its Purposes 3 Threshold Requirements 40
Classification of the Law 3 Standing 40
Sources of Business Law 4 Case or Controversy 41
Constitutions 4 Ripeness 41
Statutes 4 Steps in Civil Litigation 41
Cases 5 The Pretrial Stage 42
Administrative Law 7 The Trial 45
Treaties 7 Posttrial Motions 47
Executive Orders 8 Appellate Procedure 47
Schools of Legal Interpretation 8 Alternative Dispute Resolution 49
Global and Comparative Law 9 Primary Forms of ADR 50
Questions & Problems 10 Negotiation 50
Mediation 51
2 Business Ethics and Arbitration 52
Social Responsibility 13 Other ADR Methods 54
Business Law and Business Ethics 15 Med-arb 54
Ethical Failures can be Bad for Business 16 Summary Jury Trial 54
What Are Values? 17 Minitrial 54
How do Values Provide a Starting Point for Thinking about Early Neutral Case Evaluation 54
Business Ethics? 18 Private Trials 55
The WH Framework for Business Ethics 19 Summary 55
Who are the Relevant Stakeholders? 20 Point/Counterpoint 56
How Do We Make Ethical Decisions? 20 Questions & Problems 57
Point/Counterpoint 24
Questions & Problems 25
4 Administrative Law 59
Case Opener: Does the EPA Have an Obligation to Regulate
3 The U.S. Legal System and Alternative Automobile Emissions? 59
Dispute Resolution 28 Introduction to Administrative Law 60
Case Opener: Questionable Jurisdiction over Caterpillar 28 What is Administrative Law 60
Jurisdiction 29 Why and How are Agencies Created? 60
Original Versus Appellate Jurisdiction 29 Types of Administrative Agencies 61
Jurisdiction Over Persons and Property 29 How Are Agencies Run? 63
Case 3-1: Illinois v. Hemi Group LLC 31 Informal Rule Making 63
Subject-Matter Jurisdiction 32 Formal Rule Making 64
Case 3-2: Hertz Corporation v. Friend United States Hybrid Rule Making 65
Supreme Court 33 Exempted Rule Making 65
xxiii
xxiv Contents

Case 4-1: Doe v. United States Sec U.S. District Court for Point/Counterpoint 101
the Northern District of California 66 Questions & Problems 102
Regulated Negotiation 67
Problems Associated with Rule Making 67 6 Criminal Law and Business 105
Other Administrative Activities 68 Case Opener: A Questionable Stock Investment 105
Case 4-2: Yan Ju Wang v. George Valverde Court of Appeal The Nature and Elements of a Crime 106
of California, Second Appellate District 68 Elements of a Crime 106
Limitations on Agency Powers 69 Classification of Crimes 107
Political Limitations 69 White-Collar Crime 107
Statutory Limitations 70 Specific White-Collar Crimes 108
Judicial Limitations 70 Case 6-1: United States of America v. Thomas Tanke 111
Case 4-3: Northwestern University and College Athletes Corporate Criminal Liability 117
Players Association (Capa) 71 Case 6-2: United States v. Park United States Supreme
Informational Limitations 73 Court 118
Case 4-4: Wilfredo Golez v. John E. Potter, Postmaster Criminal Procedure 119
­
General, U.S. Postal Service 73 Pretrial Procedure 119
Federal and State Administrative Agencies 75 Trial Procedure 121
Summary 76 Posttrial Procedure 122
Point/Counterpoint 77 Tools for Fighting Business Crime 124
Questions & Problems 77 RICO 124
The False Claims Act 124
5 Constitutional Law 80 The Sarbanes-Oxley Act 125
Case Opener: The Constitutionality of the Affordable Care State Whistle-Blower Protection Laws 127
Act 80 Summary 127
The U.S. Constitution 81 Point/Counterpoint 128
Judicial Review 81 Questions & Problems 128
The Supremacy Clause and Federal Preemption 82
The Commerce Clause 83 7 Tort Law 131
The Commerce Clause as a Source of Authority for the Fed- Case Opener: Plastic Surgeon Defamation 131
eral Government 83 Introduction to Tort Law 132
Case 5-1: Christy Brzonkala v. Antonio J. Morrison Et Al. Classification of Torts 133
United States Supreme Court 84 Intentional Torts 133
The Commerce Clause as a Restriction On State Intentional Torts against Persons 133
Authority 85
Case 7-1: Aaron Olson, Appellant, v. Centurylink,
Case 5-2: Black Star Farms, LLC, Et Al. v. Jerry Oliver, ­Respondent Court of Appeals of Minnesota 138
Arizona Department of Liquor License and Control Et Al.
Intentional Torts against Property 139
U.S. Court of Appeals for the Ninth Circuit 86
Intentional Torts against Economic Interests 140
Taxing and Spending Powers of the Federal Government 87
Negligence 142
Other Constitutional Restrictions on Government 88
Duty 142
The Privileges and Immunities Clause 88
Breach of Duty 143
The Full Faith and Credit Clause 88
Causation 143
The Contract Clause 88
Damages 145
The Amendments to the Constitution 89
Plaintiff’s Doctrines 145
The First Amendment 89
Res Ipsa Loquitur 145
The Fourth Amendment 94
Case 7-2: Swoboda v. Fontanetta 146
Case 5-3: David Leon Riley v. California and
Negligence per se 147
United States v. Wurie 95
Defenses to Negligence 147
The Fifth Amendment 96
Contributory Negligence 147
The Ninth Amendment 99
Comparative Negligence 148
The Fourteenth Amendment 99
Assumption of the Risk 148
Summary 100
Special Defenses to Negligence 149
Another random document with
no related content on Scribd:
be brought from a vessel which had recently reached the coast. A
great event was the arrival of three vessels with two hundred
Spaniards, eighty horses, and a full complement of arms,
ammunition, and other effects, partly bought and partly enlisted by
the agents whom Cortés had despatched to the Islands during the
previous autumn. Among the new-comers were Julian de Alderete of
Tordesillas, appointed royal treasurer for New Spain, and the
Franciscan Pedro Melgarejo de Urrea of Seville, bearing a supply of
papal indulgences for the men who had been engaged in the
crusade. That the soldiers were conscious of frequent transgressions
may be judged from the suggestive and not wholly reverential
observation of Bernal Diaz, that “after patching their defects the friar
returned to Spain within a few months, a rich man.”[1075]
Cortés was cheered by offers of submission and alliance, owing
partly to the good offices of Tezcucans and other allies. Some came
from places quite distant, such as Nautla and Tuzapan, on the coast
north of Villa Rica, laden as usual with presents.[1076] Another
pleasing evidence of still more devoted loyalty came not long after
from the south, from the country of the valiant Chinantecs, of the
long pikes. During the great uprising, when Spaniards in small or
straggling parties had everywhere been slaughtered, this people
faithfully protected the two soldiers who happened to be with them,
and were in return aided by their prowess and advice to achieve
victories over adjoining tribes. One of these men, Captain Hernando
de Barrientos, sent two natives in April with a letter to his
countrymen imparting the assurance that Chinantla and its six sub-
towns were loyal.[1077]
The recent successes and the arrival of the two hundred men
induced Cortés once more to propose peace to Quauhtemotzin. To
this end, during passion week, he bade some of the captured nobles
proceed to Mexico with a letter as a symbol of their commission, and
impress upon their master the superiority in arms and skill of the
Spanish forces, their constant and large reinforcements, and their
unvarying success in the field. They must point out the generous and
humane treatment of the provinces which had submitted, and assure
the Aztec leaders that equal forgiveness would be accorded them.
Refusal to return to their allegiance would lead to the destruction of
themselves and their city. Only two of the captives ventured to
accept the commission, for according to Aztec articles of war any
noble who returned to his country after having been captured by an
enemy was doomed to decapitation unless he had performed some
extraordinary deed.[1078]
No answer came from Mexico, and it was afterward learned that
the messengers had suffered death. The Aztec ruler had not even
given a thought to peace. He was watching his opponents, prepared
to take advantage of any neglect or relaxation in their effort. No
sooner had Sandoval been induced by peaceful appearances to
retire from Chalco than Aztec forces again prepared to invade the
province. The Chalcans had due warning, and close upon the heels
of Sandoval came two messengers lamenting louder than ever, and
exhibiting a painting wherein were named the many towns whose
forces were coming upon them, fully fifty thousand strong. These
constant menaces and movements were exasperating, and Cortés
resolved personally to inflict a lesson which might be lasting. At the
same time he proposed to complete his reconnoissance of the lake
region and encourage his troops with spoils from hostile localities
whereon the Aztecs yet relied for support.[1079]
Cortés selected thirty horse, three hundred infantry, a number of
Tlascaltecs, and over twenty thousand Tezcucans, under Prince
Ixtlilxochitl, to which twice that number of other allies were added on
the way. A large proportion of archers and aquebusiers were taken,
together with Alvarado, Olid, Alderete, Melgarejo, and others, while
Sandoval was left in charge of Tezcuco, with instructions to watch
and promote the completion of the brigantines against which several
incendiary attempts had been made.
The expedition left Friday, the 5th of April, and passed through
Chalco, Tlalmanalco, and Chimalhuacan,[1080] and crossing in a
south-westerly direction into the Totolapan province, they entered the
hills which form the southern border of the Mexican valley. By this
time the forces had assumed proportions hardly inferior to those of
the Iztocan campaign, when over one hundred thousand moved
against the foe. Highly picturesque was the spectacle of this army, its
naked hordes of warriors relieved by plumage and glittering iztli
points which rose above the broad line of gaudy shields; its white
adventurers in mail of cotton and metal, surmounted by bright
helmets, and armed knights on proudly stepping steeds: picturesque
in particular as it wound in almost endless line along the rounded
slopes of the cliffs, or climbed in clearly defined file across the hill-
tops, only to descend again into gulches gloomy as their own sinister
purpose.
Alarmed by the invasion, the inhabitants had abandoned their
valley homes, and had sought refuge on the summits, whence they
hurled missiles at the passing lines. Little attention was paid these
irregular bands, composed as they were to a great extent of women
and children. On entering the Tlayacapan Valley, however, and
observing on the craggy sides of an almost perpendicular isolated
rock, perched there like an eagle’s nest, a place of refuge peopled
with more pretentious opposers, in a fit of insensate folly Cortés
ordered the place to be assailed. He seemed to think the honor of
the army demanded it, and was ready to stake the lives of valuable
men on its destruction.
Orders were given to attack from three several sides, the
steepest being assigned to Alférez Corral, a brave and spirited
leader. Verdugo and Villafuerte were given another side, and Ircio
and Monjaraz the third. Each party consisted of about threescore
men, and included archers and arquebusiers. At a given signal all
rushed forward to the ascent. Soon they were on hands and knees,
crawling over projections and pulling themselves up by means of
shrubs. All the while stones and darts rattled on helmet and
breastplate; and huge rocks came rolling down upon them. In vain
they sought shelter in crevices and under crags; they must face the
storm. Bernal Diaz followed Corral, and after receiving many a hard
knock they gained what was called two turns of the rock. There they
paused and looked around, wondering at their success thus far.
Supporting himself against a small tree, his face bathed in blood, his
banner rent, Corral said, “Señor Diaz, it is useless to advance
farther; not a man will survive.” Then they shouted a warning to
Pedro Barba, at the head of his archers, not to climb farther. “The
order is to advance!” was the reply. The next moment Barba was
wounded by a stone, and a soldier at his side was killed. Cortés then
sounded the recall, but not until eight brave men had laid down their
lives, victims of their commander’s puerility, and of the rest most of
them returned wounded.[1081]
The recall was likewise prompted by the approach of a
considerable force in the valley. This the cavalry charged and quickly
routed, following in close pursuit, though the broken ground soon
enabled the fugitives to gain shelter. During this ride some of the
horsemen came, a league beyond, to another hill fortress, strong in
its natural features, and held by a large force. Near by were some
springs. The need of water was pressing, which afforded a plausible
excuse for abandoning the scaling of Tlayacapan, and the whole
force was moved to the springs. Early next morning Cortés
examined the approaches to the new stronghold. It extended over
three hills, the central one exceedingly steep and held by the largest
force; the others easier of ascent, though higher, and occupied by
smaller numbers. In reconnoitring, Cortés advanced toward the
centre. This movement led the occupants of the other hills to infer an
attack on the central height, and they began to abandon their
positions with a view to reënforce the threatened point. Observing
this, Cortés ordered Barba to occupy the most commanding
elevation with some fifty arquebusiers and archers, while he himself
continued to scale the centre as a feint, for there was little hope of
capturing a point so steep and strongly held. The stones and darts
rained here as previously, and man after man was struck down,
some bleeding freely from the wounds sustained.[1082]
Meanwhile Barba’s sharp-shooters had made so effective a use
of their weapons that within half an hour the volleys from the fortress
ceased, and the women began to wave their robes in token of truce,
shouting their submission. Cortés graciously met the advances, and
extended full pardon. He also prevailed on the chiefs to induce the
Tlayacapans to submit. On the extensive surface of the rock were
collected all the inhabitants of the neighborhood, with their effects,
which Cortés ordered not to be touched.[1083]
The army remained encamped for two days to refresh
themselves after their arduous march, and after sending the
wounded to Tezcuco, Cortés proceeded to Huastepec. The report of
the clemency extended to preceding settlements had a reassuring
effect on this town, whose cacique came forth to welcome them, and
tender his palace for their entertainment. This was situated in a
garden, celebrated throughout New Spain for its beauty and extent,
and the immense variety of its plants, collected partly for scientific
purposes. A river with tributary canals flowed through its grounds,
which extended over a circuit of nearly two leagues, murmuring its
melody in unison with winged songsters hidden in arbors or playing
between bush and hedge, mingling their bright color with the green
expanse. Adjacent were steep rocks, on whose smooth surface were
sculptured the portraits of noted warriors, statesmen, and orators,
with hieroglyphic inscriptions of their fame. It was a paradise formed
equally for student and idler, and to the weary soldiers no spot could
perhaps have proven so grateful. Cortés certainly grows ecstatic in
describing it, declaring it “the largest, most beautiful, and freshest
garden ever seen.”[1084] Tempting as was the retreat, Cortés tore
himself from it the following day, and proceeded in a south-westerly
direction to Yauhtepec. Although many warriors were gathered there,
they fled on the approach of the Spaniards, and were chased, with
some slaughter, for about two leagues, into the town of Xiuhtepec.
[1085] The women and effects there found were appropriated as
spoils, and rendered agreeable the two days’ stay. The ruler failing to
appear, the place was fired, and terrified by this warning the lord of
Yauhtepec hastened to proffer submission.
After a day’s hard march the army came in sight of
Quauhnahuac,[1086] capital of the Tlahuicas. They were one of the
Nahuatlaca tribes, which according to tradition had entered the
Anáhuac country to supplant the Toltecs. Coming rather late, they
found their brethren already in possession of the lake region, and so
they crossed the range to seek a home on the headwaters of the
Zacatula, where soon a number of settlements rose round
Quauhnahuac. They afterward fell under the sway of the
Chichimecs, and finally the Aztecs took advantage of internal discord
to establish sovereignty,[1087] maintaining it by a garrison in the
capital. This was a natural stronghold, situated on a tongue of land
between two steep ravines over forty feet in depth, and through
which ran a little stream during the rainy season. It was further
protected by strong walls, particularly on the side where a strongly
guarded gate opened to a fine stretch of country. Two other
entrances faced the ravines, sometimes spanned by bridges, which
were now removed.
Situated at the gateway to the tropical southern valleys, between
which and the colder lake region interposed a range of mountains,
the spot stood as a new Eden in its manifold beauties. A sight even
of the pine-fringed mountains that rolled off toward the north, with
their green slopes shaded by oak and birch, and bathed in soft
though bracing airs, was refreshing to the indolent inhabitants of the
burning plain beyond. On the other hand the sturdy toilers of the
northern plateaux might in this sunny south seek relaxation in the
varied charms of a softer air balmy with the incense of a more
lustrous vegetation.[1088]
It was an opulent community that of Quauhnahuac, surrounded
as it was by endless resources and advantages, and the people
were in no mood tamely to yield their wealth to invaders. And in this
determination they were sustained by their lord, Yohuatzin,[1089] who
was not only a vassal but a relative of Quauhtemotzin. Confident in
the impregnable position of his city, in which supplies were ample, he
replied with volleys to the demands of the Spanish forces as they
appeared on the other side of the ravines. It seemed almost
impossible to effect a crossing and climb the steep wall of the ravine
to the city; nevertheless Cortés selected a position and began to
open fire so as to occupy the attention of the garrison and cover the
scaling parties.
While they were thus busied a brave Tlascaltec reconnoitred and
came to a point half a league beyond, where the ravine was steepest
and narrowed to an abyss. On the two sides grew two large trees,
which inclined toward each other, with branches intertwined, forming
a sort of natural bridge, though by no means secure. He called the
attention of his party to this and led the way across, followed by
several Spaniards. The natives, who were more accustomed to this
kind of tactics, found comparatively little difficulty in swinging
themselves across; but to the soldiers it was far from easy, and three
of them, overcome by dizziness or weight of armor, slipped and fell.
[1090]
 The attention of the inhabitants being attracted elsewhere, a
number of the invaders had gained a secure foothold within the city
before they were observed. Even now a few resolute men might
have driven them back, but such were wanting, and the sudden
appearance of the dreaded white men, as if indeed they had
dropped into the stronghold from some cloud made radiant by the
sun whose reputed children they were, struck terror to the hearts of
the poor natives. All impotent and nerveless, they permitted the
daring strangers to lower the drawbridge, and turned to spread the
panic. Meanwhile the reports of a formidable army advancing from
the rear so wrought on the fears of the garrison that, when the
handful who had crossed on the bushy bridge fell on them, they
offered no resistance. This also allowed the scaling forces to pour in,
so that within a short time the siege was turned into a rout, wherein
the cavalry played a prominent part. The zeal of the allies was
already indicated by smoky columns in different parts of the city, and
the foot-soldiers hastened to share in the rich plunder and intercept
the women.
Most of the fugitives had gathered on an adjacent height, and
though no attempt was made that day to molest them, yet they
began to fear that men who could so readily capture one of the
strongest fortresses in the country, would find no difficulty in reaching
them anywhere; therefore, after listening to the advice of
messengers sent by Cortés, Yohuatzin concluded to surrender, and
presented himself on the following day with a large retinue and rich
presents. The Mexicans were as usual blamed for the opposition
offered. He would have submitted before, but thought it best to
expiate the fault of resistance by allowing the Spaniards to pursue,
so that after spending their fury they might be more ready to forgive.
[1091]

There was no time at present to extend the reconnoissance

farther in this direction, and after a brief rest Cortés turned northward
to the lakes. The route over the mountains proved far more difficult
than before, and after issuing from the pine forest the army entered a
desert country terminating in a three-league pass through the Ajuzco
Mountains. Here thirst became so intense that several natives
succumbed.[1092] This suffering was relieved in a hamlet not far from
the pass.
On the following day they passed through a fine and cultivated
country toward Xochilmilco, that is to say, Field of Flowers, aptly
named, for round almost every house, particularly on the outskirts,
was a flower-garden enclosed by canals. Many of them were of the
chinampa class, or floating gardens,[1093] the outgrowth of early
Aztec weakness, now forming a picturesque border to the lake
towns. Altogether the aspect was most pleasing, while the buildings
of the central parts were artistic and striking. Besides the strength
added by canals and moats, pile buildings were frequent, and
intrenchments had been thrown up and drawbridges raised to defend
the approach against any enemy of the Aztecs, for its loyalty to the
queen city was fully as great as that of Iztapalapan. It was the most
important place on the thickly settled fresh-water lake. Bishop
Garcés relates that angels were heard to sing praises in the Mexican
tongue when it was converted.[1094] The usual summons was issued
by the Spaniards, and no heed being given, they attacked in three
divisions by different approaches. The enemy fell back behind the
raised bridges and intrenchments, whence they kept up a steady
volley. The archers and arquebusiers replied briskly, and covered the
van as it plunged into not very deep water and waded across to
capture the fortifications. This effected, the foe was driven from one
retreat to another. Seeing how affairs went, they sought to parley, but
the pursuers paid no heed, regarding it as a trick to gain time for the
removal of their families and property. Within half an hour the greater
part of the city was won, and soldiers and allies were sacking as they
advanced. The foe rallied now and then to cover their retreat, and in
one instance managed to despatch two soldiers who had allowed
avarice to overcome prudence.
Not long after, a body of some ten thousand warriors, reënforced
by fugitives from the city, was seen advancing from the rear as if to
cut off retreat. They were already close at hand when first observed,
and without losing a moment Cortés charged them at the head of a
body of cavalry.[1095]
At first they boldly faced the animals, and fought so well as to
severely wound four, besides several riders; but the mounted body
kept breaking through their ranks and then turned to fall on the rear.
This movement proved decisive, and the enemy dispersed in flight,
the horsemen scattering in pursuit. Already weakened by the severe
march across the mountains, the horse of Cortés became quite
exhausted, and while its rider was striking right and left into a large
body of fugitives, it fell. No other horseman being near, the enemy
gathered courage and rushed upon the general, who had risen to his
feet and stood with sword in hand to defend himself. It was a critical
moment, and had not a brave Tlascaltec warrior come to his rescue
thus opportunely, the career of the Estremaduran would have ended
there; for he had already received a severe blow on the head and
was about to be dragged away when thus rescued. The general’s
body-guard then came up and cut in pieces his late stupid assailants
—stupid because they might so easily have killed him, and did not.
[1096]
The pursuit was not long maintained, tired as the horses were,
and remounting his steed Cortés led the way back to camp in the
square.
Late as it was he superintended the filling of all the channels
which broke the causeways, and the erection of defences, and
ordered the soldiers to put in order their arms and prepare arrows.
The forces were distributed at three points, and extra guards were
posted for the night, together with bodies of troops at probable
landing-points. These precautions were prompted chiefly by the
evident effort of the last body of the enemy to shut up the army
within the city, a movement which boded other attempts, as Cortés
rightly supposed.
When Quauhtemotzin heard that the Spaniards had marched
against Xochimilco he called a council to consider the course to
adopt, and the result was the despatch of reënforcements. Finding
that the city had so easily fallen, he became furious. The gods were
indignant at the outrages of the strangers. Arms must be employed
more manfully, and, these failing, the loyal ones must let their nails
grow, as the last means of protection. The first step should be the
recovery of Xochimilco. That very night two thousand canoes were
sent with some twelve thousand warriors, and a similar force by land,
all approaching stealthily, without music.[1097]
The rumor of a probable night attack kept the Spanish camp on
the alert, and advised of this, the enemy made no attack. At dawn
their canoes were already swarming round the city, the inmates
rending the air with loud and repeated shouts, and brandishing their
weapons, those of the chiefs being captured Spanish swords. “With
your own arms you shall be killed, and we will eat you!” they cried.
“We fear you not, for Montezuma is dead!” At the same time the land
forces were seen approaching, evidently to assist the fleet in
besieging the Spaniards within the city, which would give the
Mexicans greater advantage, as they had well learned during the
siege of Mexico. Cortés understood the manœuvre, and leaving the
greater part of the infantry and allies to guard the city, he sallied with
most of the horse, in three parties, a few of the infantry and several
hundred Tlascaltecs, breaking through the enemy’s ranks and
gaining the foot of a hill in their rear, the Tepechpan.
While the enemy were rallying, Cortés led the horse round to
their denser flank, and gave orders to the infantry to allure the
Mexicans by climbing the steepest part of the hill and pretending to
escape. This succeeded, and the next moment they were attacked in
several directions with such effect as to cause a panic and drive
them in flight toward a quarter where one division of horse had taken
a stand. Five hundred Mexicans covered the field and five leaders
were among the captured, while the Spanish loss was only one
soldier and a few allies, including three Tlascaltec chiefs, although a
number were wounded. During the pursuit the foremost division of
horse came upon a further Mexican reënforcement, estimated at ten
thousand, which rallied the fugitives and caused the pursuers to halt.
Soon, however, the remaining force came up, the charge was
continued, and the Mexicans routed.[1098]
Too tired for long pursuit, the Spaniards returned by ten o’clock
in the morning to Xochimilco, where their garrison had repulsed the
lake force. The fight had been fierce, and the soldiers had exhausted
all their ammunition, capturing in return two Spanish swords. These
victories brought little satisfaction, however, for the captives gave
information that the forces so far sent were but detachments of the
armies destined for Xochimilco, which must be recovered, and the
Spaniards driven forth, if it cost the lives of all the men in Mexico.
The Spaniards might defeat force after force, but even victory must
so weaken them that the Mexicans would finally triumph. This
seemed to be confirmed by the movements of the fleet, which,
though repulsed, was still hovering thereabout.
Cortés now gave orders to burn the city, as a warning to the
wilful inhabitants and preparatory to its evacuation. The soldiers,
who had been interrupted in their plundering the day before, obeyed
with alacrity. Xochimilco was a wealthy city, and not a Spaniard or
ally but obtained an abundance of robes, feathers, and other effects,
and even some gold, which helped to cheer those whom ordinary
merchandise and slaves did not satisfy. The enemy had been
watchful, however, and in their canoes they flitted round the city to
cut off stragglers. At one point quite a charge was made, wherein
several Spaniards were wounded and four carried off alive. This
event did more to cast a gloom over the army than many defeats, for
all knew the fate of prisoners.[1099]
After a stay of three days, all fraught with hard fighting, the army
filed out from Xochimilco, presenting the appearance of a dilapidated
caravan rather than of a reconnoitring and fighting expedition, so
much so that Cortés thought it necessary to remonstrate, but in vain.
The enemy hovered about like vultures, to harass them in what they
regarded as a retreat. The march was made in regular fighting order,
with cavalry distributed in three sections, in van, rear, and on flank.
In order to complete the reconnoissance, a north-westerly route was
taken to Coyuhuacan, the centre of a series of inner towns which lay
clustered within a radius of a league and a half, along the shores or
upon islands in the lake, all picturesque in their pyramidal temples
and their white walls, which gleamed amidst blooming orchards and
shady groves. Coyuhuacan itself was a beautiful town, and Cortés
felt so captivated with it that he afterward made it for some time his
favorite residence.[1100] It had been evacuated, but toward and
beyond Mexico the lake teemed with canoes, while in every direction
spread one continuous extent of farms and hamlets, connected by
causeways and roads with busy traffic. To Alderete and friar
Melgarejo this was a novel scene, and they could not refrain from
expressing their admiration at the enterprise and prowess of Cortés
and his followers in undertaking so vast a conquest. God’s aid alone
could have enabled them to succeed as they had done.[1101]
The army remained here over the following day, chiefly to
examine the place as intended head-quarters of a besieging force. It
was found satisfactory; and while arrows were prepared and the
wounded tended, the general advanced along the causeway leading
to Mexico and expended his remaining ammunition in the useless
capture of the temple fortress of Xoloc,[1102] during which a number
of soldiers were wounded, though the enemy suffered considerably.
After offering to heaven the fiery sacrifice of pagan temple, the army
proceeded through Tlacopan without halting, for they had no
ammunition, and this place had been examined on the previous
expedition. This unexpected haste encouraged the Mexicans to
come forth in great numbers and attack the baggage train and rear.
Owing to the level nature of the ground the cavalry found no difficulty
in repelling them, yet they caused more trouble, and succeeded
even in carrying off two of the favorite equerries[1103] of Cortés. He
was deeply grieved at the loss, and partly with a view to avenge
them, partly to inflict a lesson which should save the army from such
annoyance, he formed an ambuscade beside the road with twenty
horse. Seeing the other ten horses engaged as formerly in covering
the rear, the Mexicans continued their pursuit. At a favorable
moment the hidden horsemen appeared, and soon over a hundred
of the flower of the Mexicans lay dead upon the ground,[1104] their
rich panoplies, dresses, and arms offering a pleasing addition to the
already heavy plunder. Freed from further molestation, the army
proceeded through Azcapuzalco and Tenayocan to Quauhtitlan, all
deserted. Here the army clustered round camp fires of green wood,
wet from a recent shower and supperless. Next morning they
followed the route already pursued during the flight from Mexico,
round Zumpango Lake through Citlaltepec, and thence through
Acolman to Tezcuco.[1105]
A mass of booty and slaves being now at hand, a general
distribution was ordered, the second in Tezcuco. Again, says Bernal
Diaz, Cortés disregarded his promises and secured not only for
himself the objectionable fifth, but allowed his favorites to carry off
the prettiest women before they were brought forward at auction.
Many who remembered the former tricks hid their women and said
they had escaped, or they declared them free servants from allied
tribes; while a few managed to obtain a private branding, paying the
fifth required. A large proportion of the soldiers were so heavily in
debt for stores and fifths that their booty left them no surplus.[1106]
While the reconnoitring expeditions had on the whole been
fraught with pecuniary benefit and glory, they had nevertheless
served to open the eyes of many to the difficulty of the great
purpose, the capture of Mexico. This was particularly the case with
the Velazquez party, whose adhesion before the Tepeaca campaign
had been compulsory, and after it mercenary in its motives. Every
obstacle to them appeared terrible, magnified through constant fear
of the dreaded stone of sacrifice, on which so many comrades had
already been laid. And this they were encountering for what? the
advancement of an envied usurper and a pecuniary reward far
beneath their expectations. The failure at Iztapalapan, the repeated
inroads of the Mexicans, unabashed by constant repulses, and the
hardships of the campaigns, particularly the last, all tended to
support their arguments against Cortés’ plans as chimerical,
involving long delays, constant toil, and waste of life, and with poor
recompense save for Cortés and his favorites.
Presently the affair assumed the color of conspiracy, headed by
Antonio de Villafañe, a common soldier from Zamora, who is claimed
by Herrera to have had the active or passive sympathy of some
three hundred malcontents, nearly one third of the army. The
professed object was to secure a pliable leader who would consult
the wishes of the soldiers, even those desirous of returning. Such a
man, and withal of great influence and valor, was Verdugo, the
brother-in-law of the all-powerful patron Velazquez, and him the
conspirators chose as the new captain-general, unknown to himself,
since he might prove too honorable to engage in plots against the
commander. As a reward for his own efforts Villafañe claimed the
position of alguacil mayor, while other friends and influential men of
Narvaez were assured of the remaining offices, from alcalde mayor
and maestre de campo downward, now held by the retainers of
Cortés, as well as a share in the arms and other effects of the
doomed number.[1107] It was arranged that when Cortés was seated
at table with his intimate friends, as Alvarado, Sandoval, Olid, and
Tápia, a letter was to be handed him, as if coming from his father,
and while he was reading, the conspirators should fall on and stab
him and his supporters, since all must be removed who might prove
troublesome. The new officers were thereupon to be proclaimed,
together with the liberal plan agreed on, by which it was hoped to
allure even the friends of Cortés.
There were too many in the secret, however, and Cortés was a
man of magnetic influence. At the eleventh hour, two days after the
return from Xochimilco, says Diaz, an accomplice, struck with
compunction, rushed distractedly to the feet of Cortés and implored
pardon for having even dared to listen to the vile machinations. He
thereupon revealed the plot and stated that Villafañe carried the
names and details on a list in his breast-pocket. Cortés quietly
summoned his captains. He represented the need for a “remedy,
since, besides the scandal, it was evident that all the Spaniards must
perish if once they turned one against the other; and to this end not
only declared foes but allies would join.”[1108]
Attended by Sandoval and others, Cortés hastened to the house
of the accused and found several persons assembled. Some were
secured as they sought escape. Villafañe found time to take a paper
from his breast and tear it in pieces, but Cortés gathered and
arranged them,[1109] and was grieved to read the names of quite a
number of promising persons whom he had honored and regarded
as friends. Villafañe confessed the details of the plot, which had
been forming since the Tepeaca campaign. A court-martial was held,
presided over by Cortés himself, and there being no doubt of his
guilt, the accused was condemned to death and promptly hanged
from the window of his dwelling.[1110]
Cortés had probably no doubt regarding the guilt of the persons
named on the list, but the prosecution of so many notable men might
not be prudent, and would only widen the breach between himself
and the malcontents and gain them sympathy. The day following the
execution the general called a meeting. Many were the consciences
that pricked their possessors to trembling on that occasion. But the
sage Cortés preferred the traitors should risk their necks in winning
for him Mexico, rather than himself to break them with a rope.
Napoleon, who in national warfare could open with his sword the
veins of the people until there poured forth torrents of blood, shrank
in horror from blood shed in civil broils. It was policy with Cortés,
however. So, after finishing his narration of the conspiracy, he coolly
informed them that Villafañe had refused to reveal his accomplices,
and he could not therefore name the guilty. There were no doubt
men amongst them with real or fancied grievances which may have
induced them to harbor resentment; but let them frankly state their
wrongs and he would seek to right them. If he had erred, let the error
be named. The conclusion of the affair created general satisfaction.
Thankful for their escape, the guilty sought both by words and deeds
to prove their devotion, and although Cortés kept his eye upon them,
there was no indication that he suspected any. He rather sought to
win them back with favors.[1111] So impressed were his intimate
followers by the risk to which so valuable a life had been exposed
that they insisted on his accepting a body-guard of twelve select
men, under the command of Antonio de Quiñones, an hidalgo of
Zamora,[1112] who watched over him day and night.

FOOTNOTES
[1062] This is according to Cortés; others differ slightly, and Ixtlilxochitl increases
the Tezcucan force to 60,000. Hor. Crueldades, 13.

[1063] From tocatl and xal, spider and sand. Chimalpain, Hist. Conq., ii. 29. The
lake in which it lies is divided about the centre by an artificial causeway about one
league long, running from east to west, the southern water being now known as
San Cristóbal Ecatepec, from the town of that name, and the northern water as
Xaltocan or Tomanitla, San Cristóbal being also the general term for both waters.

[1064] See Native Races, ii. v.

[1065] Bachiller Alonso Perez, afterward fiscal of Mexico. Bernal Diaz, Hist.
Verdad., 135.

[1066] This incident was commemorated by some poetic follower in a ballad which
became a favorite with the conquerors:

En Tacuba está Cortés,

Con su esquadron esforçado,
Triste estaua, y muy penoso,
Triste, y con gran cuidado,
La vna mano en la mexilla,
Y la otra en el costado.

Which may be translated literally:

In Tacuba stands Cortés,

With his troopers strong and brave:
Sad he was and deeply grave;
Sad, and heavily oppressed.
With one hand his cheek he pressed;
Against his side, the other.

[1067] So runs Bernal Diaz’ account, which appears a little exaggerated, for
recently Cortés had shown the greatest caution, and would hardly have allowed
himself to be so readily trapped on so memorable a spot. Hist. Verdad., 126.
Cortés states that not a Spaniard was lost, though several Mexicans fell. Cartas,
187.

[1068] Herrera, dec. iii. lib. i. cap. vii.

[1069] They begged permission to return home, says Chimalpain, Hist. Conq., i.
31. Herrera relates that the efforts of Ojeda, by Cortés’ order, to take from the
Tlascaltecs the gold part of their booty so offended them that they began to desert.
The extortion was accordingly stopped, dec. iii. lib. i. cap. vii. Clavigero doubts the
story. Prescott regards the departure of the allies as distasteful to Cortés; but we
have seen that he did not care at present to encumber himself with too many
unruly auxiliaries to prey upon the peaceful provinces. The Tlascaltecs would
willingly have remained to share in raiding expeditions.

[1070] Including 8000 Tezcucans under Chichinquatzin. Ixtlilxochitl, Hor.

Crueldades, 15. On March 12th, says Vetancurt, Teatro Mex., pt. iii. 154.

[1071] Also known as Chimalhuacan-Chalco, to distinguish it from Chimalhuacan

on Tezcuco Lake.

[1072] Lorenzana inspected the position in later times. Cortés, Hist. N. Esp., 214.

[1073] ‘Que todos los que allí se hallaron afirman.’ Cortés, Cartas, 190. The
general lauds the achievement with rare fervor for him. Bernal Diaz sneers at the
river of blood story; but then he was not present to share the glory. The Roman
Mario was less dainty than these Spaniards under a similar circumstance,
commemorated by Plutarch; or as Floro more prosaically puts it: ‘Ut victor
Romanus de cruento flumine non plus aquæ biberit quam sanguinis barbarorum.’
Epitome, lib. iii. cap. iii.

[1074] Fifteen, says Bernal Diaz. Chimalpain, the Chalcan narrator, states that his
tribe lost 350 men, but killed 1500 foes, capturing the captain-general,
Chimalpopocatzin, a relative of the emperor, who now became a captain among
the Tezcucans, and was killed during the siege. Hist. Conq., ii. 34. Some of these
facts are evidently not very reliable. He also assumes that Sandoval lost eight
soldiers on again returning to Tezcuco.

[1075] The ‘comissario’ or clerk in charge of the bulls was Gerónimo Lopez,
afterward secretary at Mexico. Bernal Diaz, Hist. Verdad., 129. This author names
several of the arrivals, some of whom became captains of vessels. A number also
arrived during the following week, he adds, notably in Juan de Búrgos’ vessel,
which brought much material.

[1076] Gomara mentions also Maxcaltzinco as a distant place. Hist. Mex., 186.

[1077] The chiefs were awaiting orders to appear before Cortés. The general told
them to wait till tranquillity was more fully restored. The name of the other soldier
was Nicolás. Cortés, Cartas, 203-5. Herrera assumes that Barrientos arrived in
camp during the late Tepeaca campaign, dec. ii. lib. x. cap. xvii.
[1078] Of the rank and file none suffered penalty on returning, for captivity was
regarded as disgraceful only to a noble. Native Races, ii. 419.

[1079] Bernal Diaz states that the soldiers were tired of these repeated calls, many
being also on the sick-list, but Cortés had now a large fresh force only too eager
for a fray attended with spoliation.

[1080] According to a native painting the army entered here April 5th, which is a
day or two too early, and received a reënforcement of 20,000. See copy in
Carbajal Espinosa, Hist. Mex., ii. 523.

[1081] So says Bernal Diaz, Hist. Verdad., 130, who names four. Cortés allows
only two killed and twenty wounded; how many fatally so, he carefully omits to
mention. Cartas, 194.

[1082] Twenty fell, says Bernal Diaz. He speaks of two futile attempts on the
previous evening to scale the central hill. It seems unlikely for soldiers, tired by
repulse and march, to undertake so difficult a feat, and that at the least assailable
point.

[1083] Yet Bernal Diaz relates a story to show that the order was a mere pretence.

[1084] Cartas, 196; Torquemada, i. 536.

[1085] Some write Xilotepec. Bernal Diaz mentions Tepoxtlan, which may have
been visited by a detachment.

[1086] Place of the Eagle. Corrupted into the present Cuernavaca, which
singularly enough means cow’s horn.

[1087] See Native Races, v.

[1088] Cortés was so captivated by the alluring clime and scenery that he made
the town his favorite residence in later years. It was included in the domains
granted to him, and descended to his heirs. Madame Calderon speaks of his
ruined palace and church. Life in Mexico, ii. 50.

[1089] Ixtlilxochitl, Hist. Chich., 311. Brasseur de Bourbourg calls him Yaomahuitl.

[1090] ‘El vno se quebró la pierna ... y se me desvanecia la cabeça, y todavia

pasè yo, y otros veinte, ô trienta soldados.’ Bernal Diaz, Hist. Verdad., 132. Solis
misinterprets the passage, and gives this author credit for leading the party. Hist.
Mex., ii. 362. Vetancurt calls the district toward this spot Amanalco. Teatro Mex.,
pt. iii. 155.